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Court of Appeal, Fourth District, Division 1, California.

Joseph J. LODER, Plaintiff and Appellant, v. MUNICIPAL COURT of the State of California et al., Defendants and Respondents.

Civ. 12824.

Decided: November 18, 1974

Jean Leonard Harris, San Diego, for plaintiff and appellant. John W. Witt, City Atty., Stuart H. Swett and Peter L. Dean, Deputy City Attys., for defendants and respondents.


Joseph A. Loder appeals the judgment denying a writ of mandamus to direct the removal of an arrest from his police record.

Loder was arrested and charged with disturbing the peace (Pen.Code § 415), battery (Pen.Code § 242), and resisting arrest (Pen.Code § 148) for attacking a police officer who was clubbing Mrs. Loder. Under a covenant not to sue, these charges were dismissed. Loder's motion in the municipal court to have the record of this arrest removed from the police files was denied without prejudice. His appeal to the Appellate Department of the Superior Court was dismissed, there being no appealable order. His petition for writ of mandamus which was then filed was also denied. We affirm.

The sealing of an arrest record is a matter of legislative grace; the court has no power to seal or expunge the record unless there is statutory authorization (McMahon v. Municipal Court, 6 Cal.App.3d 194, 199, 85 Cal.Rptr. 782). The California Legislature has authorized the sealing or expunging of records only when the 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). Loder was neither a minor nor was he on probation. Since he falls outside the statutory scheme, the police department had no duty to erase the record of Loder's arrest and the writ of mandamus was properly denied.

Loder contends the court must act since the dissemination of his arrest record is an unconstitutional invasion of privacy. A recent California case, however, dealing with the sealing of records states:

‘[T]he perpetrator of a public offense may not characterize the public consequences of arrest and conviction as an invasion of a constitutionally protected right of privacy.’ (People v. Ryser, 40 Cal.App.3d 1, 5, 114 Cal.Rptr. 668, 670.)

Loder complains he was not rehired when information of his arrest was given to the San Diego Unified School District. Transmission of arrest records to the school district is authorized by statute (Ed.Code § 13588) and Loder does not assert it was improperly done in his case. In addition, Loder's absenteeism may have been a factor in the District's decision.

Loder contends his privacy is invaded by dissemination of the arrest record to private and public law enforcement personnel and to those authorized by statute to receive it. It is the responsibility of the Legislature to balance the individual's right of privacy and the need to retain criminal records. In two situations, juveniles and probationers, the right of privacy prevails. Otherwise, as set forth in Penal Code section 11100 et seq., the Attorney General is to devise an appropriate scheme of record keeping which may include dismissed cases. The Legislature has not determined that arrest records may be sealed where the arrest, whether or not based on probable cause, is dismissed.

Judgment affirmed.

GERALD BROWN, Presiding Justice.

WHELAN and AULT, JJ., concur.

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Docket No: Civ. 12824.

Decided: November 18, 1974

Court: Court of Appeal, Fourth District, Division 1, California.

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