Friday, April 24, 2026
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There Can Be No Sealing of Arrest Records Where Prosecution Is Still Possible—C.A.
Panel Says Unwillingness of Alleged Victim to Press Matter Is Not Enough for Statute to Be Invoked
By a MetNews Staff Writer
A woman who was arrested for assault with a deadly weapon, arising from an encounter with a former boyfriend against whom she had earlier sought a protective order, has lost in her bid to have the Fifth District Court of Appeal reverse an order denying the sealing of police records, with the justices reasoning that although the alleged victim has said he does not want to press the matter, he might change his mind.
At issue is an application of Penal Code §851.91 which authorizes the sealing of arrest records where there has been no conviction either because “the charge has been dismissed, and the charge may not be refiled” or because there was an acquittal. Where there was a conviction, relief is authorized where it was wiped out, with the appeals process exhausted and no prospect of a refiling.
None of those conditions applies, a panel—comprised of Acting Presiding Justice Jennifer R.S. Detjen and Justices Herbert I. Levy and Donald R. Franson Jr.—said in an unpublished per curiam opinion filed Thursday. They noted that no conviction occurred, there was no acquittal. and, of key significance, there could possibly be a future filing because the statute of limitation on assault with a deadly weapon, as well as another possible offense, had not expired.
Appellant’s Argument
The appellant, Maria Isabel Venasquez Serrano, 36, argued in her opening brief on appeal, drafted by attorney Tracy Wood of Butte County’s City of Oroville:
“It is undisputed that the Fresno Comity District Attorney declined to file charges in April 2025. The written declination is in the record…and the District Attorney acknowledged the declination in open court….
“Despite this, the trial court denied relief because the statute of limitations had not run and because the District Attorney had not promised never to prosecute….Neither condition appears hi the statute. Courts may not rewrite statutes to add requirements the Legislature did not include.”
Wood added:
“Nothing in Penal Code section 851.91 requires a permanent or irrevocable declination.”
Deputy Attorneys General Clifford E. Zall countered, in the respondent’s brief, that the ‘plain language’ of §851.91bars sealing where the arrestee “may still be charged with any of the offenses upon which the arrest was based.”
Appeals Court Opinion
The justices agreed with Zall, saying that because prosecutions are not time-barred, “[t]he People may…still file the charges.”
They noted that “[t]wo of the three options under” the statute “require that all of the charges ‘may not be refiled’ ” and the ‘third option requires an acquittal of the charges.”
Serrano’s “sole contention fails per the plain meaning of the statute,” they declared.
Attorney’s Response
Wood commented:
“This decision reflects an overly rigid reading of Penal Code section 851.91 that undermines the statute’s core purpose: to provide timely relief to individuals who were arrested but never charged.
“In this case, the prosecution affirmatively declined to file charges. Yet the court held that relief must be denied simply because charges could theoretically be filed at some point in the future. That interpretation effectively means that individuals must live with the stigma of an arrest record for years—sometimes up to the full statute of limitations period—even when the government has already chosen not to prosecute.
“That result is not only inconsistent with the remedial purpose of the statute, it produces real-world harm. Arrest records—even without charges—can interfere with employment, housing, and professional licensing. The statute was enacted to mitigate those consequences, not to delay relief until it is no longer meaningful.”
The lawyer, who is representing Serrano on a pro bono basis, continued:
“Importantly, allowing records to be sealed does not prevent future prosecution. If circumstances change and charges are later filed, the law provides mechanisms for the record to be accessed and used. The court’s concern about theoretical future charges should not outweigh the immediate and ongoing harm to individuals who have not been charged with any crime.
“In practical terms, this ruling creates a gap in the law: people who were never charged are denied relief precisely when they need it most—during the period when their arrest record is actively harming them.
“This is an issue that may ultimately require clarification by the Legislature to ensure that the statute functions as intended.”
The case is People v. M.S., F090S60.
Other Litigation
On Jan 14, 2025, Serrano filed a “petition for order of protection” in the Circuit Court of Jefferson County, Ark., alleging that Oscar Bilbao Siervo III had hit her knee with a phone and repeatedly abused her. The matter was dismissed on Feb. 24 of that year after neither party appeared at the hearing on the petition.
Serrano, 35, has sued Siervo in Fresno Superior Court for $35,000, in part based on her April 11, 2025 arrest, and he has cross-complained. The litigation is pending.
Wood said her client is attempting to obtain a domestic violence restraining order against her ex-boyfriend and that the parties are in disagreement as to whether jurisdiction lies in Alameda County where she now resides or in Fresno County where she was arrested.
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