Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jennifer A. Jadovitz and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
INTRODUCTION
Defendant was charged with first degree residential burglary (Pen. Code, § 459) and grand theft of a firearm (Pen. Code, § 487, subd. (d)(2)). The trial court granted the district attorney’s motion to dismiss the charges due to insufficient evidence. (Pen. Code, § 1385, subd. (a).) Defendant petitioned to have his arrest records in the matter sealed and destroyed. (Pen. Code, § 851.8, subd. (c).) The trial court denied defendant’s petition. Defendant contends the trial court erred by denying his petition because he is factually innocent. We affirm the order denying the destruction of defendant’s arrest records.
FACTS
On June 25, 2003, at approximately 3:30 p.m., Kimberly was outside her house when she saw two African-American men running through a field, carrying rifles and “large amounts of property in . . . sheets and pillowcases.” Kimberly observed a black car speed down the street. The two men entered the car with the property inside the sheets and pillowcases. Kimberly called 911 to report the incident and told the sheriff’s deputies that she would be able to identify the men. At a later interview, Kimberly stated she could see one man’s face clearly because he was wearing a knit cap above his eyebrows; however, she could not see the other man’s face because he was wearing a knit cap “almost touching his eyebrows.”
The victim arrived home to find sheriff’s deputies in front of his residence. Several items belonging to defendant were located in the field where Kimberly had seen the two men running. The victim told the deputies that he suspected a former employee, Glenn, might have burglarized his home.
On July 15, 2003, the victim informed Deputy Sanchez that he believed a different former employee, Joe, might have burglarized his home. The victim stated that he heard from a friend, Rudy, that Joe “was trying to sell some weapons that were stolen from [the victim’s] house.” Joe is Mexican-American, but has two African-American friends, and Joe’s wife drives a black car. The victim told Deputy Sanchez that Rudy would have a friend go to Joe’s home, in space 12 of the local mobile home park, to talk about the weapons Joe was trying to sell.
On July 16, 2003, the victim told Deputy Sanchez that Rudy’s friend spoke to Joe; however, Joe did not have any weapons for sale. The next day, the victim told Deputy Sanchez that one of Joe’s friends, who may have participated in the burglary, lived in space 217. The victim also informed the deputy that he had instructed Kimberly to go to space 217 and knock on the door, hoping she could identify one of the people who burglarized his house. Kimberly did as the victim instructed and she recognized the man in space 217 as one of the men she saw running through the field.
The manager of the mobile home park later identified defendant as the male resident of space 217. The manager also said that Joe lives in space 12. The manager believed that Joe and defendant were friends.
On July 27, 2003, Kimberly identified defendant from a photographic lineup as one of the men she saw running through the field.
On August 6, 2003, Deputy Sanchez executed a search warrant at space 217 for the purpose of finding property from the burglary of the victim’s home. Deputy Sanchez also executed an arrest warrant for defendant. Defendant was home when the deputies arrived with the warrants. Defendant waived his Miranda rights and denied burglarizing the victim’s residence. No stolen property was recovered from defendant’s home.
Miranda v. Arizona (1966) 384 U.S. 436.
Deputy Sanchez transported defendant to the Yucaipa sheriff’s interview room. The deputy asked if defendant could remember where he had been one and one-half months prior. Defendant responded that “he was probably home taking care of his small child”; however, if the burglary was this month then “he was working with Joe.”
On August 13, 2003, Deputy Sanchez went to the Yucaipa Community Center; it is unclear what prompted the deputy to visit the center. The deputy reviewed the basketball court sign-in sheet for June 25, 2003, which was the day of the burglary. The deputy also spoke with an employee who wrote both defendant’s name and his daughter’s name on the sign-in sheet on June 25, 2003. The employee stated that she recalled seeing defendant’s daughter at the center on June 25, 2003, but did not remember seeing defendant; however, the employee later stated that she did not recall seeing defendant and his daughter leave because “she does not remember seeing them other than when they first came in and she signed them in.” (Italics added.)
Defendant’s 13-year-old daughter told Deputy Sanchez that she remembered going to the community center with her father on June 25, 2003. Defendant’s daughter said she did not see her dad leave the center while she was there. Defendant’s daughter remembered that after leaving the community center she, defendant, and her stepsister went to a restaurant to eat.
After describing the nature of the finding required for factual innocence, the trial court gave its reasons for denying defendant’s petition: “And I think that’s where the Court has the biggest problem. It seems there was this witness, an independent witness Kim . . . who saw the suspects carrying items running from the home. She heard a gunshot. She watched the individuals. In a later interview, she described the extent to which she could see them. It sounds like she had an opportunity to see them, at least for a brief period of time. [¶] Sure, the ID might be tainted somewhat by the unusual way that she was directed to the defendant’s house. I note that [Penal Code section] 851.8 even envisions the Court reviewing suppressed evidence or otherwise inadmissible evidence in making the determination; so I think the Court is entitled to consider that; at the same time take into consideration the potential taint involved by that procedure that she may be actually identifying the person she saw at the house rather than the person she saw committing the burglary, but the fact that she saw them two times, and there was a period of time before the initial ID [and] the photo lineup, she seemed to be fairly certain in the identification and the information presented. [¶] At the same time, the alibi evidence while certainly suggestive of reasonable doubt, I’m not sure that it negates the other evidence of the potential crime such that I could find there’s no reasonable person—or no person of ordinary care and prudence [that] would conscientiously entertain a suspicion of guilt. I do note that among the documents submitted was a search warrant. A previous judge reviewed those facts that were described here today and found there was probable cause to search [defendant’s] residence based on the information that was presented; so I think—I just kind of cite that as a side, rather than—I’m not relying on that issue specifically, but it does appear that based on the positive identification by the witness from the photo lineup and from the, I guess, in-field—self-created in-field lineup that she conducted earlier than that, I do find that there was at least some reasonable basis on which to base the arrest, and I cannot find that the burden under [Penal Code section] 851.8 has been met; so the motion is denied.”
DISCUSSION
Defendant contends the trial court erred by denying his petition to seal and destroy his arrest records (Pen. Code, § 851.8, subd. (c)) because he is factually innocent. We disagree.
Penal Code section 851.8, subdivision (c), provides that “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 which dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.” “If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall” order the presiding law enforcement agency and court to seal and destroy their records of the arrest. (Pen. Code, § 851.8, subds. (b) & (c).)
At a hearing concerning a petition to seal and destroy arrest records, the trial court may consider “declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant and reliable,” without the evidentiary limitations of Penal Code sections 1538.5 or 1539, concerning improperly obtained evidence. The defendant bears the initial burden to prove that “no reasonable cause exists to believe” he committed the crimes with which he is charged. If the defendant meets his burden, then the burden of proof shifts to the district attorney to prove that reasonable cause existed to believe that the defendant committed the charged offenses. (Pen. Code, § 851.8, subd. (b); see also People v. Laiwala (2006) 143 Cal.App.4th 1065, 1068.)
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.” (People v. Adair (2003) 29 Cal.4th 895, 905.) To be found factually innocent, a petitioner must prove that “no reasonable cause exists to believe that [he] committed the offense for which the arrest was made.” (Pen. Code, § 851.8, subd. (b).) “‘“‘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.]” (People v. Adair, supra, 29 Cal.4th at p. 904.) 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.’” (Id. at p. 905.)
Defendant has failed to meet his burden. Kimberly, an independent witness, twice identified defendant as one of the men she saw running through the field—once at defendant’s home and once as part of a photographic lineup. While not conducted by police, Kimberly’s identification of defendant at his home was similar to an in-field identification. (See People v. Cowger (1988) 202 Cal.App.3d 1066, 1071 [“A single-person showup is not necessarily unfair”].) There is nothing in the record to suggest that Kimberly’s identification of defendant was unreliable because if Kimberly did not recognize defendant at his house or in the photographic lineup, she could have said that she was unable make a positive identification.
In addition, the victim told Deputy Sanchez that he suspected Joe might have planned the burglary. Defendant told Deputy Sanchez that he worked with Joe. The manager of the mobile home park believed Joe and defendant were friends. Defendant’s relationship with Joe, combined with Kimberly’s two separate identifications of defendant, would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that defendant is guilty of burglarizing the victim’s home.
Defendant argues that the victim orchestrated Kimberly’s identification of defendant and that eyewitness identifications are not particularly compelling evidence. Defendant raises strong arguments for reasonable doubt; however, he fails to prove that no reasonable cause exists to believe that he committed the offenses for which the arrest was made, because there is reason to believe that Kimberly’s identifications of defendant were accurate and reliable.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.