PEOPLE DISTRICT ATTORNEY OF COUNTY OF SAN MATEO v. BLUMENSHINE (1975)

Appellant and real party in interest herein was charged, by a complaint filed in defendant municipal court, with a violation of Health and Safety Code section 11360, a felony.¹ A preliminary examination was conducted in defendant court, at the conclusion of which the judge, sitting as a magistrate, ordered that appellant be discharged on the ground that there was not sufficient cause to believe appellant guilty of a public offense. (See Penal Code section 871.) Thereafter, appellant filed a motion in the same criminal case, asking that defendant court ordered the Sheriff of San Mateo County ‘to recover all copies of arrest records, photographs, fingerprint and other memoranda of the arrest . . . and destroy same.’ Pursuant to the motion the court ordered that the Sheriff of San Mateo County ‘destroy any and all arrest records, fingerprint cards, photographs, modus operandi records and any other data now in his possession or under his control in regard to the arrest of defendant. . . .’ It was further ordered that the sheriff ‘recall any and all of the above mentioned records . . . furnished to CII, FBI or any other law enforcement agency, and upon receipt of same to destroy same.'²

The district attorney (hereafter referred to as plaintiff) filed in the superior court the instant petition for writ of mandate/prohibition, seeking to have the municipal court order set aside. The superior court granted the petition. Judgment was entered ordering that a peremptory writ of mandate/prohibition issue commanding the municipal court to set aside its order directing the Sheriff of San Mateo County, to recover and destroy all documents relating to the arrest of appellant. This appeal is from the judgment.

We are of the opinion that the superior court was correct in ordering that the municipal court order be set aside. We believe, however, that appellant is not left without other relief, as will be more fully discussed below.

The order in question not only directs the sheriff to destroy records in his possession; it further commands him to recover records from other state and federal authorities. No statutory authority exists for the issuance of either directive.

The order of the municipal court, by reason of its provisions, must be deemed to constitute either a writ of mandate or a mandatory injunction. The relationship between these two forms of equitable relief has been said to be obscure (see 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 19 at p. 3793). The difference between them, if any, is more one of definition than of substance.

The writ of mandamus may lie to compel public officers, boards and agencies to perform an act which the law specifically requires them to perform. The basic requirements for mandamus are (1) a clear, present and usually ministerial duty on the part of respondent and (2) a clear, present and beneficial right in the petitioner to the performance of that duty. In the absence of a showing of this correlative right and duty the writ will be denied. (See Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 813, 25 Cal.Rptr. 789.) Although the statutory provisions regarding injunctive relief do not expressly define the term mandatory injunction, (Civil Code, §§ 3367–3368) an injunction which directly or indirectly grants affirmative relief by the compelling of a specific act is commonly designated a mandatory injuction. (27 Cal.Jur.2d, Injunctions, §§ 2, 6 at pp. 99, 104—105.)

In any event, a municipal court lacks jurisdiction to issue either a writ of mandate or a permanent injunction. Code of Civil Procedure section 1085 provides that a writ of mandate may be issued by any court, with the specific exception of municipal and justice courts. And, although Code of Civil Procedure section 89 gives municipal courts the power to issue temporary restraining orders and preliminary injunctions, it does not give them jurisdiction to issue final and permanent injunctions. (St. James Church v. Superior Court (1955) 135 Cal.App.2d 352, 362, 287 P.2d 387.)

A municipal court is not a court of general jurisdiction; its jurisdiction is limited by the Constitution to that prescribed by the Legislature. (Cal.Const., art. VI, § 5; see generally 1 Witkin, Cal.Procedure (2d ed. 1970) §§ 167–171 at pp. 437–439.) Appellant argues, however, that the order issued herein by the municipal court was within its ancillary legal and equitable jurisdiction as provided in Code of Civil Procedure section 89, subdivision c. That section provides in part that ‘[i]n any action that is otherwise within its jurisdiction, the court may impose liability whether the theory upon which liability is sought to be imposed involves legal or equitable principles.’

As noted above, the case in which the municipal court order was made was a criminal case. We do not view the order as an ‘imposition of liability’ coming within the ancillary legal or equitable jurisdiction of the municipal court.

We deem the subject matter of expungement of arrest records to lie primarily within the province of the Legislature rather than with the courts. (Sterling v. City of Oakland (1962) 208 Cal.App.2d 1, 6, 24 Cal.Rptr. 696.) The Legislature has set up an appropriate scheme for the keeping of arrest records, pursuant to section 11100 et seq. of the Penal Code. No provision has been made for the expungement or sealing of arrest records of persons who have been accused of crime and who have been acquitted or dismissed without trial. But the Legislature has authorized the sealing of arrest records on behalf of certain other persons. When a defendant has been arrested for committing a misdemeanor while a minor (Pen.Code, §§ 851.7, 1203.45), or when he has completed probation (Pen.Code, §§ 1203.4, 1203.4a), the record of his arrest may be sealed. An order sealing the record results in a determination that ‘such conviction, arrest, or other proceeding shall be deemed not to have occurred, and the [person involved] may answer accordingly any question relating to their occurrence.’ (Pen.Code, § 1203.45.)

Thus the Legislature has determined to afford judicial relief to those persons who fall within the provisions of the above cited code sections. But once the Legislature has decided to afford judicial relief to a class of persons, the limitation is invalid unless there is a rational basis for denying the right to seek relief to persons not in the described class. (McMahon v. Municipal Coutr (1970) 6 Cal.App.3d 194, 199, 85 Cal.Rptr. 782.) There is no rational basis for denying appellant, who has not been convicted of a crime, the benefits of Penal Code section 1203.45 which are afforded to those who have been arrested or convicted. (McMahon v. Municipal Court, supra.) In order to give constitutional validity to Penal Code section 1203.45 it is necessary to hold that it applies to persons not expressly within its ambit.

Had the municipal court ordered appellant's record sealed, it could well be held that it acted within its powers. In McMahon v. Municipal Court, supra, the appellate court so indicated. The McMahon court directed the superior court to mandate the municipal court to determine on the merits whether petitioners were entitled to relief under Penal Code section 1203.45. Yet the petitioners did not come within the provisions of the section. The court reasoned that if section 1203.45 were not deemed to be applicable to the petitioners, the section would be unconstitutional in that it would deprive petitioners of the equal protection of the laws.

In the instant case, appellant, like the McMahon petitioners, has not been convicted of any crime. It would thus appear that if, after a hearing on the merits, the municipal court had ordered the record sealed it would have had the jurisdiction and the discretion so to do.

It must be concluded, however, that in issuing the order which it did, the municipal court acted without statutory authorization and in excess of its jurisdiction.

In view of this decision, we do not find it necessary to consider other constitutional points raised by appellant.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Health and Safety Code section 11360 provides in pertinent part as follows: ‘Every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of five years to life and shall not be eligible for release upon completion of sentence or on parole or any other basis until he has been imprisoned for a period of not less than three years in the state prison.’

2.  The court's reference to CII is erroneous. The Bureau of Criminal Identification and Investigation was created in 1953 as a division of the Department of Justice. 2 Stats. 1953, ch. 1385, § 1, p. 2964 (enacting Pen.Code, § 11100). As part of a legislative reorganization of various criminal statutes, however, that section was repealed. 2 Stats. 1972, ch. 1377, § 77, p. 2836. The functions of CII are now performed by the Bureau of Identification and Information.

EMERSON,* Associate Justice. FN* Retired judge of the Superior Court sitting under assignment by the Chairman of the Judicial Council.

CALDECOTT, P. J., and RATTIGAN, J., concur.