People v. Glimps

• Decision Date: 25 April 1979
• Docket Number: Cr. 34246
• Citation: 92 Cal.App.3d 315,155 Cal.Rptr. 230
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Blanche GLIMPS, Defendant and Respondent. PEOPLE of the State of California, Plaintiff and Appellant, v. Earl BALLINGER, Defendant and Respondent.

Page 230

155 Cal.Rptr. 230

92 Cal.App.3d 315

PEOPLE of the State of California, Plaintiff and Appellant, v. Blanche GLIMPS, Defendant and Respondent.

PEOPLE of the State of California, Plaintiff and Appellant, v. Earl BALLINGER, Defendant and Respondent.

Cr. 34246.

Court of Appeal, Second District, Division 3, California.

April 25, 1979.

Hearing Denied July 19, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Ronald N. Ito, Deputy Attys. Gen., for plaintiff and appellant.

No appearance by defendant and respondent Glimps.

Erroll J. Gordon, Los Angeles, for defendant and respondent Ballinger.

POTTER, Associate Justice.

The People's appeals in these two Municipal Court matters have been transferred to this court from the Appellate Department of the Superior Court for the County of Los Angeles pursuant to rule 62, California Rules of Court. In each case, the Municipal Court made an order denying the People's motion to vacate a prior order sealing the records of a misdemeanor prosecution under the authority of Penal Code section 851.8 which, as enacted in 1975, provides:

"Whenever a person is acquitted of a charge and it appears to the judge presiding at the trial wherein such acquittal occurred that the defendant was factually innocent of the charge, the judge may order that the records in the case be sealed, including any record of arrest or detention, upon the written or oral motion of any party in the case or the court, and with notice to all parties to the case. If such an order is made, the court shall give to the defendant a copy of such order and inform the defendant that he may thereafter state that he was not arrested for such charge and that he was found innocent of such charge by the court."

The charges against both defendants had been dismissed pursuant to the provisions of Penal Code section 1385. In Ballinger, the order of dismissal was made November 13, 1970. In purported compliance with section 1385 of the Penal Code which then, as now, required that "(t)he reasons of the dismissal must be set forth in an order entered upon the minutes," a stamped entry was imprinted with blanks filled in and deletions as follows:

¹

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The proceedings at which the dismissal occurred were presided over by Meyer Newman, a Judge Pro Tem. pursuant to oral stipulation.

In Glimps, the dismissal was entered January 8, 1975, in proceedings in which Richard C. Hubbell, Commissioner, presided. As in the case of Ballinger, in purported compliance with section 1385 of the Penal Code, a stamped minute entry was made with blanks filled in as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The motion for an order sealing the record in Ballinger was originally filed on May 19, 1977. It was heard on May 20, 1977, in Division 40 of the Municipal Court of the Los Angeles Judicial District, Elwood Lui presiding. The minute order at that time was: "Petition denied 1385 P.C. motion not an acquittal."

The motion was renewed on August 10, 1977, and reheard August 18, 1977, in Division 50, Loren Miller presiding. The minute order on that occasion was "Motion to seal records under Sec. 851.8 P.C. granted."

In Glimps, the motion to seal the record was filed March 16, 1977. When the matter originally came on for hearing on March 21, 1977, in Division 82, Judge Clarence Stromwell trailed the matter to April 20, 1977, in order to permit counsel for the moving party to respond to a memorandum pointing out that the record showed neither an acquittal nor any indication that "the defendant was found to be '. . . factually innocent of the charge. . . .' " Defendant's counsel thereafter filed with the court a letter arguing the legal issues but conceding that "(a)s a result of the dismissal of this action . . . there could be no factual determination of innocence." The letter did, however, suggest that defendant might be innocent by stating that a civil action by defendant against the complainant was settled "in an amount substantially over what could be termed 'nuisance value' " and by characterizing defendant's conduct as "eating a cookie in a supermarket." But no competent evidence bearing on the issue of guilt was submitted. Despite this fact and without any further hearing, on April 14, 1977, the court "in chambers" made its order as follows: "Defendant is adjudged factually innocent. Defendant's request for 'sealing' under Penal Code section 851.8 is granted."

The People's motions to vacate the orders sealing the records were initiated by notice of motions filed respectively December 1, 1977, in Ballinger, and November 30, 1977, in Glimps. Both motions were based upon the ground that the defendant was "not eligible for the record sealing procedure provided for by Penal Code section 851.8."

In the case of Ballinger, the motion was served by mail upon Ballinger and upon his counsel, Errol J. Gordon. In the Glimps matter, purported service of the notice of motion was made by service upon the clerk of Division 40, in purported compliance with Code of Civil Procedure section 1011.

The motions in both matters were heard at the same time in Division 55 of the Los Angeles Municipal Court. Defendant Ballinger was represented by Errol J. Gordon. No appearance was made in behalf of defendant Glimps. The matter was argued by counsel for defendant Ballinger and by counsel for the People, and the court examined the docket in both matters. The court indicated its view that it had jurisdiction to grant the motion despite the fact that the time for appeal from the orders sealing the records had expired, because if unauthorized by Penal Code section 851.8, the sealing orders were in "excess of jurisdiction." The court concluded, however, that in the absence of "any pretrial motion on behalf of the defense," it was necessary to "indulge in the presumption that the Judge who heard this motion followed the law as the Code requires us to assume and, therefore, that he granted this motion on the basis of an acquittal rather than on the basis of something else . . ." and "because he found that the defendant was factually innocent . . . ." In any event, the court concluded that "a distinction between defendants found factually innocent after trial by court or jury, and on the other hand defendants who receive the benefit of a dismissal by reason of insufficiency of evidence, to (even) go to trial, would be a distinction that would not be meritorious in terms of equal protection arguments, based upon classifications." On this basis, the motion in Ballinger was denied. The motion in Glimps was also denied, though no appearance was made in her behalf since the court thought it appropriate to "give the defendant Glimps the benefit of the same thoughts that have been presented to the Court by counsel, and the benefit of the same conclusion reached by the Court, notwithstanding the defendant's nonappearance."

The People timely served ² and filed their notice of appeal in each case. Thereafter, pursuant to rule 184 of the California Rules of Court, the People filed their proposed Statement on Appeal, setting forth contentions as follows: (1) "Penal Code section 851.8, which provides for record sealing in cases where there is an acquittal and it appears to the judge presiding at trial that the defendant was factually innocent, does not authorize sealing of records in cases where the charge is dismissed"; (2) "such limitation on record sealing does not violate equal protection of the law," and (3) "Penal Code section 851.8 does not apply retroactively to cases disposed of prior to the effective date of the statute, January 1, 1976."

Respondent Ballinger has controverted all of the People's contentions. Respondent Glimps has not appeared in relation to either the motion or the appeal, so no contentions have been asserted in her behalf.

Discussion

Summary

The plain language and the legislative history of Penal Code section 851.8 make it clear that it does not empower the court to seal records in matters which have been simply dismissed pursuant to section 1385 of the Penal Code. So construed, section 851.8 does not deny equal protection. Consequently, it is unnecessary to decide whether section 851.8 applies retroactively to dispositions made prior to its effective date.

A sealing order made without legislative authority is in excess of the court's jurisdiction. When this fact appears from the record, it is void and must be set aside on motion at any time after its entry by the court which made the order. Therefore, the order denying the motion in Ballinger must be reversed. The same result must be reached in Glimps since, though a motion with notice is appropriate in the case of a void judgment, notice to the adverse party is not essential; the court has full power to vacate a void order without any application on the part of anyone.

Penal Code Section 851.8 Does Not Authorize the Sealing of Records Upon Dismissal Pursuant to Penal Code Section 1385

The language of section 851.8 is unambiguous. Two specific requirements are imposed: (1) there must have been an acquittal, and (2) it must appear to the judge "presiding at the trial wherein such acquittal occurred that the defendant was factually innocent of the charge." It is clear that acquittal is one condition of such relief but that not all acquittals justify sealing. Thus, acquittals for technical reasons ³ usually will not justify sealing. Even an acquittal on the merits, which "is merely an adjudication that the proof at the prior proceeding was not sufficient to overcome all reasonable doubt of the guilt of the accused" (People v. Griffin (1963) 60 Cal.2d 182, 191, 32 Cal.Rptr. 24, 29, 383 P.2d 432, 437) does not suffice. Some judge, who by reason of having presided at a trial on the merits is in a position to do so,...