Convicted of a Felony, But Not a Convicted Felon

July 5, 2006
Convicted of a Felony, But Not a Convicted Felon
Voice of San Diego

You'll remember my question about the little present former Port Commissioner David Malcolm received last week from Superior Court Judge John C. Einhorn. In 2003, Malcolm pleaded guilty to violating the state's law against public officials participating in deals in which they have a personal financial interest. He was sentenced to three years probation and he had some fines and other economic penalties.

Like many people who finish their probation time, Malcolm asked the judge to expunge his record. Einhorn agreed and gave Malcolm one more little benefit - he ordered Malcolm's charge to be lowered from a felony to a misdemeanor and then expunged.

I wondered what the deal was. Did this mean that, like Britney Spears' first marriage, Malcolm's conviction was successfully annulled? Does it mean that Malcolm is no longer a convicted felon?

I called the district attorney's prosecutor in the case, Stephen Robinson. He said, essentially, that no, Malcolm is no longer a convicted felon, but he was still convicted of a felony.

My brain exploded after we talked but let me try to put this puzzle together:

Malcolm's recent pardon allows him to have the benefits and privileges that we non-felon citizens enjoy: to vote, to run for office, etc. But Robinson said that certain benefits won't be available to Malcolm. For instance, he can't carry a firearm.

"If, four years from now, I was going to run his criminal record sheet - his rap sheet - it will be there. It doesn't disappear," Robinson said about the criminal conviction. He said that if he was investigating Malcolm again, he could use the "rap sheet" to argue that Malcolm has a history doing such and such.

Now, apparently, it's a normal thing for someone to complete his or her probation and to ask the judge to expunge the record as such. If it's not normal, let me know.

But what's really interesting is the second part of this deal: that Malcolm had his charge reduced to a misdemeanor before it was expunged.

I asked Robinson if Malcolm could now argue that he was never convicted a felony, but, instead he was convicted of a misdemeanor.

"I suppose he can say that. I just look at it from my perspective, which is from the criminal-justice perspective. The conviction still stands," Robinson told me.

My brain just exploded again thinking about it.

Robinson, for the record, had argued strongly against the judge allowing Malcolm's charge to go from a felony to a misdemeanor.

His reasoning seems pretty logical: While a port commissioner, Malcolm agreed to become a paid consultant to Duke Energy and he agreed to put the interests of Duke Energy above those of the Port District.

From the DA:

While actively participating in Port District business that directly benefited Duke Energy, Malcolm was being paid $20,000 each month.

So, it wasn't as if he were urinating in public or committing another such misdemeanor violation. This is a heavy accusation to which Malcolm pleaded guilty.

Again from Robinson's brief:

While occupying this position of trust, he betrayed the people of San Diego for his own pecuniary gain. Malcolm's behavior cannot be described as one or two mistakes. It similarly was not a series of errors that took place over a short period of time or in haste. Rather, Malcolm deliberately and methodically engaged in a course of conduct that put the interests of the people of San Diego second to his own financial interests.

Again, it doesn't appear to be a misdemeanor offense.

I called the judge, who referred me to Malcolm's own court filings. When I get them, I'll share them. We still, after all, are left with important questions: If it's true, as Robinson said, that Malcolm's conviction will always haunt him as a felony, then why would Malcolm want it to be reduced to a misdemeanor before it was expunged? What's the point?

"I'd have to ask him what motivated him to take that two-step process," Robinson said.

- SCOTT LEWIS