GEORGE SHERWOOD v. DEPARTMENT OF JUSTICE BCI (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

George Sherwood appeals from the trial court's judgment denying his petition for a writ of mandate directing the Department of Justice to delete a purportedly erroneous entry in his criminal history record.   We affirm.

FACTS AND PROCEEDINGS

Bakersfield police arrested appellant George Sherwood in October 1985 on two counts of indecent exposure in violation of former Penal Code section 314.1.   In February 1986, appellant pleaded guilty to one count of indecent exposure;  the district attorney on its own motion dismissed the second count.   The case disposition report prepared by the Bakersfield Municipal Court at or near the time the court accepted appellant's plea states appellant also pleaded guilty to one count of violating former “PC 647a-annoy / molest child.” ¹  This appeal arises from appellant's assertion that he did not plead guilty to violating section 647a.

Rejecting the department's answer, appellant exercised his right to an administrative hearing to contest the accuracy of the department's records.   After a hearing, the administrative law judge found the department's records accurately reflected appellant's guilty plea for violating section 647a.   The department adopted the administrative law judge's findings.

Appellant filed a petition for writ of administrative mandate.   His petition asked the court to order the department to delete the department's record of a section 647a conviction.   The trial court denied the petition because the court concluded the department had presented sufficient evidence to the administrative law judge to establish the department's record was accurate.   The court entered judgment for the department.   This appeal followed.

DISCUSSION

The Department of Justice maintains for people convicted of crimes a “state summary criminal history information.”   The information the department keeps is “the master record of information compiled by the Attorney General pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, fingerprints, photographs, date of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person.”  (Pen.Code, § 11105, subd. (a).)  If a person believes the department's record for that person is inaccurate, the person may petition the department to correct the record.  (Pen.Code, § 11126.)   If the department concludes the challenged record is correct, the department must notify the person of the department's determination and refer the matter for administrative adjudication before an administrative law judge.  (Pen.Code, § 11126, subd. (c).)  A person who disagrees with the results of the administrative adjudication may seek judicial review by filing a petition for writ of mandate.  (Pen.Code, § 11126, subd. (c);  Gov.Code, § 11523;  People v. Martinez (2000) 22 Cal.4th 106, 131 (Martinez ).)   Assuming, purely for the sake of argument that a person has, as appellant contends, a vested fundamental right to accuracy in the department's records on that person, the trial court independently reviews the administrative decision.  (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395;  MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217.)   We review the trial court's judgment for substantial evidence.  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824;  MHC Operating Limited Partnership v. City of San Jose, supra, at p. 217.) ²

The administrative law judge and trial court relied on the Bakersfield police department's fingerprint card from the time of appellant's arrest and the “Disposition of Arrest and Court Action” submitted by the Bakersfield Municipal Court to the Department of Justice following appellant's sentencing.   At the administrative hearing, appellant objected to admission of the Disposition, but he did not specify the nature of his objection.   The Disposition stated appellant pleaded guilty to one count of violating section “PC 647a-annoy / molest child.” ³  The Disposition additionally included personal information identifying appellant, such as his full name, date of birth, height, weight, and hair and eye color.   Appellant does not challenge the accuracy of that personal information or contend the Disposition applied to someone other than him.   Except to claim the entry for violating section 647a does not jibe with his having no memory of such a plea, he offered no affirmative evidence that the document was inaccurate.   Hence, the administrative law judge and trial court had no rational basis to reject the Disposition and conclude appellant did not plead guilty to violating section 647a.   Consequently, under an independent standard of review, which solely for the sake of argument we assume applied below, the trial court correctly denied appellant's petition for writ of administrative mandate.

Appellant contends the administrative law judge and trial court erred in admitting the Disposition into evidence because it was inadmissible hearsay.   Appellant notes that hearsay may be used in an administrative hearing to supplement or explain other evidence, but by itself is insufficient to support a factual finding unless an exception to the hearsay rule makes the evidence admissible.  (Gov.Code, §§ 11500, 11513, subd. (d).)  Even assuming appellant has not waived the error for failing to specify the nature of the objection, his challenge to the Disposition fails because the Disposition was admissible under the exception for official records.  (Evid.Code, § 1280.)

Evidence Code section 1280 provides:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:  [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Appellant asserts the Disposition does not qualify as an official record because it was not created in furtherance of an official duty at or near the time of the events it records.   Appellant's assertion is not well taken.   Law enforcement agencies have the statutory duty to report criminal history information to the Department of Justice.  (Pen.Code, § 13150;  Martinez, supra, 22 Cal.4th at p. 126.)   The information an arresting agency must provide to the department includes the “following personal identification data:  Name - (full name);  Aliases;  Monikers;  Race;  Sex;  Date of birth;  Place of birth (state or country);  Height;  Weight;  Hair color;  Eye color;  CII number;  [¶] The following arrest data:  Arresting agency;  Booking number;  Date of arrest;  Offenses charged․”  (Pen.Code, § 13125.)   Moreover, the Department of Justice has a concomitant statutory duty to collect the criminal history information which arresting agencies must provide.  (Martinez, supra, at p. 126.)

Appellant asserts the Bakersfield court did not prepare the Disposition within the scope of a public duty because that court did not record all of the data required under Penal Code section 13125.   In the same vein, appellant additionally contends the Disposition was not timely prepared within the scope of a public duty because a Department of Justice employee wrote appellant's CII number on the Disposition about 40 days after the Bakersfield court sentenced him, instead of at the time of sentencing.   According to appellant, 40 days is too long to satisfy the requirement that the official record be created “at or near the time” of the act that the document records.

In support, appellant cites Glatman v. Valverde (2006) 146 Cal.App.4th 700.   There, the trial court did not abuse its discretion in finding that a one week delay between a forensic lab test and lab report meant the report was not written at or near the time of the condition it recorded.  (Id. at p. 704.)   Appellant's reliance on Glatman is unavailing, however, because no bright line exists for determining whether a document was produced at or near the time of the events it records.  (Ibid.;  Martinez, supra, 22 Cal.4th at p. 128.)   Thus, appellant's citation to a decision finding a trial court did not abuse its discretion in rejecting a forensic lab report does not illuminate whether the administrative agency and trial court here abused their discretion in admitting into evidence a different type of document such as the Disposition.

Appellant contends the administrative agency and trial court erred by placing on him the burden of proving the Disposition was inaccurate.   In support of his contention, appellant asserts the respondent in an administrative proceeding -which is usually a business or member of the public as opposed to an administrative agency - generally bears the burden of proof in the proceeding.   From his general observation, appellant moves to the particular point that the statutory scheme governing challenges to inaccuracies in criminal history records designates the Department of Justice as the “respondent” in an administrative hearing.  (Pen.Code, § 11126, subd. (c).)  It follows, appellant reasons, that the department thus carries the burden of proving the record is accurate.   Appellant's conclusion fails, however, because he attaches too much significance to the label “respondent” and overlooks the principle that the party seeking relief ordinarily bears the burden of proof.   (Evid.Code, § 500 [“a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief ․ that he is asserting”].)   Here, appellant sought a writ of mandate from the trial court ordering the department to delete an entry in its records;  appellant therefore bore the burden of proving the entry was inaccurate.   (Accord Martinez, supra, 22 Cal.4th at pp. 124-125 [defendant challenging admissibility of criminal history under official records exception bears burden of proving its inadmissibility].)

DISPOSITION

The judgment is affirmed.   Each side to bear its own costs on appeal.

WE CONCUR:

FOOTNOTES

FN1. At the time, section 647a stated in part:  “Every person who annoys or molests any child under the age of 18 is a vagrant and is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not exceeding six months or by both such fine and imprisonment.”  (Stats.1983, c. 1092, § 315.).  FN1. At the time, section 647a stated in part:  “Every person who annoys or molests any child under the age of 18 is a vagrant and is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not exceeding six months or by both such fine and imprisonment.”  (Stats.1983, c. 1092, § 315.)

FN2. If a person's interest in accurate criminal records does not involve a fundamental right, we review the administrative decision for substantial evidence.  (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 395;  Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)   The key factual dispute in the administrative hearing and in the trial court was whether appellant suffered a conviction for violating section 647a.   Appellant having, as the court found, “submitted no proof in support of his claim that the conviction was inaccurate,” appellant's only evidence was his inability to recall such a conviction.   Implicitly concluding appellant's memory was faulty, the trial court found the administrative record contained substantial evidence of the conviction.   Although the trial court framed its finding as one of substantial evidence, its finding reflected, for all intents and purposes, the court's independent judgment rejecting appellant's claim as wholly lacking evidentiary support.   Hence, even if we were to accept appellant's assertion that the dire collateral consequences of a criminal conviction make a person's interest in the accuracy of his criminal record a fundamental right (accord People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 [violation of due process if sentencing court relies on incorrect sentencing and probation reports] ), neither we nor the trial court would reach a different result here..  FN2. If a person's interest in accurate criminal records does not involve a fundamental right, we review the administrative decision for substantial evidence.  (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 395;  Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)   The key factual dispute in the administrative hearing and in the trial court was whether appellant suffered a conviction for violating section 647a.   Appellant having, as the court found, “submitted no proof in support of his claim that the conviction was inaccurate,” appellant's only evidence was his inability to recall such a conviction.   Implicitly concluding appellant's memory was faulty, the trial court found the administrative record contained substantial evidence of the conviction.   Although the trial court framed its finding as one of substantial evidence, its finding reflected, for all intents and purposes, the court's independent judgment rejecting appellant's claim as wholly lacking evidentiary support.   Hence, even if we were to accept appellant's assertion that the dire collateral consequences of a criminal conviction make a person's interest in the accuracy of his criminal record a fundamental right (accord People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 [violation of due process if sentencing court relies on incorrect sentencing and probation reports] ), neither we nor the trial court would reach a different result here.

FN3. See People v. Miles (2008) 43 Cal.4th 1074, 1084-1085 (when “the relevant judgment record both specifies the particular statute under which the defendant was convicted and includes a brief description in words of the offense ․ one may reasonably infer, absent contrary indicia, that the additional prose notation is not mere surplusage, but an attempt to delineate” the defendant's particular violation)..  FN3. See People v. Miles (2008) 43 Cal.4th 1074, 1084-1085 (when “the relevant judgment record both specifies the particular statute under which the defendant was convicted and includes a brief description in words of the offense ․ one may reasonably infer, absent contrary indicia, that the additional prose notation is not mere surplusage, but an attempt to delineate” the defendant's particular violation).

BIGELOW, P. J. GRIMES, J.