Hurley Scattered

Hurley Scattered

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Record Sealing & Destruction in California by Darren Chaker

I. PENAL CODE SECTION 851.8 DICTATES ALL RECORDS ARE TO BE DESTROYED UPON A SHOWING OF FACTUAL INNOCENCE

"'[Penal Code] section 851.8 is for the benefit of those defendants who have not committed a crime. It permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law -- because no objective factors justified official action -- to purge the official records of any reference to such action. . . ..." (People v. Matthews (1992) 7 Cal.App.4th 1052, 1056.) (Emphasis added)

The Court in Loder v. Municipal Court, 17 Cal.3d 859, 553 P.2d 624 Cal. 1976, emphasized the significance of allowing all records to be sealed and destroyed:

Arrest records and all other documents in the case may be sealed upon request whenever a person charged with any offense has been acquitted and it appears to the judge that he was "factually innocent"; and in that event, the court must 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. (Emphasis added)

Penal Code section 851.8 (b) dictates "any law enforcement agency" to destroy their records:

If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy such records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy such records. The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy such records, unless otherwise provided in this section. (Emphasis added)

Of course, a factual innocence petition must be granted if the Petitioner is factually innocent of the charges for which the arrest was made, even if the Petitioner may have committed some other crime than the one for which he was arrested. People v. Laiwala (App. 6 Dist. 2006) 49 Cal.Rptr.3d 639, 143 Cal.App.4th 1065.

Unfortunately, when the State was contacted to resolve this matter without a hearing, it indicated it would oppose the motion based on the belief reasonable cause existed at the time the charge was filed. However, the State's misunderstanding has swirled around the tense of the verb exists. Despite the rather clear use of the present tense in the statute, suggests that section 851.8(b) requires that there was no reasonable cause to believe the petitioner was guilty at the time of arrest. (People v. Matthews, 7 Cal. App. 4th 1052 (1992).) More recent case law establishes the pivotal time for viewing the evidence is when the motion is heard. The statutory language "necessarily means that the existence of reasonable cause depends on the current evidence rather than simply the evidence that existed at the time that the arrest and prosecution occurred." (People v. Laiwala, 143 Cal. App. 4th 1065, 1068 & n. 3 (2003).) (Emphasis added)

II. MS. XXXX DID NOT COMMIT THE CRIME ALLEGED AND A FINDING OF FACTUAL INNOCENCE IS DICTATED

A. The Prosecution Conceded There Was No Evidence and Moved to Dismiss.

On XX, 2006, the Office of the District Attorney moved to dismiss the instant case it litigated for over three years. The reason: there was no evidence Petitioner made a single phone call that could be deemed to have violated Section 653(m) since the 'phone trap' was placed on the wrong house. Specifically, the 'phone trap' was placed on Petitioner's residence and not on the phone of the purported victim. Therefore, no evidence existed from Day 1 this case was filed, just as no evidence existed on day Day 1,146 when the case was dismissed.

B. The Allegation of Playing Music to Substantiate Count II is Improper Since Picking Up The Phone and Listening to Music on One Occasion is Constitutionally Protected Speech.

Creative works unquestionably enjoy the full measure of First Amendment protection. See, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 569 (1995) (holding that the First Amendment shields painting, music, and poetry even if it is without an articulable message); Abood v. Detroit Board of Education, 431 U.S. 209, 231 (1977) ("[O]ur cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters . . . is not entitled to full First Amendment protection"); Bery v. New York, 97 F.3d 689, 695 (2nd Cir. 1996); Nelson v. Streeter, 16 F.3d 145, 148 (7th Cir. 1994); Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 404-05 (2001) (all recognizing First Amendment protection for artistic expression); McCollum, 202 Cal. App. 3d at 999.

Even if Ms. XXXX made call #2, the fact is making a single phone call and leaving music on an answering machine is not against the Section 653(m). In fact, music is a form of expression embraced as speech and further embraced by the constitution. Therefore, if the purported victim played his message on the answering machine, listening to music would be no more annoying than listening to messages left by debt collectors or telemarketers. In a prosecution for making obscene telephone calls with intent to annoy, there was no requirement that the State present evidence that Petitioner's words were "obscene" by contemporary community standards. People v. Hernandez (App. 2 Dist. 1991) 283 Cal.Rptr. 81, 231 Cal.App.3d 1376, review denied. At best, the State could only allege music was playing and nothing else. At worst, the allegation of music playing is that the music is distasteful, but not against the law since playing music is protected expression. Consequently, no law was violated.

C. No Allegation Exists Ms. XXXX 'Threatened' Mr. XXXX.

Before pure speech constitutionally may be punished as a criminal threat, the words used, when viewed in the context in which they are communicated, must convincingly express a serious intent to inflict harm. United States v. Kelner, 534 F.2d 1020, 1027 (2nd Cir. 1976). California Penal Code § 422 follows this model. To be punished as a criminal threat, the words, in context, must be "serious, deliberate statements of purpose." In re Ricky T., 87 Cal. App. 4th 1132, 1137 (2001). The threat must be "so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat . . . ." Cal. Penal Code § 422. Thus, in the absence of communication that meets the criteria, a statement merely constitutes words not a threat. As such, any allegation Petitioner threatened the alleged victim simply fails to meet any respect for the definition of a threat.

Last, the threat requirement of certainty incorporated into California Penal Code § 422 is a constitutional one. True threats are based on pure speech; the standard for determining whether the speech crosses the boundary from protected speech to an unprotected criminal threat is thus a high one. Statutes which attempt to punish threats "must be narrowly directed only to threats which truly pose a danger to society." People v. Mirmirani, 30 Cal. 3d 375, 388 n.10 (1981). They are "not enacted to punish emotional outbursts, [they] target[] only those who try to instill fear in others." In re Ryan D., 100 Cal. App. 4th at 861 (quoting People v. Felix, 92 Cal. App. 4th 905, 913 (2001)). Nor may the State "punish such things as 'mere angry utterances or ranting soliloquies, however violent.'" Id. (quoting People v. Teal, 61 Cal. App. 4th 277, 281 (1998)).

As here, it was never alleged Petitioner made any statement to the purported victim that would constitute a threat. A mere hang-up phone call is not a threat, but mere hypersensitivity.

D. Sporadic Phone Calls Do Not Constitute Harassment.

Scattered telephone calls (four to five times per year) to a plaintiff's law office over a period of years from a stock brokerage firm soliciting the sale of securities, which did not disrupt the daily routine or conduct of the law practice, did not constitute an actionable invasion of privacy. Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 567 N.E.2d 912 (1991). A single telephone call, involving no threats or abusive language, as a matter of law cannot be the basis for a claim of tort of invasion of privacy by intrusion. Ledbetter v. Ross, 725 N.E.2d 120 (Ind. Ct. App. 2000).

It is also important to recognize, as a general proposition, that "in an industrial and densely populated society, some intrusions into one's private sphere are inevitable." R. Rodman, Procedural Forms § 1051, at 491 (1990). Thus, some uninvited outside contacts are to be expected, and not every intrusion will constitute a legally cognizable violation of privacy. See Kelley v. Post Publishing Co., 327 Mass. 275, 278, 98 N.E.2d 286 (1951) ("The law does not provide a remedy for every annoyance that occurs in everyday life. Many things which are distressing or may be lacking in propriety or good taste are not actionable"). Telephone solicitations are an often unpleasant fact of modern life that must be faced by anyone who has a telephone and permits the telephone number to be listed in directories accessible to the general public.[1]

Mr. XXXX is a realtor, self-proclaimed activist, and has ran for public office. Mr. XXXX publicly displays his phone number on his car, cards, and on the numerous lawsuits he has filed in pro per while suing judges and public officials. Consequently, when Mr. XXXX decided to display his number and thrust himself into the public spotlight, he surrendered a certain amount of privacy. As the above case law demonstrates, when such people like Mr. XXXX make such a spectacle out of themselves, they expect people will call and some people will not agree with his conduct. Further, Mr. XXXX is in the real estate business. He makes a living off of people calling him. Thus to say, he has received a call or two he did not want would be an unrealistic assertion. Nonetheless, every unwanted call simply doesn't constitute a harassing phone call.

CONCLUSION

Section 851.8 (c) permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law--because no objective factors justified official action--to purge the official records of any reference to such action. People v. Adair (2003) 129 Cal.Rptr.2d 799, 29 Cal.4th 895, 62 P.3d 45.

The fact is the prosecution had not a shred of evidence demonstrating Petitioner made either of the two phone calls to the purported victim or that either call was within the scope of Section 851.8. The fact is that this case dragged on for three years with a defendant who refused to give in and stand up for herself since none of her attorneys would. In lieu of a 1 of 6 appointed attorneys taking the initiative, they made every effort to have Petitioner plead guilty to crimes she did not commit. In the end, the State agreed to dismiss by conceding it had no evidence Petitioner made a single call. Hence, the state wasted three years of public funds prosecuting the case, as well as the public paying for multiple appointed attorneys to litigate a case. Three years later, the State walked away with nothing. Consequently, this court should find XXXX factually innocent and order the sealed and records destroyed.

DATED: XXXX, 2009 Respectfully submitted,

XXXXXX, Esq.

Attorney for XXXXX

[1] Sofka v. Thal, 662 S.W.2d 502, 509 (Mo.1983) ("Repeated telephone calls are an accepted feature of everyday life, and maintaining telephone service evidences the expectation if not the hope of calls from time to time"). ("Public employees, by virtue of their public employment, have diminished expectations of privacy"); Broderick v. Police Comm'r of Boston, 368 Mass. 33, 44, 330 N.E.2d 199 (1975), cert. denied, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636 (1976) (right of privacy may be surrendered by public display); Cefalu v. Globe Newspaper Co., 8 Mass.App.Ct. 71, 77, 391 N.E.2d 935 further appellate review denied, 379 Mass. 925 (1979), appeal dismissed and cert. denied, 444 U.S. 1060, 100 S.Ct. 994, 62 L.Ed.2d 738 (1980) ("The appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects").

About the Author

It's a little too much to write here, so see Extended Author Bio.. Darren Chaker

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Attention Deficit Disorder (ADD) has quickly become a controversial topic in recent years. Whereas other books on the subject describe the condition as inherited, Dr. Gabor Mat believes that our social and emotional environments play a key role in both the cause of and cure for this condition. In Scattered, he describes the painful realities of ADD and its effect on children as well as on career and social paths in adults. While acknowledging that genetics may indeed play a part in predisposing a person toward ADD, Dr. Mat moves beyond that to focus on the things we can control: changes in environment, family dynamics, and parenting choices. He draws heavily on his own experience with the disorder, as both an ADD sufferer and the parent of three diagnosed children. Providing a thorough overview of ADD and its treatments, Scattered is essential and life-changing reading for the millions of ADD sufferers in North America today.