Metropolitan News-Enterprise


Thursday, June 25, 2020


Page 1


Court of Appeal:

Man Who Was Convicted, Later Had Accusation Dismissed, Not Entitled to Arrest Record Sealing

Mihara Says Penal Code Section Allowing Person Who Successfully Completes Probation To Withdraw Guilty Plea, Have Charge Disappear, Does Not Void Conviction 


By a MetNews Staff Writer


The Sixth District Court of Appeal declared yesterday that legislation enacted in 2017 which authorizes a superior court to seal the arrest records of someone who was taken into custody but not convicted does not apply to a man who was, in fact, convicted, but, having successfully completed probation, was allowed to change his plea to not guilty, with the charge being dismissed.

Justice Nathan D. Mihara wrote the opinion which affirms the denial of a sealing motion by Elia Victor Betbadal, who pled guilty on Nov. 16, 1995, to one count of count of oral copulation with a minor. The charge was later dismissed pursuant to Penal Code §1203.4.

Betbadal sought the sealing order under Penal Code §851.91, a provision contained in SB 393, authored by Sen. Ricardo Lara, D-Bell Gardens, and Sen. Holly Mitchell, D-Los Angeles. The legislation became effective Jan. 1, 2018.

Sec. 851.91 applies to a “person who suffered an arrest that did not result in a conviction.”

Pinpoints Issue

Mihara said:

“Thus, the question is whether relief under section 1203.4 qualifies as a conviction that ‘has been vacated or reversed on appeal.’

He answered that question in the negative.

As an initial matter, the justice found invalid the basis upon which Santa Clara Superior Court Judge Joshua Weinstein on Dec. 11, 2018, denied Betbadals’s motion. Weinstein interpreted the statute to require, for relief to lie, that a conviction have been “vacated on appeal” or “reversed on appeal.”

Mihara said that, under common rules of statutory construction, it suffices if a conviction was vacated in the trial court.

Conviction Not Vacated

 “[W]e must now determine whether appellant’s conviction was in fact ‘vacated’ under section 1203.4,” he wrote, concluding that “a change of plea and dismissal of the accusatory pleading under section 1203.4 is not the equivalent of vacation of a conviction….”

The jurist said that relief under §1203.4 “frees a former probationer from further ‘penalties and disabilities’ resulting from the conviction” but does not “act to nullify, annul, cancel, or make void a conviction.”

He continued:

“The provisions of section 1203.4 underline this point. Subdivision (a)(1) of section 1203.4 states that a conviction may be pleaded and proved in any subsequent prosecution of the petitioner for any other offense with the same effect as if it had not been dismissed. Subdivision (a)(2) precludes the petitioner from owning, possessing, or having in his or her control a firearm. In contrast to a true vacation of a conviction, section 1203.4 makes clear that a dismissed conviction still exists for purposes of imposing collateral consequences for that conviction. In short, the plain language and effect of the relief provided by section 1203.4 is not the equivalent of vacation of a conviction. Therefore, although the superior court misconstrued the scope of section 851.91’s eligibility requirements, appellant nonetheless was not entitled to relief under the statute.”

Accorded Anonymity

Betbadal was identified by his full name in Santa Clara Superior Court proceedings and brought his appeal in his true name, but later requested anonymity. Obliging, Mihara’s opinion refers to him as “E.B.,” with a footnote explaining:

“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 objection 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....’….In this opinion, we refer to appellant 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. E.B, 2020 S.O.S. 3030.

Other Opinions

There is an increasing usage in the courts of appeal of only the first letter of an adult party’s surname or just two initials, although the parties had litigated below in their full names, and often without a request that the Court of Appeal withhold their identities.

In an unpublished opinion yesterday, Div. Six of this district’s Court of Appeal referred to the respondent in the case as “Emily H.” In Ventura Superior Court proceedings and in papers filed in the Court of Appeal, she was identified as Emmalyn Hoffard.

In that decision, authored by Presiding Justice Arthur Gilbert, a domestic violence restraining order granted to Hoffard against her former husband, Joseph Book, was affirmed. Gilbert wrote:

“Here the trial court found Emmalyn H. was subjected to domestic violence at the hands of Book prior to the parties’ divorce in 2009.  That alone is a sufficient ground to affirm the order.”

The case is Emmalyn H. v. Book, B299095.

Same Parties

On June 9, the Fifth District Court of Appeal referred to Hoffard in an unpublished opinion by her true name. It affirmed decisions by a Tulare Superior Court judge except as to his modification of a 2014 custody order giving sole custody of a child to Hoffard.

The judge now gave Book joint custody. That, Justice Kathleen Meehan said, was an abuse of discretion.

That case is Hoffard v. Book, F079122.

Div. Eight of this district’s Court of Appeal, in an opinion filed May 12 and certified for publication on June 3, shielded the identity of the respondent, Nichole Guest, who had obtained a domestic violence restraining order against Warren Braithwaite. Although she had litigated in her true name, Justice Maria E. Stratton denominated her “Nichole G.”

The opinion was captioned Nicole G. v. Braithwaite, B294228.

San Diego Panel

An opinion was filed by Div. One of the Fourth District on June 9, and not certified for publication, in In re the Marriage of D.P. and A.P., D075999. There was no explanation in it by Acting Presiding Justice Terry B. O’Rourke as to why the parties were allowed to litigate pseudonymously in a dispute over whether a house was community property.

The parties were identified in the San Diego Superior Court as Donna L. Perez and Abel D. Perez.

Also from the Fourth District’s Div. One is Marriage of C.S. and G.S., D073815, an unpublished opinion filed May 20. O’Rourke was the author.

The dispute was over adult child support. In the San Diego Superior Court, the parties were named: Carla Ann Hill and George Stivers.


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