People v. Dwyer

Opinion

GATES, J. From the uncontested, but limited record before us,1 it appears that on November 22, 1970, when respondent Walter Dwyer was eighteen years of age, he was accused in the present proceeding (Los Angeles Superior Court case No. A509798) with having committed a residential nighttime burglary. Approximately two weeks later he was again arrested and charged in a Riverside County action in three counts with possessing dangerous drugs, marijuana, and alcohol. On January 1, 1971, respondent in some fashion was convicted of these latter offenses and granted probation upon certain terms and conditions which included a period in jail and the payment of a specified fine.

[177]On April 23, 1971, apparently as the result of a negotiated disposition, a second count alleging receipt of stolen property was added to the burglary charged in the present action and respondent pled guilty thereto. Here, too, proceedings were suspended and he was placed on probation. Again a term in the county jail was a condition thereof. Respondent seems to have successfully completed this probation2 for his conviction was set aside on April 15,1974,3 in accordance with the provisions of Penal Code section 1203.4.

On August 8, 1979, respondent made application for a real estate license. Whether in connection therewith or not, the record before us reveals that on October 2, 1979, respondent’s three convictions in the Riverside action were also set aside under Penal Code section 1203.4 upon an application therefor prepared by his attorney David J. Philipson.4 In addition, and on that same date, a petition to seal respondent’s records under Penal Code section 1203.45 was filed in the present proceeding. Supporting this request was a declaration executed by his attorney David J. Philipson on July 12, 1979, under penalty of perjury averring that to the best of counsel’s information and Relief, respondent had never “been convicted of any criminal offense, excluding misdemeanor traffic violations, other than that charge[d here].”5 (Italics added.) Presumably, since these matters are traditionally handled ex parte, the falsity of this factual averment was not detected and the petition was granted the same day it was filed.

On October 2, 1981, the manager of the Record Control Program operated by the California Department of Justice’s Bureau of Criminal Identification communicated with the trial court to advise that on the basis of the documents lodged with it, respondent did not appear to be eligible for relief under Penal Code section 1203.45, since (1) his present conviction still technically stood as a felony (but see footnote 3), and (2) he had sustained more than one conviction.