New Appellate Court Opinion Analyses Whether a Petitioner is Eligible to Have His Record of Arrest Sealed Per Penal Code section 851.91 After a Dismissal of His Case Pursuant to Penal Code section 1203.4!

Today, the Appellate Court Certified for Publication an Opinion analyzing whether a Petitioner is eligible to have his record of arrest sealed pursuant to recently enacted Penal Code section 851.91 after his criminal court case had been “dismissed” pursuant to Penal Code section 1203.4.

In People v. E.B., 2020 S.O.S. 3030, the superior court denied the petitioner’s request to seal his record of arrest pursuant to Penal Code section 851.91. The Petitioner argued that he was entitled to have his record of arrest sealed given that he had obtained Section 1203.4 (“expungement”) relief. According to the superior court, a dismissal pursuant to Penal Code section 1203.4 did not constitute a “vacation of a conviction as contemplated by the legislature for the [section] 851.91.”

The court of appeal agreed with the superior court’s determination that a Section 1203.4 dismissal does not constitute a “vacation” of a plea for purposes of Section 851.91 relief because a dismissal per Section 1203.4 does not act to “nullify, annul, cancel, or make void a conviction” and, thus, the petitioner was not entitled to relief.

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