People v. Hadim

Filed 7/29/22
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
THE PEOPLE, ) No. BR 055272
)
Plaintiff and Respondent, ) Central Trial Court
)
v. ) No. 0CJ00309-03
)
NICK HADIM, )
)
Defendant and Appellant. ) OPINION
)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth
Harris, Commissioner. Affirmed.
Michael N. Feuer, Los Angeles City Attorney; Meredith A. McKittrick, Supervising
Deputy City Attorney; and Sarah Asghari, Deputy City Attorney, for Plaintiff and Respondent
People of the State of California.
Philip Cohen, Esq., Philip Kent Cohen, APC; and Matthew Missakian, Esq., Law Office
of C. Matthew Missakian, Inc., for Defendant and Appellant Nick Hadim.
* * *
After the trial court dismissed the offenses in defendant Nick Hadim’s two cases when
he completed misdemeanor diversion, defendant filed petitions to seal his records pursuant to
1
Penal Code section 851.91.1 The court denied the petitions, and we consolidated his two
appeals from the orders. As discussed below, we affirm. Section 851.91 is limited to granting
a defendant relief by way of sealing the person’s arrest record and court records related to an
arrest, and the court correctly denied defendant’s petitions because he was asked to appear in
court pursuant to a prosecutor letter and was never arrested in connection with the underlying
offenses.
BACKGROUND
In one case, defendant was charged on May 6, 2020 with a misdemeanor pertaining to
his establishing, operating, and leasing an unlicensed commercial cannabis establishment, and a
misdemeanor for illegal use of land stemming from the cannabis activity (L.A. Mun. Code, §§
104.15, subd. (a)(1), 104.15, subd. (b)(4), 12.21, subd. A.1(a), respectively). The offenses were
alleged to have occurred on December 3, 2019. In the other case, defendant was charged on
May 13, 2020 with committing the same offenses on February 12, 2020.
On February 19, 2021, court-initiated misdemeanor diversion was granted for six
months pursuant to section 1001.95 in both cases, with terms and conditions including that
defendant was “not to rent or lease or otherwise allow commercial cannabis activity” on his
property. On August 18, 2021, the court determined defendant successfully completed
diversion, and dismissed all the charges.
Defendant filed his section 851.91 petitions in each case on September 13, 2021,
requesting “an [o]rder sealing all records stemming from the arrest” in the cases. He indicated
sealing was required because a conviction had not resulted in the cases, the charges had been
dismissed, “and the charges (all misdemeanors) cannot be refiled.” In an attached declaration
from his counsel, defendant listed the “[d]ate of citation” for one case as December 3, 2019,
and for the other case as February 12, 2020; he indicated the “[l]ocation of arrest” was the City
of Los Angeles; and specified the “[a]rresting agency” was the Los Angeles Police Department.
The People filed oppositions to the petitions, arguing they should be denied because
“[d]efendant was not arrested so there is no arrest record to destroy [or] seal.”
1
All further statutory references are to the Penal Code unless otherwise specified.
2
On October 4, 2021, at a hearing on the petitions, defense counsel argued that, even
though defendant was never taken into custody, he was entitled under section 851.91 to have all
court records in the cases sealed. The prosecutor contended section 851.91 relief applies only
when a person was arrested, and because that did not occur here, the petitions should be denied.
The court noted that, in instances when a person is not taken into custody, in order to
inform a person that the person must go to court for arraignment on the charges, “[t]hey just
send out letters to say, come on in, or people are cited out.” The court indicated the
prosecutor’s argument was “[a] person who’s arrested and charged would have the right to this
relief. But a person who sent a letter [sic] doesn’t have the right to this relief.” On October 14,
2021, the court denied the petitions. The court found the prosecutor’s argument was
persuasive, and that the sealing “motion [was] technically improper under these
circumstances.”
DISCUSSION
To resolve the proper interpretation of the pertinent statutes, we exercise de novo
review. (People v. Lofchie (2014) 229 Cal.App.4th 240, 250.) “‘“Under settled canons of
statutory construction, in construing a statute we ascertain the Legislature’s intent in order to
effectuate the law’s purpose.” [Citation.]’” (People v. Lucero (2019) 41 Cal.App.5th 370,
394.) In determining legislative intent, “the court’s first step in statutory construction is to
‘look to the words themselves, giving them their ordinary meanings and construing them in
context.’ [Citation.]” (People v. Salas (2017) 9 Cal.App.5th 736, 742.)
Sealing Statutes
Section 851.91, subdivision (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.” Section 851.92, in turn, specifies the manner in which sealing
is to be accomplished, including the requirement that copies of the sealing order must be
provided “to the person whose arrest was sealed and to the prosecuting attorney” (§ 851.92,
subd. (b)(1)(A)), and “to the law enforcement agency that made the arrest, to any other law
enforcement agency that participated in the arrest, and to the law enforcement agency that
administers the master local summary criminal history information that contains the arrest
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record for the sealed arrest” (§ 851.92, subd. (b)(1)(B)). Under the statute, both “the arrest
record” and “[c]ourt records related to the sealed arrest” must be kept confidential from entities
outside the “criminal justice sector.” (§ 851.92, subd. (b)(2)-(4) (capitalization omitted); see
also § 851.92, subd. (d)(1) [defining “[a]rrest record” and “record pertaining to an arrest” to
“mean information about the arrest or detention” kept in “[t]he master, or a copy of the master,
local summary criminal history information”]; § 851.92, subd. (d)(2) [defining “court records”
to mean “records, files, and materials created, compiled, or maintained by or for the court in
relation to court proceedings, [including] . . . but . . . not limited to, indexes, registers of actions,
court minutes, court orders, court filings, court exhibits, court progress and status reports, court
history summaries, copies of state summary criminal history information and local summary
criminal history information, and any other criminal history information contained in any of
those materials”].)
To have a court enter a sealing order, a defendant must file a verified petition that
includes, in addition to the defendant’s name and birth date, “[t]he date of the arrest for which
sealing is sought”; “[t]he city and county where the arrest took place”; and “[t]he law
enforcement agency that made the arrest.” (§ 851.91, subd. (b)(1)(E)(i)-(iv).) In addition, the
petition must include, “Any other information identifying the arrest that is available from the
law enforcement agency that conducted the arrest or from the court in which the accusatory
pleading, if any, based on the arrest was filed, including, but not limited to, the case number for
the police investigative report documenting the arrest, and the court number under which the
arrest was reviewed by the prosecuting attorney or under which the prosecuting attorney filed
an accusatory pleading.” (§ 851.91, subd. (b)(1)(E)(v).) In moving for a sealing order, “[t]he
petitioner has the initial burden of proof to show that he or she is entitled to have his or her
arrest sealed as a matter of right,” and “[i]f the court finds that petitioner has satisfied his or her
burden of proof, then the burden of proof shall shift to the respondent prosecuting attorney.”
(§ 851.91, subd. (d)(2).)
The Statutes Are Inapplicable Where No Arrest Occurs
Section 851.91, subdivision (a), specifically states the only person who may petition a
court for a sealing order is one “who has suffered an arrest” where no conviction occurred.
4
The statute proceeds to indicate “an arrest did not result in a conviction” when any of several
dispositions resulted, listing, inter alia, when “[n]o conviction occurred, the charge has been
dismissed, and the charge may not be refiled.” (§ 851.91, subd. (a)(1)(B)(i); see also § 851.91,
subd. (a)(1)(B)(ii) [“an arrest did not result in a conviction” when “[n]o conviction occurred
and the arrestee has been acquitted of the charges”], (iii) [listing when “[a] conviction occurred,
but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the
charge may not be refiled”].) The person’s sealing petition must provide information necessary
to assist law enforcement to locate the person’s arrest records (§ 851.91, subd. (b)(1)(E)(i)-(v)),
further underscoring that only individuals who were arrested are entitled to relief. (See West
Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608 [courts must look to “the
entire substance of the statute . . . to determine the scope and purpose of the provision”].)
All the provisions specifying the manner in which sealing is to occur indicate the intent
of the statute was to require that only arrests and records pertaining to arrests must be sealed.
(See People v. Valencia (2017) 3 Cal.5th 347, 357-358 [“‘[t]he words of the statute must be
construed in context, keeping in mind the statutory purpose, and statutes or statutory sections
relating to the same subject must be harmonized, both internally and with each other, to the
extent possible’”].) Section 851.92, subdivision (b)(1)(B), provides instructions to the law
enforcement agency that made “the arrest,” “any other law enforcement agency that
participated in the arrest,” and to an agency that administers the “criminal history information
that contains the arrest record.” The statute further gives instructions to courts as to how
“[c]ourt records related to the sealed arrest” must be kept confidential. (§ 851.92, subd. (b)(4).)
“The essential elements of an arrest are: (1) taking a person into custody; (2) actual
restraint of the person or his submission to custody. [Citations.]” (People v. Hatcher (1969) 2
Cal.App.3d 71, 75; see also § 834.) Defendant on appeal concedes he was not taken into
custody in his cases, but argues the sealing statute was not meant to exclude persons who
“appeared in court pursuant to a letter ‘notice to appear’ [from a prosecutor] rather than [by] a
formal arrest,” concluding “[defendant], being a responsible citizen with no desire to force the
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police or prosecution to waste resources arresting him, showed up to court when the City
Attorney sent him a letter and asked him to do so.”2
Defendant argues the Legislature intended the courts to have the power to seal all
records of a person who is charged with an offense which is later dismissed, including law
enforcement investigative reports and court documents, even when the person is not arrested.
As there is no ambiguity in the statutes’ terms, there is no need to resort to extraneous indicia of
the Legislature’s intent. (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 419 [“‘“‘[i]f the
language is clear and unambiguous there is no need for construction, nor is it necessary to
resort to [extrinsic] indicia of the intent of the Legislature’”’”]; People v. Cornett (2012) 53
Cal.4th 1261, 1265 [“[t]he plain meaning controls if there is no ambiguity in the statutory
language”].) “Although courts may disregard literal interpretation of a statute . . . [citation],
they should do so rarely, and only in ‘extreme cases’—those in which, as a matter of law, the
Legislature did not intend the statute to have its literal effect. [Citation.]” (Gorham Co., Inc. v.
First Financial Ins. Co. (2006) 139 Cal.App.4th 1532, 1543-1544.)
The Legislature did not specify that persons who were not arrested are entitled to relief,
and inserting language into an unambiguous law “‘violate[s] the cardinal rule of statutory
construction that courts must not add provisions to statutes’ [Citation].” (People v. Guzman
(2005) 35 Cal.4th 577, 587.) Defendant was never arrested, and there are thus no arrest records
or court records related to an arrest to be sealed. The clear statutory terms used by the
Legislature indicate defendant’s section 851.91 petitions were properly denied.
Even if we look to the legislative history of the statute, there is nothing showing an
intent to provide relief for persons who were not arrested. The Legislature’s concern was that
persons who were arrested but never charged, or who were charged and later acquitted or had
their cases dismissed, continued to be unfairly disadvantaged by reason of the arrests.
2
A person who is cited by an officer, i.e., temporarily detained while a notice to appear is
completed, can be considered to have been “arrested” for some purposes. (See People v. Hubbard
(1970) 9 Cal.App.3d 827, 833.) But, as there is no indication defendant was given a citation, we do not
address whether a cited person is eligible for a section 851.91 sealing order.
6
The Legislature, when it was considering the bill that enacted section 851.91, was
informed that “[c]onsumer reporting agencies collect information and provide reports about
individuals for clients” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 393 (2017-2018
Reg. Sess.) (SB 393) as amended Apr. 17, 2017, p. 1), and “the Justice Department has
confirmed that many individuals’ criminal records include arrests that never lead to a
conviction, but are nevertheless included in overbroad background checks that then exclude
applicants from jobs or housing” (Id. at p. 2). The intent was to address the “serious
consequences of arrest records and shortcomings of existing law in addressing those
consequences.” (Assem. Com. on Judiciary, Analysis of SB 393 as amended Jun. 28, 2017,
p. 9.) The Legislature was aware that an arrest carries with it particularly negative connotations
more negative than those that flow from even interactions with law enforcement which result in
a temporary investigative detention. (See Loder v. Municipal Court for the San Diego Judicial
Dist. (1976) 17 Cal.3d 859, 868-877 [outlining the negative effects on an individual of an
arrest, and noting how the Legislature sought to minimize the collateral consequences of an
arrest when no charges are filed by enacting § 849.5 to provide that in such a situation, “any
record of arrest of the person shall include a record of release. Thereafter, the arrest shall not
be deemed an arrest, but a detention only”].)3 In short, the Legislature perceived an arrest, the
fact a person was taken into custody, carried a severe stigma with employers and landlords, and
took steps to make it difficult if not impossible for private entities to uncover an arrest by
sealing police agency and court records pertaining to the arrest.4
3
See also section 851.6, subdivision (b), providing that, if “a person is arrested and released and
an accusatory pleading is not filed charging him or her with an offense,” the law enforcement agency
that performed the arrest must issue a certificate “describing the action as a detention.” Emphasizing
the particularly damaging connotation associated with an arrest, the statute further requires that “[a]ny
reference to the action as an arrest” must be “deleted from the arrest records of the arresting agency and
of the [California] Department of Justice” and that “any record of the action shall refer to it as a
detention.” (§ 851.6, subd. (d).) We presume the Legislature is aware of existing law when it enacts a
statute. (Christians v. Chester (1990) 218 Cal.App.3d 273, 276.)
4
Defendant points to an analysis of SB 393 which informed the Legislature that under section
851.8 “a factually innocent person arrested for or charged with a crime may be able to have the records
sealed by obtaining a declaration of factual innocence” (Assem. Com. on Judiciary, Analysis of SB 393
as amended Jun. 28, 2017, p. 8, italics added), maintaining this shows an intent to allow persons to
move to seal whether arrested or merely charged with a crime. But, since the language that was
7
Defendant maintains that, if only persons who were arrested are eligible for relief under
section 851.91, absurd results would follow. He posits, “Suppose a defendant receives notice to
appear in court for a misdemeanor; the defendant ignores the notice and does not appear; an
arrest warrant issues; the defendant is subsequently arrested on the warrant; and the defendant’s
misdemeanor charges are subsequently dismissed. Under the City Attorney’s reading of
section 851.91 (and that of the trial court) this defendant, who disregarded a request to appear
in court, would be entitled to the benefits of section 851.91, but a defendant who complied with
the request to appear would not. This absurd result could not have been the Legislature’s
intent.” (Italics in original.) However, if, as defendant contends, the statute produces an
anomaly, e.g., the arrestee may have his complaint sealed while the person who voluntarily
appears in court is not entitled to such benefit, “that anomaly is properly addressed to the
Legislature, not this court.” (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 827.)
At this juncture, the Legislature has unequivocally limited relief to those who are arrested.
Equal Protection
Defendant argues that, if section 851.91 is not interpreted to require that relief be
provided to persons who are given letters to appear in court and are never arrested, the statute
would be unconstitutional because of its failure to provide equal protection under the law.
Defendant forfeited the argument by failing to raise it in the trial court. (People v. Rogers
(2006) 39 Cal.4th 826, 854.) Yet, even if not forfeited, the argument fails on its merits.
We review de novo the constitutionality of a statute. (In re Brian J. (2007) 150 Cal.App.4th 97,
124.)
Equal protection under the Fourteenth Amendment to the United States Constitution and
article I, section 7, subdivision (a), of the California Constitution is implicated when the
government treats two similarly situated groups disparately. (See In re Eric J. (1979) 25 Cal.3d
ultimately enacted did not state persons “arrested for or charged with a crime” were eligible for sealing,
the cursory note in the analysis does not bear any weight in discerning the Legislature’s intent, and the
same is true with other isolated references in bill analyses which described the statute applying in a
broader fashion than was codified.
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522, 530.) “The initial inquiry is not whether persons are similarly situated for all purposes, but
whether they are similarly situated for purposes of the challenged law. [Citation.]” (People v.
Mora (2013) 214 Cal.App.4th 1477, 1483.) Because the present purported statutory disparity
does not implicate a suspect class or fundamental right, “‘equal protection of the law is denied
only where there is no “rational relationship between the disparity of treatment and some
legitimate governmental purpose.”’ [Citation.]” (Johnson v. Department of Justice (2015) 60
Cal.4th 871, 881; see Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482 [“‘“[i]n areas of social
and economic policy, a statutory classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification. [Citations.] Where there are ‘plausible reasons’ for [the classification] ‘our
inquiry is at an end’”’” ].)
Persons who appear in court in response to a prosecutor letter and those who suffer an
arrest are not similarly situated for the simple fact that a person who is arrested is saddled with
an arrest record. A person who is not arrested and who comes to court based on a prosecutor
letter, and later has the case dismissed, leaves a paper trail that includes a law enforcement
investigative report and court records regarding the charges. However, the arrested person who
later has the case dismissed, in addition to these items, also leaves a record of the person having
been arrested, including criminal history information containing their physical description, date
of arrest, booking number and photograph (§§ 851.92, subd. (d)(1), 11105, subd. (a)(2), 13300,
subd. (a)).
In a similar vein, the Legislature could have rationally concluded the persons who need
relief most are ones with the stigma of an arrest and records relating to it, and thus provided
that only persons who were arrested and had their cases dismissed, as opposed to everyone who
had charges filed against them, were entitled to sealing. (See Fort Bragg Unified School Dist.
v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 909-910 [“‘Crafting
statutes to conform with policy considerations is a job for the Legislature, not the courts; our
role is to interpret statutes, not to write them’”].) The Legislature could have also reasonably
determined that sealing only the records of persons who were arrested, those who are most
9
likely to be disadvantaged by the unearthing of their records, struck a balance between an
individual’s privacy interests and the public’s First Amendment right to access public records.
(See People v. Jackson (2005) 128 Cal.App.4th 1009, 1021 [noting “the First Amendment
recognizes ‘“a general right to inspect and copy public records and documents, including
judicial documents and records”’”].)
Conclusion
Defendant would have us rewrite section 851.91, based on his assertion that “the
Legislature intended that everyone actually charged with a crime — whether or not such
charges were preceded by a formal arrest — be eligible to have their records sealed.” Neither
the statutory language used by the Legislature nor legislative history reveals such an intent, and
it does not violate the constitutional guarantee to equal protection of law to deny defendant
relief. Defendant’s arguments are best directed to the Legislature in amending the law to
include within the sealing statutes persons who were not arrested. (See In re Jesse S. (2017) 12
Cal.App.5th 611, 614 [“The problem requires a legislative fix if there is to be one”].)5
5
We express no opinion to what extent, if any, a criminal defendant in a case where charges are
dismissed following completion of misdemeanor diversion may move to seal records under the
California Rules of Court. (See Cal. Rules of Court, rule 2.550(c) [providing that “[u]nless
confidentiality is required by law, court records are presumed to be open”], (d) [allowing a court to seal
records when it expressly finds facts establishing “(1) There exists an overriding interest that
overcomes the right of public access to the record; [⁋] (2) The overriding interest supports sealing the
record; [⁋] (3) A substantial probability exists that the overriding interest will be prejudiced if the
record is not sealed; [⁋] (4) The proposed sealing is narrowly tailored; and [⁋] (5) No less restrictive
means exist to achieve the overriding interest”].)
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DISPOSITION
The orders denying defendant’s section 851.91 petitions are affirmed.
______________________
Ricciardulli, J
We concur:
______________________ ______________________
Kumar, Acting P. J. Richardson, J.
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