Metropolitan News-Enterprise


Thursday, September 17, 2020


Page 1


Court of Appeal:

Man Who Completed Drug Program Not Entitled to Sealing of Records


By a MetNews Staff Writer


The Fifth District Court of Appeal held yesterday that a man who pled no contest to felony possession of a controlled substance, was placed on probation, and completed a drug treatment program as a condition of probation, is not entitled to a sealing of his arrest record.

Justice Rosendo Peña Jr. wrote the opinion, which affirms an order by Kern Superior Court Judge Michael G. Bush, who rejected the contention by the defendant, Dustin Jerald Cockren, that he is entitled to a sealing under Penal Code §851.91.

That section, enacted by the Legislature in 2017, effective Jan. 1, 2018, provides:

“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.”

Peña declared that “in light of defendant’s no contest plea, we cannot conclude ‘no conviction occurred.’ ”

Wording of Statutes

Arguing to the contrary, Cockren pointed out that the same bill that created §851.92 also amended §1000.4 and §1001.9. Sec. 1000.4(a) now says:

“Upon successful completion of a pretrial diversion program, the arrest upon which the defendant was diverted shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92.”

Sec. 1001.9(a) provides:

“Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92.”

These provisions, Cockren contended, are consistent with §1210.1—enacted by voters in approving Proposition 36 in 2000—which says that a defendant convicted of a nonviolent drug offense must be placed on probation, with no term of incarceration, and if a drug treatment program is completed, “both the arrest and the conviction shall be deemed never to have occurred.”

Peña’s Opinion

The problem with that reasoning, Peña said, is that a person who has enjoyed the benefit of §1210.1 is not freed for all purposes from the onus of having been arrested and convicted.

The section specifies:

“Regardless of his or her successful completion of drug treatment, the arrest and conviction on which the probation was based may be recorded by the Department of Justice and disclosed in response to any peace officer application request or any law enforcement inquiry.  Dismissal of an information, complaint, or indictment under this section does not relieve a defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer…, for licensure by any state or local agency, for contracting with the California State Lottery, or for purposes of serving on a jury.”

Peña wrote:

“While defendant’s arrest and conviction are deemed never to have occurred for most purposes, we cannot conclude this is the equivalent of a defendant who was arrested but never convicted. Rather, because defendant’s arrest and conviction still exist for some purposes, he is in a markedly different position from someone who was never convicted at all.”

Accordingly, the jurist said, the appellant does not qualify for relief under §851.91.

Although Cockren was arrested and tried under his true name, Peña opted to refer to him as “D.C.,” explaining in a footnote:

“Rule 8.90(b) of the California Rules of Court directs us to ‘consider referring to’ certain individuals ‘by first name and last initial, or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only,’ in order to protect those individuals’ privacy. The list of people to whom this rule applies includes ‘[p]ersons in other circumstances in which personal privacy interests support not using the person’s name….’ (Cal. Rules of Court, rule 8.90(b)(10).) In this opinion, we refer to defendant by his first and last initials, given that the sole purpose of this appeal is to attempt to vindicate a statutory privacy right.”

The case is People v. D.C., F078629.


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