Newport Beach Arrest for Rape, Police Report Sealed

In September 1990, our two clients (brothers) were arrested, along with two additional men, by the Newport Beach Police Department for allegedly violating Penal Code § 261.2, also known as rape by force or fear. The victim, age 21, claimed she went to the hotel room of one of the men, not one of our clients, who then held her down while the three other men had sexual intercourse with her. Our clients were 23 and 24 years old at the time.

Fortunately, no case was filed against our clients (or the other two suspects).

The then-ten year statute of limitations for this offense expired on September 16, 2000.

Senate Bill 813, changing the statute of limitations for rape to having no statute of limitations, became effective on January 1, 2017, and applied to those crimes whose statutes had not expired by January 1, 2017. Therefore, this change in the law did not affect our clients.

Nonetheless, our clients’ criminal histories showed an arrest for a horrific crime, stigmatizing our clients for over three decades before calling Greg Hill & Associates in 2022. For those who considered the criminal histories of our clients, such an arrest suggested some criminal conduct and our clients explanations that no charges were ever filed always seemed evasive and dubious at best.

Each client called Greg Hill & Associates and spoke with Greg Hill, although Greg spent significantly more time with one brother. That brother explained the facts of the case and even emailed Greg a redacted copy of part of the police report, which described the lurid facts of the case. The brother, now 55 and divorced, with two teenagers entering college, was interested in moving to Portugal for a lower cost of living, but understood questions would arise over his arrest for a felony sex offense. After all, Portugal did not want to be seen as another refuge for any Roman Polanski-type of sexual fugitives.

The client had read about sealing a record under Penal Code § 851.91 and § 851.92 and wanted to know if it would help him avoid this uncomfortable, but necessary conversation that might arise. Moreover, if his application for permanent residency in Portugal were denied, he wanted to have all opportunities available in the United States, as he otherwise had no criminal history. The same was true of his brother. While both brothers were employed, they both wanted to relocate to Portugal.

Greg explained that each brother was qualified for relief under §§ 851.91 and 851.92. Penal Code § 851.91(a) states, “a person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92.” Here, each brother suffered an arrest that did not result in a conviction when the then-ten year statute of limitations for this offense expired in September 2000.

Greg explained what constitutes as an arrest that does not result in a conviction. Under Penal Code § 851.91(1), an arrest that does not result in a conviction are where:

The statute of limitations has run on every offense upon which the case was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest; or

The prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following occurred: (i) no conviction occurred, the charge has been dismissed and the charge may not be refiled; (ii) no conviction occurred and the arrestee has been acquitted of the charge; or (iii) a conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.

Here, both our clients met the requirements of Section A. Greg further explained the exclusions to relief under this section, which included:

The client could still be charged with any of the offenses upon which the arrest was based; or

Any of the arrest charges, as specified by the law enforcement agency that conducted the arrest, or any of the charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge; or

The petitioner intentionally evaded law enforcement efforts to prosecute the arrest by absconding from the jurisdiction in which the arrest took place; or

The petitioner intentionally evaded law enforcement efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for the act of identity fraud.

In this case, none of these section applied. Lastly, Greg explained that one is ineligible for relief if one has a “pattern” of arrests or convictions, or a combination of both that would render him ineligible for relief under Penal Code § 851.91(c)(2)(A)(i)(I) (for domestic violence, child abuse or neglect or elder abuse) because each client had no other arrests or convictions for anything. This would be true even if the judge were to characterize the rape arrest as domestic violence for each brother.

The brothers then retained Greg Hill & Associates and our office filed each petition and served each petition on the arresting agency and the Newport Beach District Attorney’s Office.

The petitions for each brother were almost identical. Both petitions explained each brother’s eligibility for relief and how each wanted to remove the stigma of his arrest for a horrific crime, each brother’s plans of moving to Portugal and each brother’s lack of any other criminal history.

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