The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In People v. Gregor, decided on Aug. 12 by the California Court of Appeal (Justice Elena Duarte joined by Justices Jonathan Renner and Peter Krause), the defendant, a naturalized citizen, "pleaded guilty to a felony sex offense that was later reduced to a misdemeanor and dismissed after early termination of probation":
In April 2011, pursuant to a plea agreement, defendant pleaded guilty to felony contacting a minor with the intent to commit a sexual offense (§ 288.4, subd. (b); count 2), and no contest to misdemeanor contact with a minor with the intent to commit a sex offense (§ 288.4, subd. (a)(1); count 3). Sentencing was delayed for one year. If defendant successfully completed a sexual integrity program, count 2 was to be dismissed.
This restricted his ability to sponsor family members for visas, which led him to ask to have his guilty plea withdrawn altogether:
After he was informed he was not able to sponsor his father for a family visa due to this conviction, defendant filed the instant motion pursuant to Penal Code section 1473.7 and sought to withdraw his plea claiming he was unable to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of his conviction. The trial court denied the motion; defendant appealed.
I skip here that substantive question, a matter I haven't at all studied, and focus on the pseudonymization question:
We first explain why we deny defendant's request to refer to him by his initials in this opinion. Defendant bases his argument on California Rules of Court, rule 8.90(b)(10) and (11). Rule 8.90(b)(10) is a "catch-all" provision that allows the court to use first name or initials "in other circumstances in which personal privacy interests support not using the person's name." Rule 8.90(b)(11) provides for the use of initials of "[p]ersons in other circumstances in which use of that person's full name would defeat the objective of anonymity for a person identified in (1)-(10)."
We are aware of no authority applying rule 8.90(b)(10) and (11) to criminal defendants except in the narrow circumstance—not applicable here—in which the sole purpose of the appeal is to attempt to vindicate a statutory privacy right. (See, e.g., People v. D.C. (Cal. App. 2020); People v. E.B. (Cal. App. 2020).) Additionally, while defendant argues that he may eventually be able to request that the trial court seal his criminal records in the event that he is successfully able to vacate his plea and his case is referred to and resolved in veteran's court, that argument is entirely speculative.
Although we appreciate defendant's situation and corresponding request, his position in this appeal is that of a criminal defendant seeking relief from the denial of his motion to withdraw a guilty plea. We therefore deny his request for redaction.
Note that the question wasn't whether the defendant's name would be entirely inaccessible from the court file (the general rule for true pseudonymity), only whether the defendant's name would be omitted from the court opinion and caption. Here is the full text of Rule 8.90(b), by the way:
Rule 8.90. Privacy in opinions …
To protect personal privacy interests, in all opinions, the reviewing court should consider referring to the following people by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only:
(1) Children in all proceedings under the Family Code and protected persons in domestic violence-prevention proceedings;
(2) Wards in guardianship proceedings and conservatees in conservatorship proceedings;
(3) Patients in mental health proceedings;
(4) Victims in criminal proceedings;
(5) Protected persons in civil harassment proceedings under Code of Civil Procedure section 527.6;
(6) Protected persons in workplace violence-prevention proceedings under Code of Civil Procedure section 527.8;
(7) Protected persons in private postsecondary school violence-prevention proceedings under Code of Civil Procedure section 527.85;
(8) Protected persons in elder or dependent adult abuse-prevention proceedings under Welfare and Institutions Code section 15657.03;
(9) Minors or persons with disabilities in proceedings to compromise the claims of a minor or a person with a disability;
(10) Persons in other circumstances in which personal privacy interests support not using the person's name; and
(11) Persons in other circumstances in which use of that person's full name would defeat the objective of anonymity for a person identified in (1)-(10).
Thanks to Ron Matthias for the pointer; congratulations to Daniel B. Bernstein and Stephanie A. Mitchell of the California A.G.'s office, who prevailed in the case.