PEOPLE v. CHAPMAN (1976)

Defendant Lonnie Gene Chapman has appealed from a final judgment (a probation order) given on December 31, 1975. The notice of appeal states the appeal is based solely on grounds occurring after entry of defendant's plea of guilty, which do not challenge the validity of the plea.

Defendant was charged, on October 9, 1975, with a violation of Health and Safety Code section 11358 (planting and cultivating marijuana). On November 14, 1975 he pleaded guilty to the lesser included offense of violating section 11357 (possession). That was pursuant to a plea bargain, the conditions of which were:

‘People to dismiss H&S 11358, def to plead guilty to H&S 11357 on cond time, if any to be limited to a max of 4 mos, local time, recommend no revocation on prior 11364. To be reduced to misd after 2 yrs. Sentencing to be December 31, 1975.’

The oral proceedings at the taking of the guilty plea make it clear defendant knew the judgment to be imposed might be as a felony with probation, which, in case of a violation, might be revoked and a prison sentence imposed.

On December 31, 1975, imposition of sentence was suspended and defendant was placed on probation for three years, with a condition, among others, he spend four months in local custody.

When the plea of guilty was entered and the plea bargain struck, the Legislature had enacted Health and Safety Code section 11361.5(b), which states:

‘Any person convicted of a violation of Section 11357 or a statutory predecessor thereof, or arrested but not convicted for a violation of Section 11357 or a statutory predecessor thereof, may petition the superior court for the county in which the conviction or arrest occurred for an order directing the destruction of records pertaining to such arrest or conviction. If the court, after a hearing to determine the facts, finds that such an arrest or conviction occurred, it shall, subject to payment of the costs of destruction by the petitioner, order each court of this state, state agency, and local public agency having records pertaining to the arrest or conviction to destroy all records thereof in the possession of the court or agency within such reasonable time as the court in its order shall determine. However, in no event shall the petitioner be required to pay more than fifty dollars ($50) for the aggregate costs of destruction. Moneys submitted by the petitioner for the costs of destruction of such records shall be remitted by the court to the agencies and courts destroying such records to reimburse the cost thereof. Upon the expiration of such reasonable time as the court in its order shall determine, the order of the court shall be destroyed.

‘This subdivision shall be applicable only to arrests and convictions occurring prior to January 1, 1976.’

On January 20, 1976, defendant filed in the same proceeding a ‘notice of motion for destruction of records pursuant to section 11361.5(b), Health and Safety Code.’

Defendant's motion was denied on February 20, 1976.

The trial court, in denying defendant's motion, did so upon the ground that the legislative intent of saving an offender from the stigma of his past violation did not intend to save him from a penalty imposed and currently unserved; such would be the result of the destruction of all records of the imposition of the currently unserved sentence.

The Attorney General has presented a thorough, scholarly and persuasive exposition of the inherent right of a court of record to preserve its records free from legislative control. While we affirm the decision of the trial court, we find it unnecessary to determine if for all purposes Health and Safety Code section 11361.5(b) is unconstitutional as an attempt to usurp the powers of the judiciary over its own records in violation of the doctrine of separation of powers.

Our respect for the coordinate branch of government leads us to believe that the Legislature had no such dire intent, but that it failed to think through as to the effect of the words it used.

The integrity of the court system requires that the courts have sole custody and control of their own records. To say that a record of a person convicted of a felony in a proceeding in which judgment has been imposed or probation granted and neither the sentence imposed nor the probationary period has expired must be destroyed because of a legislative enactment is to undermine the very foundation of judicial power and to frustrate the purpose of the judicial act. Acceptance by the courts of such a proposition would be for the courts themselves to cut off the branch of government on which justice has placed her august throne. A statute that purported to have that effect is unconstitutional.

Article III of the California Constitution provides for the separation of powers among the three branches of state government:

“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.' . . .

‘The separation of powers doctrine articulates a basic philosopy of our constitutional system of government; it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch. (See Cal.Const., arts. IV, V and VI; The Federalist, Nos. 47, 48 (1788).) Of such protections, probably the most fundamental lies in the power of the courts to test legislative and executive acts by the light of constitutional mandate . . ..’ (Bixby v. Pierno, 4 Cal.3d 130, 141, 93 Cal.Rptr. 234, 241, 481 P.2d 242, 249.)

‘Our courts are set up by the Constitution without any special limitations; hence the courts have and should maintain vigorously all the inherent and implied powers necessary to properly and effectively function as a separate department in the scheme of our state government. [Citations.]’ (Brydonjack v. State Bar, 208 Cal. 439, 442, 281 P. 1018, 1020.)

As early as 1859 the California Supreme Court vigorously protected its inherent power over its own records by invalidating a portion of the Practice Act, which purported to require written opinions by all appellate courts. Having rendered a judgment of reversal without any opinion setting forth the reasons for the reversal, the Supreme Court responded to a petition asking the Court to file a written opinion as required by the Practice Act:

‘It is but one of many provisions embodied in different statutes by which control over the Judiciary Department of the government has been attempted by legislation. To accede to it any obligatory force, would be to sanction a most palpable encroachment upon the independence of this department. If the power of the Legislature to prescribe the mode and manner in which the Judiciary shall discharge their official duties be once recognized, there will be no limit to the dependence of the latter. . . .

‘The truth is, no such power can exist in the Legislative Department, or be sanctioned by any Court which has the least respect for its own dignity and independence. In its own sphere of duties, this Court cannot be trammeled by any legislative restrictions. . . .

‘. . .

‘The records of the Courts are necessarily subject to the control of the Judges, so far as may be essential to the proper administration of justice. The Court hears arguments upon its records; it decides upon its records; it acts by its records; its openings, and sessions, and adjournments, can be proved only by its records; its judgments can only be evidenced by its records; in a word, without its records, it has no vitality. Legislation, which could take from its control its records, would leave it impotent for good, and the just object of ridicule and contempt. The Clerk, it is true, is a constitutional officer—not subject to appointment or removal by the Court—but subject, in the control of the records, to its orders. It is true the Court cannot, without great abuse of its powers, take, directly or indirectly, from the Clerk, the prerequisites of his office for copies of opinions, and papers on file, nor authorize the destruction or mutilation of any of the records, but, subject to these limitations, it must necessarily exercise control that justice may be done to litigants before it.

‘The power over our opinions and the records of our Court we shall exercise at all times while we have the honor to sit on the Bench, against all encroachments from any source, but in a manner, we trust, befitting the highest tribunal in the State. . . .’ [Emphasis added.] (Houston v. Williams, et al, 13 Cal. 24, 25–28.)

When valuable records of the court are destroyed or portions thereof obliterated, the integrity of the court system is sacrificed and the records no longer conform to the truth. This conflicts with the duty of the judiciary to establish the truth. (See People v. Ham, 7 Cal.App.3d 768, 781, 86 Cal.Rptr. 906.)

We hold that section 11361.5(b) is unconstitutional insofar as it is interpreted to compel the destruction of any record of a court of record, or any copy thereof in the official possession of any officer of the executive department, pertaining to a conviction, judgment or commitment in any proceeding in which there is an unexpired sentence or a grant of probation which has not yet been completed.

We hold also that defendant here, insofar as he may be entitled to any relief under Health and Safety Code section 11361.5(b), is estopped to assert any such right pending the satisfactory completion of the probationary period, or the completion of any sentence that may be imposed for a violation of that probation.

We make that holding because defendant, unquestionably, with knowledge on the part of his attorney, made a bargain by which he was to be placed on probation for three years, was to have the charge reduced to a misdemeanor if he fulfilled the probationary terms successfully for two years, and was subject to revocation with a possible prison sentence within two years, or a misdemeanor sentence within the third year.

We are of opinion also that the proper procedure under Health and Safety Code section 11361.5(b) is to file a petition with the superior court in a proceeding independent from the criminal case involving the conviction.

Judgment affirmed.

FOOTNOTES

FOOTNOTE.  

WHELAN,* Associate Justice (Assigned). FN* Retired Associate Justice of the Court of Appeal, sitting under assignment by the Chairman of the Judicial Council.

AULT, Acting P. J., and COLOGNE, J., concur.