People v. Ryser

• Citation: 40 Cal.App.3d 1,114 Cal.Rptr. 668
• Decision Date: 24 June 1974
• Docket Number: Cr. 7098
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kent Dana RYSER, Defendant and Appellant.

Page 668

114 Cal.Rptr. 668

40 Cal.App.3d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kent Dana RYSER, Defendant and Appellant.

Cr. 7098.

Court of Appeal, Third District, California.

June 24, 1974.

Evelle J. Younger, Atty. Gen. by Arnold Overoye, Deputy Atty. Gen., Sacramento, and Daniel J. Higgins, Dist. Atty., Auburn, for plaintiff-respondent.

Robert Trombley, Public Defender by Theodore Johanson, Deputy Public Defender, Auburn, for defendant-appellant.

GOOD, ^* Associate Justice.

At the age of 18, on July 1, 1971, defendant, a minor under California laws then in force, was apprehended at Lake Tahoe. He was in his car with another youth and two girls. He was in possession of a plastic baggie containing six grams of marijuana. He was charged with a misdemeanor under the option granted to district attorneys in Penal Code section 17, subdivision (b)(4), to file misdemeanor charges in a justice or municipal court when an offense is punishable either by a county jail (misdemeanor) or state prison (felony) sentence. Section 11530 of the Health and Safety Code provided such alternate sentences. He entered a plea of guilty in the Justice Court of Tahoe Judicial District and was granted probation for one year with a 30-day jail sentence suspended. After successfully serving the probationary period, he petitioned the court to terminate probation pursuant to Penal Code section 1203.3 and to set aside the conviction and dismiss the case as provided in section 1203.4 of said code. These petitions were granted.

He also petitioned to seal the records of the offense under section 1203.45 of said code. At that time, said section provided that any person who was under the age of 21 years when he committed a misdemeanor and had fulfilled the conditions of probation and was eligible for or had been granted a dismissal pursuant to section 1203.4 could secure an order sealing the record of conviction and other official records concerning said offense. It provided that '(t)hereafter such conviction, arrest, or other proceeding (was) deemed not to have occurred' and a defendant could give a negative answer to any question concerning their occurrence. Subdivision (c) thereof provided: 'This section shall not apply to offenses for which registration is required under Section 290 ¹ of this Code to violations of Division 10 (commencing with Section 11000) of the Health and Safety Code, or to misdemeanor violations of the Vehicle Code relating to operation of a vehicle or of any local ordinance relating to operation, standing, stopping, or parking of a motor vehicle.' The justice court denied defendant's petition to seal the records because possession of marijuana was a crime defined in division 10 of the Health and Safety Code, being then section 11530 thereof.

Defendant appealed to the Superior Court of Placer County upon an agreed statement and a stipulation of the grounds of appeal. These were that Penal Code section 1203.45 was violative of both federal and state constitutions because, insofar as it excluded him from the right to have his records sealed, it denied him both due process and equal protection guarantees, invaded rights of privacy and subjected him to a cruel and unusual punishment. The superior court affirmed the justice court's order but recommended that counsel consider certification of the appeal to this court as necessary to settle an important question of law. The matter was certified to us upon the issues above stated.

I

With the exception of the equal protection challenge, defendant's contentions may be disposed of with brief comment. The claim that his exclusion from the sealing privilege constitutes cruel and unusual punishment was not briefed and can be deemed waived. (Case v. City of Los Angeles (1963) 218 Cal.App.2d 36, 42, 32 Cal.Rptr. 271.) However, as below explained, section 1203.45 is remedial in nature and does not prescribe punishment for any offense. The constitutional limitation against cruel and unusual punishment is relevant only to an attack on the sanctions set forth in former section 11530 (now § 11357) of the Health and Safety Code. ²

As to the claimed invasion of rights of privacy, the perpetrator of a public offense may not characterize the public consequences of arrest and conviction as an invasion of a Constitutionally protected right of privacy. Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 defines a constitutionally protected right of privacy in certain relationships that fall within the 'penumbra' of freedoms guaranteed by the Bill of Rights. But we do not conceive that, upon the record of this case, the relationship between an accused and society is within that penumbra. Defendant cites Post-Griswold decisions re penumbral rights of privacy but none is here relevant. The equal protection challenge is the central issue of this appeal.

II

Before deciding whether or not a statute violates the equal protection clauses of the federal or state constitutions, a court must determine the proper standard for reviewing any classifications which the statute creates. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16--17, 112 Cal.Rptr. 786, 520 P.2d 10; Sail'er Inn v. Kirby (1971) 5 Cal.3d 1, 16--17, 95 Cal.Rptr. 329, 485 P.2d 529; In re Antazo (1970) 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999.) When a classification is based upon a 'suspect' category (race, creed, sex, wealth, etc.) or touches upon a 'fundamental interest,' it is subject to 'strict scrutiny' and 'active and critical analysis' by the court. The state then 'bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are Necessary to further its purpose.' (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 785, 87 Cal.Rptr. 839, 852, 471 P.2d 487, 500.) (Original emphasis.) In the absence of a suspect category or fundamental interest, the standard is one of judicial restraint wherein a presumption of constitutionality exists. It is then merely required that the distinctions drawn bear 'some rational relationship to a conceivable legitimate state purpose.' (Id. at p. 784, 87 Cal.Rptr. at p. 852, 471 P.2d at p. 500.)

Defendant argues that Penal Code section 1203.45 violates his right to equal protection of the law because it singles out the misdemeanant possessor of marijuana to deny him the same sealing privilege that is granted to other misdemeanant offenders whose crimes may include elements of violence or property damage and loss. Thus, he says, the exclusion places him, a casual or social possessor of marijuana, in the same category of the predatory and felonious seller, dealer and addict user of any narcotic. This, he asserts, is an invidious discrimination. He concedes that it is reasonable to deny the sealing privilege to these 'hard core' offenders because of police requirements to identify drug suppliers and addicts. He concedes that recidivism rates for sex offenders justify the preservation of the records for immediate availability to police agencies when a sex offense occurs in the area of their residences. He also concedes that the procedures to suspend or revoke driver's licenses found in the Vehicle Code justify the exclusion of traffic offenders from the sealing privilege. But, he argues, no similar or other compelling reason exists and no legitimate governmental purpose is served by the exclusionary classification made in said section 1203.45.

The Attorney General contends that said section 1203.45 was part of the comprehensive reexamination and revision of laws controlling narcotics enacted in 1961 by the California Legislature. He argues that 'the decision of the punishment which is to be imposed against an offender in the light of the desirability of suppressing particular types of crimes must be made by the Legislature.' (People v. Quilon (1966) 245 Cal.App.2d 624, 629, 54 Cal.Rptr. 294, 298.) We have no quarrel with the principles enunciated in Quilon and recognize them as controlling in any consideration of the sanctions set forth in former section 11530 of the Health and Safety Code. But they do not apply to section 1203.45 of the Penal Code.

Section 1203.45 was obviously enacted to achieve the salutary purpose of ameliorating the harsh and life-long social economic handicaps that accrue to persons under 21 who are convicted of a single misdemeanor offense--an act most frequently reflecting immature judgment or youthful irresponsibility rather than a criminal bent or disposition. These disadvantages are undebatable and well documented. ³ As one comment puts it, the effective sealing of criminal records is a 'matter of conscience, not merely of convenience.' (Kogan & Loughery, Jr., Sealing and Expungement of Criminal Records--The Big Lie, 61 J.Crim.L.C. & P.S. 378.) The ends of social justice sought to be achieved by section 1203.45 place it in a totally different category of legislation than the penal provisions of the narcotics and controlled substance crimes defined in division 10 of the Health and Safety Code. It is remedial rather than penal in nature. Further, some 1800 chapters of the 1961 statutes separate the two enactments. The 1961 Health and Safety Code amendments are in chapter 274 and Penal Code section 1203.45 in chapter 2054 of said statutes. We find nothing in the legislative history that supports the contention that the latter statute was an integral part of legislative action to solve the grave social problems of drug abuse.

Defendant's exclusion from the sealing privilege effectively shackles him to a lifetime in the rogues' gallery. When on school, employment, credit or other applications he is queried as to any arrest or conviction of crime, he must respond affirmatively, and undergo the embarrassment of explanation and possible rejection thereof. ⁴ By any judicially declared criteria, such exclusion involves a...