Is a Successful Misdemeanor Diversion Eligible To Be Sealed under PC 851.91?
Sealing an arrest and court record under Penal Code section 851.91 provides many benefits. One of the greatest benefits is that the record will be removed from public view (except for law enforcement). But sealing under Penal Code section 851.91 is only possible when a person has not been convicted of the crime for which they were arrested. People who have been arrested, charged with a crime, and successfully completed a diversion program either years ago or recently may want to request their record to be sealed. Are they eligible?
It is an open question in the courts, but the answer should be “yes.” First, it depends on the type of diversion. Misdemeanor diversion under Penal Code sections 1001.1-1001.9 should be eligible. However, diversion under Proposition 36/Penal Code section 1210.1 is not eligible according to the unpublished case of In re D.C. (2020) 54 Cal.App.5th 727.
Misdemeanor diversion is eligible to be sealed because it is a true dismissal. The type of dismissal is crucial for a case to be sealed under Penal Code section 851.91 because one of the ways a record can be sealed is if “No conviction occurred, the charge has been dismissed, and the charge may not be refiled.” The court in In re D.C. (2020) 54 Cal.App.5th 727 found that Proposition 36 was not a true dismissal because the defendant has to enter a guilty plea and, after the diversion term, the conviction was only set aside for some purposes, not all purposes. In contrast, misdemeanor diversion is a true dismissal: “If the defendant has completed pretrial diversion, at the end of that period, the criminal charge or charges shall be dismissed.” (Pen. Code, § 1000.3, subd. (d).) There are no exceptions to the extent of the dismissal like there is in Proposition 36 cases.
What is more, related laws show that a misdemeanor diversion can be sealed under Penal Code section 851.91. "Upon successful completion of a pretrial diversion program, the arrest upon which the defendant was diverted shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92.” (Pen. Code, § 1000.4, subd. (d).) Penal Code section 851.93 is also illustrative. This section explains the process by which the California Department of Justice reviews records internally to determine if cases are eligible to be sealed (a nice benefit to Californians with records.) Penal Code section 851.93, subdivision (a)(2)(D) makes clear that sealing is available for “A pretrial diversion program, pursuant to Section 1000.4. [and] . . . (iv) A diversion program, pursuant to Section 1001.9.” Finally, the internal review process of section 851.93 “does not limit petitions, motions, or orders for arrest record relief, as required or authorized by any other law, including, but not limited to, Sections 851.87, 851.90, 851.91, 1000.4, and 1001.9.,” which means that regardless of whether sealing has been granted under Penal Code section 851.93 (the internal DOJ process), a person can still file a petition with the court under Penal Code section 851.91. Obtaining a signed court order could be helpful in showing a true dismissal and sealing for employment purposes, firearm ownership, or immigration.
