Filed 8/11/22 P. v. Chaker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from postjudgment orders of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

Darren D. Chaker appeals from the trial court’s postjudgment orders denying his motions to seal records in the possession of local agencies and for factual innocence. We affirm the postjudgment orders.

FACTS

In April 2004, an information charged Chaker with possessing an assault weapon (Pen. Code, former § 12280, subd. (b),^[1] see now § 30605; count 1), and receiving stolen property (§ 496, subd. (a); count 2). At a bench trial two years later, the trial court found Chaker guilty of count 1 but granted his motion to dismiss count 2 (§ 1118). The court sentenced him to three years of formal probation.

In July 2007, Chaker filed a motion requesting early termination of his probation and expungement of his conviction. The next month, the trial court denied the motion without prejudice and stated it would reconsider the motion in one year.

In our nonpublished opinion, People v. Chaker (Feb. 4, 2008, G037362), we affirmed his conviction on count 1.^[2]

Months later, the trial court conducted a hearing on Chaker’s motions to reduce his conviction to a misdemeanor (§ 17, subd. (b)), expunge the conviction, and convert formal probation to informal probation. At the hearing, the prosecutor stated Chaker had an outstanding arrest warrant in Nevada and opposed the motions until it was resolved. Chaker requested time to resolve those matters. A couple months later, the court denied the motions because of the pending Nevada cases.

In January 2009, the court converted Chaker’s formal probation to informal probation for the remainder of the term. It again denied his motions for reduction and expungement because of the Nevada cases. Later that year, the court granted Chaker’s motion to reduce his conviction to a misdemeanor and ordered the conviction expunged. The court later noted the Nevada cases had been dismissed.

A couple months later, the court granted Chaker’s motion to seal certain documents in the court file that referenced the Nevada arrest. The next year, the court granted a motion to seal additional documents.

In July 2010, Chaker, in propria persona, filed a motion to seal and destroy records in the possession of the district attorney and the probation department regarding the Nevada cases pursuant to inter alia the full faith and credit clause. He relied on the fact a Nevada district court judge ordered records from his two cases be sealed. He included as exhibits a filed copy of the Nevada sealing order and a blank “Authorization and Release” form from the Committee of Bar Examiners of the State Bar of California. He also filed a supplemental motion. On July 23, 2010, the trial court denied his motion because there was no authority to grant the requested relief.

In August 2010, Chaker filed a motion for reconsideration. He also filed in propria persona a “Motion to Seal Records Pursuant to . . . § 851.8(e).” He attached to this motion three pages of reporter’s transcript from June 21, 2006, where the trial court granted his motion to dismiss count 2. County Counsel opposed the former, and the Orange County District Attorney opposed the latter. Chaker filed a consolidated reply.

At the hearing on these motions, the trial court stated Chaker provided it with no new authority and denied the reconsideration motion. When the court addressed Chaker’s “motion for finding of factual innocence and to seal records,” the prosecutor asserted it was a motion to seal records, not a request to find him factually innocent on count 2. Chaker replied it was a motion to find him factually innocent. The court ruled the request was untimely, it did not find Chaker factually innocent in 2006, and section 851.8 did not authorize the destruction of records. On November 23, 2010, Chaker filed a notice of appeal of the court’s rulings on July 23 and October 22, 2010.

In January 2012, this court issued an order limiting this appeal to only “the [trial] court’s ruling on July 23, 2010, and the [October 22, 2010,] denial of the motion to seal pursuant to . . . section 851.8, subdivision (e).” There were extensive communications between Chaker and this court that caused significant delays.

In February 2021, this court issued an order directing the trial court to make factual findings regarding whether 13 categories of records it had sealed were confidential or whether sealing was justified under California Rules of Court, rule 2.550(d)). The trial court issued a minute order stating the records were not confidential by law, and there were insufficient facts to warrant sealing under rule 2.550(d). The trial court ordered the previously sealed records be unsealed. Chaker did not appeal from the court’s unsealing order.

Chaker requested this court expand the scope of the appeal or grant him relief from default for his failure to timely file a notice of appeal from the trial court’s order unsealing records. We denied his application.^[3]

DISCUSSION

I. Full Faith & Credit

Chaker argues the trial court erred by failing to give full faith and credit to the Nevada sealing order. We disagree.

Article IV, section 1, of the United States Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This is supplemented by a provision in the Federal Judicial Code. (28 U.S.C. § 1738.)

“However, different credit is owed to statutes versus judgments under full faith and credit precedent.” (LGCY Power, LLC v. Superior Court (2022) 75 Cal.App.5th 844, 869.) As the Supreme Court of the United States long ago held, “[T]he full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that [latter] statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.” (Pacific Employers Ins. Co. v. Industrial Accident Comm’n. (1939) 306 U.S. 493, 502.)

Nevada Revised Statutes section 179.255 concerns sealing records after dismissal, decline of prosecution, or acquittal. It includes a provision authorizing a court to order sealed records in a criminal justice agency’s custody. (Nev. Rev. Stat. § 179.255, subd. (7)(b).)

California Rules of Court, rule 2.550 governs sealing trial court records. It does not include a provision a trial court may order records in a district attorney’s office or probation department’s sealed. (Cal. Rules of Court, rule 2.550(b)(1).) The full faith and credit clause did not require the trial court to substitute Nevada’s sealing statute for California’s rule for sealing records.

Section 851.8, California’s factual innocence statute, allows the prosecuting agency to request local agencies destroy arrest records. But this does not assist Chaker as we explain below. Chaker’s reliance on Farmers & Merchants Trust Co. v. Madeira (1968) 261 Cal.App.2d 503, 507, is misplaced because that appellant did not assert the Pennsylvania child support order was entitled to full faith and credit but instead as a matter of comity. Thus, the trial court did not err by denying Chaker’s request to give full faith and credit to the Nevada sealing order.

II. Section 851.8

Chaker contends the trial court erred by denying his motion for factual innocence. Not so.

Section 851.8 allows a person to petition the superior court for a finding of factual innocence in the following situations: “where a person has been arrested and no accusatory pleading has been filed” (§ 851.8, subd. (a)); “where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred” (§ 851.8, subds. (c) & (d)); and “[w]henever any person is acquitted of a charge and it appears to the judge presiding at the trial . . . that the defendant was factually innocent” (§ 851.8, subd. (e)). Chaker relied on section 851.8, subdivision (e).

Section 851.8, subdivision (l), provides a two-year limit on petitions for arrests and accusatory pleadings filed on or after January 1, 1981. However, section 851.8, subdivision (c), allows a petition to be filed “at any time after dismissal of the action. . . .” Courts have concluded the two-year limitation applies to all categories of persons seeking relief under section 851.8. (People v. Gerold (2009) 174 Cal.App.4th 781, 786; People v. Bermudez (2009) 172 Cal.App.4th 966, 972; People v. Bermudez (1989) 215 Cal.App.3d 1226, 1230, fn. 5.)

Chaker filed his petition over four years after the trial court granted his motion for acquittal. Therefore, his petition was untimely. Not only was it untimely, it was also deficient.

“The only requirements for obtaining relief are (1) that a defendant is acquitted after a trial, and (2) that it appears to the presiding judge that the defendant is factually innocent. [Citation.]” (People v. Fitzgerald (2017) 18 Cal.App.5th Supp. 1, 5.) Defendant has the “extremely high” burden of establishing “‘no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.’” (Id. at p. 6; § 851.8, subd. (b).) The petitioner has the initial burden of proof to demonstrate there was no reasonable cause, and if the petitioner satisfies this burden, the burden of proof shifts to the prosecution to establish there was reasonable cause. (§ 851.8, subd. (b).) The court may consider the evidence presented at trial, and “declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable.” (§ 851.8, subd. (b); People v. Medlin (2009) 178 Cal.App.4th 1092, 1101-1102 [we review determination of reasonable cause de novo but review trial court’s factual findings for substantial evidence].)

To support his claim he was factually innocent, Chaker relies entirely on the trial court’s 2006 comments when it granted his motion to dismiss count 2. With his section 851.8 motion, Chaker, in propria persona, included a few pages from the June 21, 2006, reporter’s transcript. But he offered no “declarations, affidavits, police reports, or any other evidence” to support his motion. (§ 851.8, subd. (b).) On the record before us, Chaker failed to satisfy his extremely high initial burden of establishing with evidence there was no reasonable cause to believe he committed count 2. His reliance on People v. Laiwala (2006) 143 Cal.App.4th 1065, 1071, where appellant offered evidence, is misplaced. Having failed to satisfy his burden, we reject this claim.

III. Unsealing Order

Chaker asserts the trial court erred by ordering unsealed records it had previously ordered sealed. The Attorney General replies Chaker cannot raise this issue because his notice of appeal is limited to the trial court’s July 23 and October 22, 2010, orders, and Chaker did not appeal from the trial court’s February 22, 2021, order unsealing the records. (In re J.F. (2019) 39 Cal.App.5th 70, 75 [no appellate jurisdiction over order not mentioned in notice of appeal]; In re Marriage of Nicholas (2010)

186 Cal.App.4th 1566, 1576 [sealing orders appealable].) In his reply, Chaker asserts, inter alia, his notice of appeal divested the trial court of jurisdiction to make its unsealing order. (People v. Berg (2019) 34 Cal.App.5th 856, 874, fn. 18 [general rule filing valid notice of appeal vests jurisdiction in appellate court].)

We need not resolve this procedural quagmire. Even if this issue was included in Chaker’s notice of appeal, he would lose. He has not carried his burden of demonstrating the trial court erred.

Chaker’s claim of error in the trial court’s unsealing of 13 categories of records was limited to a generalized assertion he was presumed innocent and had a constitutional right to a fair trial and he would be prejudiced if they were not sealed. This was too conclusory. A cardinal tenet of appellate review is that broad claims of error unsupported by an articulation of what the error was “are wholly inadequate to tender a basis for relief on appeal.” (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435; see In re S.C. (2006) 138 Cal.App.4th 396, 408 [“conclusory claims of error will fail”].) Chaker has not demonstrated the trial court erred by concluding each of the 13 categories of records were not confidential and there was insufficient evidence to warrant sealing them.

DISPOSITION

The postjudgment orders are affirmed.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1] All further statutory references are to the Penal Code.

^[2] Chaker has also filed numerous habeas corpus petitions, which we denied, and will not list here.

^[3] On July 8, 2022, this court received a letter from Chaker stating he has an unresolvable conflict with appointed appellate counsel from Appellate Defenders, Inc. (ADI), and requests this court accept no additional filings from counsel. We inquired with ADI to determine whether there was such a conflict. On July 19, 2022, ADI submitted a letter to this court indicating it determined no conflict exists between Chaker and his appointed counsel and it does not recommend substitution of counsel.