People v. McCloud

Opinion

ALLPORT, J.

In a petition filed February 5, 1975, Richard Milton McCloud sought and obtained an order from the superior court sealing all records pertaining to his conviction on June 4, 1962, of forgery (Pen. Code, § 470). The order was dated February 4, 1975, and made pursuant to Penal Code section 1203.45.

1

In that verified petition it was alleged in paragraph VI “[t]hat petitioner has not been convicted of any crime, except the conviction on June 4, 1962, with the exception that petitioner has had traffic infractions.”

[176]

On June 28, 1976, the People filed a motion to vacate the order sealing McCloud’s records on the ground that the original order was void because McCloud was in fact ineligible for sealing in that on July 9, 1969, he had suffered a misdemeanor conviction for battery (Pen. Code, § 242), which was not disclosed in his petition to have the records sealed.

2

On August 12, 1976, the People’s motion was granted and the sealing order vacated upon the ground that the battery conviction of July 9, 1969, barred relief under section 1203.45, subdivision (d). In so ruling the court below stressed the fact that McCloud told a “complete untruth” when he alleged under penalty of perjury on January 24, 1975, that he had not been convicted of any crime except the one of June 4, 1962, when in fact he had been convicted of battery on July 9, 1969.

Defendant appeals from the order vacating the sealing of the records. The appeal lies. (Pen. Code, § 1237, subd. 2.)

Issue

We perceive the issue on appeal to be, as stated by defendant at page 19 of the opening brief, wherein it is said: “the real question posed by this case is whether a subsequent conviction occurring during the interim between the time a person becomes eligible to petition for relief under section 1203.45 and actually files his papers, as a matter of law precludes exercise of the discretion [trial court’s] favorably to the defendant.” We conclude that it does and for that reason will affirm.