Filed 10/3/17 P. v. Alvarez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA MOSES ALVAREZ,
Defendant and Appellant.
|
F073954
(Super. Ct. No. MF011093A)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Michael B. Lewis, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Paul A. Bernardino, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
Joshua Moses Alvarez appeals from a postjudgment order denying his Penal Code section 851.8, subdivision (c) motion to seal and destroy arrest records related to his plea. We appointed counsel, who subsequently filed a brief requesting we independently review the record for error.[1] (See People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende).) Alvarez filed his own supplemental letter brief asserting trial court error. After reviewing the record and considering both appellate counsel’s brief and Alvarez’s letter, we affirm the order.
BACKGROUND
On July 10, 2014, an information was filed alleging in count 1 that, on or about March 14, 2014, Alvarez possessed a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and in count 2, that he received stolen property (Pen. Code, § 496, subd. (a))[2].
On February 3, 2015, Alvarez entered into a negotiated plea of no contest to count 1. On the People’s motion, the trial court dismissed count 2. Alvarez was placed on deferred entry of judgment for six months, and the case was to be dismissed provided Alvarez had no further misdemeanor or felony violations.
On August 4, 2015, the People affirmed Alvarez complied with all terms of his deferred entry of judgment. The trial court then granted the motion to withdraw the guilty plea, entered a not guilty plea as to count 1, and then dismissed count 1.
Approximately 10 months later on June 1, 2016, Alvarez, in pro. per., filed a motion under section 851.8 to seal and destroy his March 14, 2014, arrest records. The motion asserted Alvarez was factually innocent of the offenses for which he was arrested, supported by the claim that he had “a written confession that the other defendant was at fault and he knew nothing about what was given to [him].” No written confession was attached to the motion.
At the June 16, 2016, hearing on the motion, the People reiterated the facts of the case: that Alvarez’s vehicle was present during some burglaries at the storage units, as recorded by a surveillance camera; that at a subsequent traffic stop, the stolen items were located in Alvarez’s vehicle, which Alvarez claimed belonged to a friend and he did not know they were stolen; and that, at the time of the traffic stop, methamphetamine was also found in Alvarez’s pocket. The People asserted Alvarez had not met the burden of factual innocence or the burden that, based on the facts, there was no probable cause to make the arrest.
Alvarez presented to the court and the People a “confession” from his co-defendant stating Alvarez did not know about any of the criminal activity. According to Alvarez, “All I did was picked him up and then come to find out when I got pulled over the items were stolen and [the methamphetamine] was camouflaged into – it was wrapped up in a dollar bill which he gave me money for gas. So I couldn’t tell what was in the dollar bill until the officer pulled it out of my pocket.” Alvarez did not dispute the facts of the case, namely that it was his car at the storage unit in which the items were found, and that methamphetamine was found in his pocket.
The trial court stated it would look at the confession letter, which it did, and had the district attorney look at it as well. The deputy district attorney objected to the letter, stating it was not authenticated and not dated. The trial court noted that the issue of evidence “in these kind of hearings is pretty fluid so the objection is noted but I’m going to consider the letter .…” The letter was not entered into evidence, although the trial court stated it would like to make a copy of the letter “so we have it in our file for the record so it’s clear what I considered in this matter.”[3]
The trial court denied the motion, stating:
“The burden as I understand that you have from my reading of this section and handling these cases over the years is that you have to convince the Court that you are factually innocent, not that you didn’t or probably didn’t do it but that you simply are [not] the person who committed the crime. That often is a very difficult burden, probably a common scenario would be someone who is picked out of a lineup and later comes [to] find out after further investigation that it wasn’t them at all. It was just someone who looked like the defendant.
“In this case, you were present when the activity occurred. You were in direct possession of a controlled substance. You have an explanation of why you were in possession of that controlled substance but I am not persuaded by your explanation or the letter of the codefendant that you were factually innocent in this offense.”
DISCUSSION
Alvarez appealed and, upon his request, this court appointed counsel to represent him. Counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d at pages 441-442. We offered Alvarez an opportunity to file a personal supplemental brief. Alvarez filed a letter on his own behalf asserting evidence “that could assist in the appeal to motion to seal and destroy” his arrest record. According to Alvarez, he took the plea because he felt he was backed into a corner; that he was told by his public defender his arrest record would be destroyed; and he was told by the trial court that, if he took the plea and was not involved in any illegal activity for six months after the plea, “my record would not be able for the public to see.” As summarized by Alvarez, “[T]he main reason I took the plea was because the court had told me that if I did, I would not have no record what so ever.”
Section 851.8, subdivision (c), provides, in pertinent part, that
“n any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.”
If the court makes such a finding, the court shall order the appropriate law enforcement agency to seal the arrest records for three years from the date of the arrest and, thereafter, destroy such records. (§ 851.8, subds. (b), (c).)
As a preliminary matter, we find Alvarez was not entitled to seek relief pursuant to section 851.8. “Section 851.8 allows specified classes of individuals to petition the court for a finding of factual innocence and the sealing and subsequent destruction of arrest records. Those classes are: (1) persons who have been arrested but no accusatory pleading has yet been filed (§ 851.8, subd. (a)); (2) persons who have been arrested and an accusatory pleading has been filed but no conviction has occurred (§ 851.8, subds. (c), (d))]; and (3) persons who are ‘acquitted of a charge and it appears to the judge presiding at the trial … that the defendant was factually innocent’ (§ 851.8, subd. (e)).” ([i]Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1171, fn. 4; see also People v. McCann (2006) 141 Cal.App.4th 347, 355, [defendant had a right to seek relief pursuant to section 851.8 when conviction was reversed on appeal for insufficiency of the evidence, finding it the functional equivalent of an acquittal].) Alvarez pled no contest to the charges. (§ 1016, subd. (3) [no contest plea has the same legal effect in a criminal case as a plea of guilty].) As such, he does not fall within any of these classifications.
In any event, we also agree with the trial court that Alvarez was not factually innocent of the charges against him. “In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made.” (§ 851.8, subd. (b); see also People v. Laiwala (2006) 143 Cal.App.4th 1065, 1068.) “The present tense ‘exists’ necessarily means that the existence of reasonable cause depends on the current evidence rather than simply the evidence that existed at the time that the arrest and prosecution occurred. ‘In the context of a defendant who seeks a finding of factual innocence notwithstanding probable cause to arrest, facts subsequently disclosed may establish the defendant’s innocence.’ ([Adair, supra,] 29 Cal.4th 895, 905, fn. 4.)” (Laiwala, supra, at p. 1068, fn. 3.)
When reviewing a lower court’s ruling concerning a petition for sealing and destroying arrest records, an appellate court “must apply an independent standard of review and consider the record de novo.” (Adair, supra, 29 Cal.4th at p. 905.) “[T]he appellate court should defer to the trial court’s factual findings to the extent they are supported by substantial evidence, [but] it must independently examine the record to determine whether the defendant has established ‘that no reasonable cause exists to believe’ he or she committed the offense charged.” (Id. at p. 897.) “‘“‘Reasonable cause’”’ is a well-established legal standard, ‘“defined as that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”’ [Citations.]” (Id. at p. 905.)
This means defendant must establish “‘as a prima facie matter not necessarily just that the [defendant] had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place.’ [Citation.]” (Adair, supra, 29 Cal.4th at p. 905, fn. omitted.) “[T]he record must exonerate [the defendant], not merely raise a substantial question as to guilt.” (Id. at p. 909.) “‘Section 851.8 is for the benefit of those defendants who have not committed a crime. It permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law—because no objective factors justified official action – to purge the official records of any reference to such action....’” (Id. at p. 905.)
Here, Alvarez is not factually innocent of the charges against him. On the contrary, Alvarez admitted that he was in possession of the goods that were found to be stolen and that he had methamphetamine in his pocket. He has not sustained his burden of proving that he was factually innocent, i.e., that “no reasonable cause exists to believe that the arrestee committed the offense for which arrest was made.” (§ 851.8, subd. (b).) Even from the current temporal perspective, with all the benefit of hindsight, we cannot say that an officer would not have reasonable cause to arrest him. Nor could we say, in retrospect, that Alvarez should not have been subjected to the “‘compulsion of the criminal law – because no objective factors justified official action.’” (Adair, supra, 29 Cal.4th at p. 905.) Here, every objective factor would support reasonable cause to arrest and compel Alvarez to face criminal process. While Alvarez claims he was innocent of the charges, that does not equate with factual innocence of the acts underlying the charges against him.
In addition to considering the issue as identified by Alvarez in his letter, we independently reviewed the record for error as appellate counsel requested. Our review did not reveal any reasonably arguable appellate issues. (People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The order is affirmed.
* Before Franson, Acting P.J., Peña, J. and Meehan, J.
[1] Prior to filing his opening brief, appointed counsel asked this court for clarification on whether the Penal Code section 851.8 order Alvarez appealed from was appealable. We issued an order stating the denial of a motion pursuant to Penal Code section 851.8 is expressly appealable (Pen. Code, § 851.8, subd. (p); see People v. Adair (2003) 29 Cal.4th 895 (Adair)), but we ordered the parties to address the issue of whether Alvarez was entitled to appointment of counsel on appeal. It appears, as argued by respondent, that appellant was not so entitled. (People v. Scott M. (1985) 167 Cal.App.3d 688, 702, disapproved on other grounds in People v. Adair, supra, at p. 906.) However, as we appointed counsel for Alvarez and he completed briefing in this case, he will remain appointed counsel for the duration of this appeal.
[2] All further statutory references are to the Penal Code unless otherwise stated.
[3] Pursuant to appellate counsel’s August 11, 2016, motion to augment with the confession, the trial court clerk declared on September 12, 2016, that there was no confession filed in the case file on June 16, 2016. There is, however, a letter in the Clerk’s Transcript from Joshua S., Alvarez’s co-defendant, following Alvarez’s request for a certificate of probable cause, which appears to be a statement from co-defendant accepting responsibility for the events causing Alvarez’s arrest.
