Metropolitan News-Enterprise


Wednesday, September 7, 2022


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Los Angeles Superior Court Appellate Division:

Court Records Won’t Be Sealed Where Defendant Wasn’t Subjected to Arrest


By a MetNews Staff Writer


The Appellate Division of the Los Angeles Superior Court has held, in an opinion publicly released yesterday, that a man who successfully completed diversion is not entitled to the sealing of court records relating to the prosecution of him on two misdemeanor charges because he came to court for an arraignment in response to letter demanding his appearance and was not arrested.

Defendant Nick Hadim sought relief pursuant to Penal Code §851.91. But that section begins:

“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….”

Los Angeles Superior Court Commissioner Elizabeth Harris noted that in some instances, prosecutors “just send out letters to say, come on in….”

She agreed with the position of the Office of Los Angeles City Attorney that where there’s no arrest, the statute does not authorize a sealing.

The Appellate Division affirmed in an opinion by Judge Alex Ricciardulli’s that was filed Aug, 8. Div. Five of this district’s Court of Appeal decided on Friday not to transfer the matter to itself.

Wording of Statute

Ricciardulli pointed to repeated references in the statute to an “arrest,” noting:

“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.”

He added:

“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.”

Equal Protection Challenge

Rejecting an equal protection challenge, Ricciardulli said:

“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….

“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….The Legislature could have also reasonably  determined that sealing only the records of persons who were arrested, those who are most  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.”

Won’t Rewrite Statute

The judge commented:

“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.”

Hadim had been charged with running an unlicensed commercial cannabis business and an illegal use of land by using it for his cannabis sales.

The case is People v. Hadim, BR055272.


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