Petition to Seal Denied Because No Arrest, Case Dismissed

The following summary is offered as a cautionary tale, as we believe it epitomizes how some judges will strictly follow the law and others will not. In this case, our petition to seal was denied because our client, age 64 when criminally charged with a crime, was never arrested.

Indeed, Penal Code § 851.91, permitting sealing of an arrest record, begins with the words, “(a) A person who has suffered an arrest that did result in a conviction may petition the court to have his arrest and related records . . .”

Our office certainly knew that this was what the statute states, but we have filed petitions to seal for clients who were also not arrest that the judge granted because it afforded the relief that the legislature intended. In fact, in these earlier cases, the primary objective was having the client’s criminal history for the case erased or deleted (except for law enforcement employment applications), not having the arrest report sealed.

This case was no different. Our client wanted his Department of Justice record regarding the criminal case sealed. He really did not care a darn whether the police report, which was lengthy, was sealed. After all, no one would know to look for the police report if the record of the case filing was removed.

In the present case, in 2019 (after Proposition 64 had passed, legalizing the adult use of marijuana) our client was charged (along with seven of his colleagues, all between the ages of 64 and 80 – not one with a prior criminal history) with violating § 104.15(a)(1) of the Los Angeles City Code (“Unlicensed Commercial Cannabis / Collective Activity”) arising out of their lease to a company that set up shop as a marijuana dispensary without a city license.

The Los Angeles City Attorney’s office also alleged that our client violated Los Angeles City Code §§ 104.15(b)(4) (“renting, leasing or otherwise allow an establishment to engage in unlawful commercial cannabis activity without the business having a license or temporary permit), 12.21(a)(1)(A) (“unlawfully erect, alter, enlarge, move and maintain a building . . . without securing the necessary permits and licenses as required by all laws and ordinances”) and 104.15(b)(2) (“did establish, operate and participate as an employee, contractor, agent or volunteer of an unlicensed commercial cannabis activity in the City”).

Our office filed a motion for judicial diversion for our client, which the judge granted. Our client then completed the terms of judicial diversion and the judge ultimately dismissed the case under Penal Code § 1001.94.

Upon having the case dismissed, we explained that the client could ask to have the court record sealed and the police report sealed. We explained that despite the statute stating one must be arrested, judges would grant the petition.

We then prepared and filed the petition to seal under Penal Code § 851.91. The Los Angele City Attorney’s Office opposed the petition, arguing that our client was not eligible for precisely the reason we knew – he was never arrested. The Los Angeles City Attorney’s office even cited to People v. Hadim (2022, L.A. App. Dist) 82 Cal. App. 5th Supp. 39, which held that without an arrest, the court had no jurisdiction over such a petition.

Greg Hill argued that the judge should nonetheless order the court record and the police report sealed because the legislative intent to was to remove the stigma of having a criminal record when the case ultimately was dismissed, as here. Moreover, this made complete sense with our client, who was 66 years old now and had no criminal history except this case (albeit dismissed). The scar to his name is exactly what the statute was intended to remove or prevent, which is why other courts have granted similar petitions without an arrest because the prosecution does not object (or insist upon such strict interpretation of the statute).

The downtown Los Angeles judge, however, denied our client’s petitions, much to our disappointment.

We offer this summary to warn the reader that while many judges will do the right thing in the interest of justice, particularly if the prosecution is not going to appeal, other judges will strictly follow the text of the statute, even if the result is precisely what the Legislative intent was to avoid.

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