Judge: James C. Chalfant, Case: 23STCP04261, Date: 2024-08-22 Tentative Ruling

Case Number: 23STCP04261    Hearing Date: August 22, 2024    Dept: 85

Petitioner Sandra Greene (“Greene”) seeks traditional mandamus compelling Respondents Attorney General Rob Bonta, the California Department of Justice, the Office of the Attorney General, and its Record Review and Challenge Section (collectively, “DOJ”) to correct an error in her criminal history. 

The court has read and considered the moving papers and opposition (no reply was filed) and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Greene filed the Petition against Respondent DOJ on November 21, 2023 alleging a claim for traditional mandate.  The Petition alleges in pertinent part as follows.

In 1989, Greene was the defendant in the action titled People v. Greene, LASC A 392605.  Pet., ¶1. On or about December 21, 1989, Greene was charged with felony insurance fraud in violation of Penal Code section 556 (a)(1).  Pet., ¶3.

On November 22, 1995, following her completion of a five-year probationary sentence, Petitioner filed a motion to vacate her guilty plea to Penal Code section 556(a)(1), enter a plea for grand theft in violation of Penal Code section 471, reduce the conviction to misdemeanor petty theft, and thereafter dismiss it.  Pet., ¶4.  The superior court granted Greene’s motion.  Pet., ¶5, Exs. A-1, A-2.  The superior court ordered that DOJ was to be notified of the order pursuant to Penal Code sections 11117 and 13151.  Pet., ¶6, Ex. A-2.

Greene has lived an exemplary life over the last 28 years, free of any law enforcement contact and or unlawful activity.  She is now licensed as a real estate agent and a notary.  Pet., ¶7.

Given her 1995 successful motion to expunge the conviction and the court’s order that the DOJ be notified, Greene believed her criminal history record maintained in DOJ’s files and records did not have any reference to a felony conviction.  Pet., ¶8.

In early July 2023, Greene applied for a permit to purchase a firearm.  A routine background check by the firearm dealer disclosed that she had a felony conviction on her record. The record of a felony conviction prevented her from purchasing a firearm.  Pet., ¶9.

Greene contacted DOJ and provided a copy of the judgment and minute order expunging her record of the felony conviction.  She requested that her criminal history record be corrected to reflect the fact her conviction had been successfully expunged.  Pet., ¶10, Ex. B.  DOJ has refused to correct the record to accurately conform to the fact that Greene has no felony conviction on her record.  Pet., ¶11.

Greene has been unable to purchase the firearm because of the error on her criminal record and DOJ’s continuing refusal and or failure to clear her criminal history record of the expunged conviction.  Pet., ¶12.

Petitioner Greene prays for a peremptory writ commanding Respondent DOJ to correct the error on her criminal history by vacating all references to a felony conviction, and for such other relief as the court deems appropriate.  Pet. at 4.

2. Course of Proceedings

On December 28, 2023, DOJ filed its Answer.

B. Standard of Review

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty.  Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.  Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.  Id. at 584 (internal citations omitted).  Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.  AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.”  Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205.  It is “essentially automatic based on whether certain fixed standards and objective measures have been met.”  Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359.  By contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.

Where there is no ministerial duty, judicial review is governed by an abuse of discretion standard and limited to an examination whether the agency’s actions were arbitrary, capricious, or entirely lacking in evidentiary support, or whether it did not follow the procedure and give the notices required by law.  Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4^th 578, 583-84.  Where a statute provides a ministerial duty, the course of conduct is mandatory and elminiates any element of discretion.  Great Western Savings & Loan Assn. v. City of Los Angeles, (1973) 31 Cal.App.3d 403, 413.

No administrative record is required for these types of traditional mandamus.

C. Governing Law

DOJ maintains and disseminates state summary criminal history information.  Penal Code §11105(a)(1).   The term “state summary criminal history information” refers to “the master record of information compiled by the Attorney General pertaining to the identification and criminal history of a person, such as name, date of birth, physical description, fingerprints, photographs, dates of arrests, arresting agencies and booking numbers, charges, dispositions, sentencing information, and similar data about the person.”  Penal Code §11105(a)(2)(A). 

Any person can obtain a copy of their criminal history record compiled under Penal Code section 11105(a)(1) and refute any erroneous or inaccurate information contained therein.  Penal Code §§ 11120, 11121.  The procedure for submitting an application for the person’s record is detailed in Penal Code sections 11122 through 11124.

Penal Code section 11126 sets forth the process for an applicant to question and correct the accuracy or completeness of any material matter contained in their criminal history record.  “If the applicant desires to question the accuracy or completeness of any material matter contained in the record, he or she may submit a written request to the department in a form established by it” (form BCIA 8706).  Penal Code §11126(a).  The applicant’s written request must include a statement of the alleged inaccuracy, its materiality, and any proof or corroboration available.  Penal Code §11126(a). 

Upon receipt of the applicant’s request, the DOJ shall compare its record to “the source document” to determine if the criminal history accurately reflects the source document.  Penal Code §11126(a).  If it does not, DOJ shall make any necessary corrections and provide the applicant with a corrected copy of the criminal history.  Ibid.  If the accuracy of the source document is questioned, DOJ shall forward it to the agency that furnished the questioned information.  Ibid.  The agency shall, within 30 days, review its information and forward the results to DOJ.  Ibid.  

If the agency agrees that there is a material inaccuracy, then the agency and DOJ are required to notify other persons or agencies to which they have disseminated the incorrect record in the past 90 days about the applicant’s corrected record.  Penal Code §11126(b).

If DOJ or the agency denies the allegations of inaccuracy or incompleteness in the applicant’s record, the matter “shall be referred for administrative adjudication in accordance with Chapter 5 (commencing with Section 11500) of Part 1, Division 3, Title 2 of the Government Code for a determination of whether material inaccuracy or incompleteness exists in the record”.  Penal Code §11126(c).  DOJ shall be the respondent at the hearing.  Ibid.  If a material inaccuracy or incompleteness is found, then the reporting obligations mentioned above are triggered.  Ibid. 

Judicial review of the administrative adjudication shall be governed by Government Code section 11523, which allows for the “filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure.” 

D. Statement of Facts

On November 22, 1995, after she successfully completed her five-year sentence of probation, Greene’s attorney filed a motion to expunge the record of conviction she suffered in 1989.  Greene Decl., ¶3.  The motion sought an order permitting her to withdraw her guilty plea to a felony charge, plead guilty to the misdemeanor charge of grand theft, and then the misdemeanor charge would be dismissed. Greene Decl., ¶3.  Further, the motion sought an order dismissing and expunging the conviction of grand theft from her criminal record history.  Greene Decl., ¶3.

The motion was granted by the court, and the order was directed to be given to DOJ, which required it to amend, modify and clear Greene’s criminal history of the felony conviction.  Greene Decl., ¶4.  Notwithstanding the passage of time, DOJ has failed to comply with the order to change Greene’s record. Greene Decl., ¶4.

In early July 2023, Greene applied for a permit to purchase a firearm.  Because of the nature of her employment, she tends to carry quite a bit of cash.  She believed that carrying a firearm would not only be a deterrent to assailants and robbery. Greene Decl., ¶5.

During the permitting and purchase process, a routine background check by the firearm dealer disclosed that Greene has a felony conviction on her criminal history record that makes her ineligible to purchase a firearm.  Greene Decl., ¶6.

On or about July 31, 2023, Greene contacted DOJ to inform it of the error and to request that the record be amended to delete the expunged felony conviction.  Greene Decl., ¶8.  Her requests, which commenced in late July and continue to date, have fallen on deaf ears.  Greene Decl., ¶8.  Although she sent DOJ no less than a dozen emails, copies of certified court records, and the judgment, it has not made the necessary correction and seems to be in no hurry to perform its duties as mandated by the court’s order.  Greene Decl., ¶8.  Rather, DOJ has consigned her requests to the dusty shelves of bureaucratic apathy.  Greene Decl., ¶9.

Greene has suffered irreparable harm since she is unable to enjoy the rights all citizens who have no felony record, including the eligibility to purchase a firearm.  Greene Decl., ¶10.

E. Analysis

Petitioner Greene seeks a writ of traditional mandate compelling DOJ to correct her criminal history record by deleting any reference to a felony conviction. 

1. Procedural Failure

On February 29, 2024, the court set trial for July 11, 2024.  Petitioner Greene’s counsel was ordered to prepare a trial notebook and memory stick and lodge them no later than June 29, 2024.  The parties were directed to stipulate to their briefing schedule.  The court subsequently sua sponte continued the trial to the instant date with the other dates remaining as previously scheduled.  

Greene filed her opening brief on May 28, 2024 and DOJ filed its opposition on June 24, 2024.  No trial notebook or memory stick has been lodged by Greene’s counsel in compliance with the court’s order.  The court could deny Greene’s Petition for this reason, but it has exercised its discretion not to do so.

2. Failure to Exhaust

DOJ contends that Petitioner Greene failed to exhaust her administrative remedies.

A writ of mandate will only issue when the petitioner has no plain, speedy, or adequate remedy at law. CCP §1086.  As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies.  See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554.  Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures.  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.

The administrative exhaustion requirement applies to traditional mandamus actions brought under Civil Procedure Code section 1085.   Lopez v. Civil Service Com., (1991) 232 Cal.App.3d 307, 314-315.) “When seeking relief under traditional mandamus, the exhaustion requirement speaks to whether there exists an adequate legal remedy.  If an administrative remedy is available and has not yet been exhausted, an adequate remedy exists and the petitioner is not entitled to extraordinary relief.”  FlightSafety Intern., Inc. v. Los Angeles County Assessment Appeals Bd., (“Flight Safety”) (2023) 96 Cal.App.5th 712, 718.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.”  Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293.  The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary.  Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th 377, 391.

DOJ points out that Greene has failed to exhaust her administrative remedies.  “If the applicant desires to question the accuracy or completeness of any material matter contained in the record, he or she may submit a written request to the department in a form established by it” (form BCIA 8706).  Penal Code §11126(a).  The applicant’s written request must include a statement of the alleged inaccuracy, its materiality, and any proof or corroboration available.   Penal Code §11126(a). 

If DOJ or the agency that generated the source document denies the allegations of inaccuracy or incompleteness in the applicant’s record, then the matter “shall be referred for administrative adjudication in accordance with Chapter 5 (commencing with Section 11500) of Part 1, Division 3, Title 2 of the Government Code for a determination of whether material inaccuracy or incompleteness exists in the record”.  Penal Code §11126(c). 

Greene has not shown that she has taken the first step of completing and submitting form BCIA 8706, or specifying exactly what is supposedly inaccurate about her criminal history record as that form requires.  As Greene has not shown that she has taken the first step, she also has not fulfilled the second step of an administrative hearing.

In short, Penal Code section 11126 establishes the statutory procedure to address Greene’s claim of a dispute over the accuracy of her criminal history record.  Greene failed to exhaust this remedy, despite being informed of the process in her communications with DOJ.  See Pet., Exs. B-6–B-8.  Her failure to comply with Penal Code section 11126 is a non-discretionary jurisdictional defect warranting dismissal.  FlightSafety, supra, 96 Cal.App.5th at 718.[1]

3. Merits

DOJ also is correct that Greene’s claim fails on its merits.  Green argues that she was charged and convicted of insurance fraud in December 1989 and sentenced to five years of probation.  On November 22, 1995, having successfully completed her five-year sentence of probation, Greene’s attorney filed a motion to expunge the record of conviction she suffered in 1989.  Greene Decl., ¶3.  The motion sought an order permitting her to withdraw her guilty plea to a felony charge, plead guilty to the misdemeanor charge of grand theft, and then the misdemeanor charge would be dismissed.  Greene Decl., ¶3.  The motion further sought an order dismissing and expunging the conviction of grand theft from her criminal record history.  Greene Decl., ¶3.  The motion was granted, and the court issued an order directed to DOJ requiring it to amend, modify and clear Greene’s criminal history of the felony conviction pursuant to Penal Code sections 11117 and 13151.  Greene Decl., ¶4; Pet. Op. Br. at 3, Ex. A. 

In early July 2023, Greene applied for a permit to purchase a firearm.  Greene Decl., ¶5.  During the permitting and purchase process, a routine background check by the firearm dealer disclosed that Greene has a felony conviction on her criminal history record that made her ineligible to purchase the firearm. Greene Decl., ¶6.  

On or about July 31, 2023, Greene contacted DOJ to inform it of the error and to request that the record be amended to delete the expunged felony conviction.  Greene Decl., ¶8.  DOJ directed her to verify and validate the record by submitting to a Live-Scan fingerprinting screening. When the Live-Scan screening confirmed her as the person with the felony conviction, she sought to  have the record corrected.  Although she sent DOJ no less than a dozen emails, copies of certified court records, and the judgment, it has not made the necessary correction and seems to be in no hurry to perform its duties as mandated by the court’s order.  Greene Decl., ¶8.  Pet. Op. Br. at 4.

There are two problems with Greene’s argument.  First, she has not supplied the court with a copy of her criminal history.  She assumes that her criminal history shows a felony insurance fraud conviction preventing her from purchasing a firearm, but the court cannot make that assumption.  DOJ cannot be directed to correct a criminal history without evidence about what that criminal history is. 

As DOJ argues (Opp. at 14-15), Greene does not show that the firearms denial was based on any specific felony conviction and the court cannot assume she had only a single conviction.  The 1995 judgment is for Case A 392605.  Pet., Ex. A-1.  The December 21, 1989 minute order is for Case A 759621.  Pet. Ex. A-2.  Hence, Greene may have had more than one criminal case.  Moreover, no box is checked on the December 1989 minute order, and the court cannot tell what the order was.

Second, the Penal Code section 1203.4 dismissal does not restore firearms rights.  “Generally speaking, section 1203.4 ‘is the only postconviction relief from the consequences of a valid criminal conviction available to a defendant’ who was convicted of a felony and successfully completed probation.” People v. Barraza, (1994) 30 Cal.App.4th 114, 120-21.  Although “a number of courts have used forms of the word ‘expunge’ to describe the relief made available by section 1203.4, the statute does not in fact produce such a dramatic result.”  People v. Frawley, (2000) 82 Cal.App.4th 784, 790-91.  Section 1203.4 does not expunge the conviction and make it a legal nullity.  Instead, it provides that, except as elsewhere stated, the defendant is ‘released from all penalties and disabilities resulting from the offense.’  The limitations on this relief are numerous and substantial….”  Id. at 791.  One limitation is that “[d]ismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction under [the statute prohibiting possession of firearms by felons].”  Penal Code §1203.4(a)(2).  Thus, a Penal Code section 1203.4 dismissal alone would not entitle Greene to purchase and possess a firearm.

Of course, the November 22, 1995 judgment did not simply grant Greene a dismissal under Penal Code section 1203.4.  It also withdrew Greene’s guilty plea to insurance fraud, vacated her felony conviction, permitted her to plead guilty to grand theft in violation of Penal Code section 487, and reduced the grand theft conviction to a misdemeanor.  Pet., Ex. A-1.  This fact may entitle Greene to have a criminal history reflecting only a misdemeanor that was dismissed under Penal Code section 1203.4 and may enable her to purchase a firearm.  Greene does not address this issue and the court need not do so either.

E. Conclusion

The petition for writ of mandate is denied.  DOJ’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Greene’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for September 26, 2024 at 9:30 a.m.