Loder v. Municipal Court

• Decision Date: 02 September 1976
• Citation: 132 Cal.Rptr. 464,553 P.2d 624,17 Cal.3d 859
• Court: California Supreme Court
• Parties: , 553 P.2d 624 Joseph A. LODER, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the SAN DIEGO JUDICIAL DISTRICT OF SAN DIEGO COUNTY et al., Defendants and Respondents; The PEOPLE, Real Party in Interest and Respondent. L.A. 30406.

Page 464

132 Cal.Rptr. 464

17 Cal.3d 859, 553 P.2d 624

Joseph A. LODER, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the SAN DIEGO JUDICIAL DISTRICT OF SAN DIEGO COUNTY et al., Defendants and Respondents;

The PEOPLE, Real Party in Interest and Respondent.

L.A. 30406.

Supreme Court of California.

Sept. 2, 1976.

Jean Leonard Harris, San Diego, for plaintiff and appellant.

Sheldon Portman, Public Defender, Santa Clara, Frank D. Berry, Jr., Deputy Public Defender, San Jose, Joseph Remcho, Los Angeles, Deborah Hinkel, Ellen Lake, San Francisco, Susan Sawyer, Oakland, Amital Schwartz, San Francisco, Fred Okrand, Los Angeles, Anthony G. Amsterdam, Stanford, Daniel M. Luevano, Rosalyn M. Chapman, Philip L. Goar, Richard A. Paez, Los Angeles, Kenneth Hecht, San Francisco, Judith Kurtz, Les A. Hausrath, Berkeley, Stefan Rosenzweig and Henry Hewitt, Oakland, as amici curiae on behalf of plaintiff and appellant.

John W. Witt, City Atty., Stuart H. Swett, Chief Deputy City Atty., Paul E. Robinson and Peter L. Dean, Deputy City Attys., for defendants and respondents and for real party in interest and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Jeffrey A. Joseph, Deputy Atty. Gen., as amici curiae on behalf of defendants and respondents and real party in interest and respondent.

MOSK, Justice.

Plaintiff appeals from a judgment denying a writ of mandate to compel erasure or return of the record of an arrest which did not result in conviction. As will appear, we conclude that he is not entitled to the relief sought and hence that the judgment should be affirmed.

The principal factual allegations of plaintiff's petition for writ of mandate are as follows: on July 22, 1972, plaintiff attacked San Diego Police Officer Gosnell as the latter was beating plaintiff's wife with a nightstick. Plaintiff was arrested for battery, obstructing a police officer, and disturbing the peace, and a criminal complaint was filed charging him with these offenses.

Officer Gosnell was thereafter reported for the incident and temporarily suspended from duty. The city attorney decided not to press the charges against plaintiff, and on November 22, 1972, the criminal complaint was dismissed by the municipal court for lack of prosecution. Concurrently therewith plaintiff executed a covenant not to sue, agreeing in consideration of the dismissal not to pursue any claim for damages against Officer Gosnell.

At the time of the dismissal plaintiff moved for an order 'by way of mandamus' directing all police agencies to erase all records of his arrest. The municipal court denied the motion, finding no statutory authority for such an order. Plaintiff's appeal to the appellate department of the superior court was dismissed on the ground the ruling was nonappealable.

Plaintiff then wrote directly to the chief of police and the records custodian of the San Diego Police Department, requesting them to erase his arrest record and refrain from sending it to federal law enforcement agencies. When no action was taken in response, plaintiff filed the present action for writ of mandate in the superior court. He named as respondents the presiding judge of the municipal court and the San Diego Chief of Police and records custodian, and prayed that they be compelled (1) to erase all record of the arrest of July 22, 1972, and (2) to notify all agencies which received a copy of that record that it has been erased, and request them to do likewise. ¹

After a hearing the court found that respondents will not disseminate the record of plaintiff's arrest to the public in general, and concluded in reliance on Sterling v. City of Oakland (1962) 208 Cal.App.2d 1, 24 Cal.Rptr. 696, that respondents are under no duty to erase or return the record to plaintiff. The court therefore denied the writ, and plaintiff brought this appeal.

A writ of mandate will lie only 'to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; . . .' (Code Civ.Proc., § 1085.) More particularly, 'Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent (citations); and (2) a clear, present and beneficial right in the petitioner to the performance of that duty (citation).' (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491, 96 Cal.Rptr. 553, 559, 487 P.2d 1193, 1199.) Inasmuch as plaintiff fails to satisfy the first of these requirements, we need not reach the second.

Plaintiff points to no statute or ordinance--and we have found none--which imposes on respondent presiding judge of the municipal court or on either of respondent police officials 'a duty resulting from (his) office' to comply with plaintiff's demand for erasure or return of the record of his arrest. On the contrary, such an act appears to be forbidden by Government Code section 6200, which provides in pertinent part that 'Every officer having the custody of any record . . . or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of . . . wilfully destroying, mutilating, defacing, altering or falsifying, removing or secreting the whole or any part of such record, . . . paper, or proceeding, or who permits any other person to do so,' is punishable by a prison term of up to 14 years. An arrest record is clearly a document which may properly be kept by a public officer in the discharge of his duties, and hence is within the scope of the statute. (See People v. Pearson (1952) 111 Cal.App.2d 9, 31, 244 P.2d 35.) And inasmuch as no showing of specific intent is required by the statute, an officer who knowingly removes or destroys such a document is punishable even though he acts without a criminal purpose. (Id. at p. 18, 244 P.2d 35; accord, People v. O'Brien (1892) 96 Cal. 171, 175--179, 31 P. 45; People v. Tomalty (1910) 14 Cal.App. 224, 229--230, 111 P. 513.)

Lacking legislative authority, plaintiff turns to two broad constitutional provisions. He asserts that official retention and dissemination of his arrest record violates his right of privacy (Cal.Const., art. I, § 1) and deprives him of due process of law (Cal.Const., art. I, § 7, subd. (a); U.S.Const., 5th & 14th Amends.). He notes that each of the respondents took an oath to uphold the federal and state Constitutions, and he concludes that each therefore has a clear and present duty resulting from his office to prevent the claimed violations. As will appear, the constitutional premises of the argument are faulty.

The right of privacy added to the California Constitution by a 1972 amendment of article I, section 1, is not absolute. In White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 106, 533 P.2d 222, 234, we observed that 'the amendment does not purport to prohibit all incursion into individual privacy but rather that any such intervention must be justified by a compelling interest.' For example, in County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 672, 114 Cal.Rptr. 345, 351, 522 P.2d 1345, 1351, we held that the right of privacy does not prevail over 'the right of the public to an honest and impartial government,' as implemented by legislation requiring a variety of public officials and candidates to disclose their financial interests. (Gov.Code, § 3600 et seq.)

In the case at bar respondents assert a similar compelling interest in limited retention and dissemination of arrest records. The interest may be characterized generally as the promotion of more efficient law enforcement and criminal justice; more specifically, the state's purpose is to protect the public from recidivist offenders.

This interest is manifested at a number of stages of the criminal process. First, at the time of arrest the suspect's right of privacy is obviously outweighed by the necessity of identifying him correctly, and does not give him the right to refuse to disclose his name and address to the arresting officer. Not only may such information be taken down, it may be immediately put to use: the officer may transmit the data to his headquarters in order to determine whether the arrestee is wanted on any other charge or is a fugitive, or whether he presents a threat to the officer's safety. If the arrestee is thereafter transported to the police station and booked, the identification process may lawfully extend to taking his fingerprints and photograph, and recording his vital statistics. (See Pen.Code, § 7, subd. 21.)

In addition, the suspect's right of privacy is not violated by prompt and accurate public reporting of the facts and circumstances of his arrest: 'It is also generally in the social interest to identify adults currently charged with the commission of a crime. While such an identification may not presume guilt, it may legitimately put others on notice that the named individual is suspected of having committed a crime. Naming the suspect may also persuade eyewitnesses and character witnesses to testify. For these reasons, while the suspect or offender obviously does not consent to public exposure, his right to privacy must give way to the overriding social interest.' (Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 536, 93 Cal.Rptr. 866, 871, 483 P.2d 34, 39, see also Kapellas v. Kofman (1969) 1 Cal.3d 20, 38, 81 Cal.Rptr. 360, 459 P.2d 912.)

Next, the information derived from the arrest may be used by the police in several ways for the important purpose of investigating and solving similar crimes in the future. We have held, for example, that a photograph taken pursuant to even an illegal arrest may be included among those shown to a witness who is asked to identify the perpetrator of a subsequent crime. (People v. McInnis (1971) 6 Cal.3d 821, 825--826, 100 Cal.Rptr. 618, 494 P.2d 690.) This is a...