Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KA081918, Juan Carlos Dominguez, Judge. Affirmed.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Kenneth W. Penn, appeals following the denial of his Penal Code section 851.8, subdivision (c) motion to seal his arrest record in this case following his acquittal of the charge of sexual intercourse with an unconscious person. (§ 261, subd. (a)(4).) We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
The complaining witness met defendant at approximately 1 p.m. on January 28, 2008, when both were stopped in traffic in their respective cars. Defendant motioned to the complaining witness to roll down her window. Defendant asked the complaining witness for her name. After the complaining witness gave him her first name, defendant told her his name was Jason. Defendant asked the complaining witness if she wanted to “hang out.” The complaining witness declined the invitation, indicating that she was going to class later. Defendant asked for the complaining witness’s phone number. The complaining witness gave defendant her cellular telephone number. Defendant sent a text message to the complaining witness approximately five minutes later. The complaining witness sent a response that she had class but they could hang out later. Defendant said he would call her.
Defendant called the complaining witness at approximately 10 or 10:30 p.m. Defendant said he was at a nearby gas station. Defendant asked if the complaining witness wanted to “hang out.” The complaining witness said she was going to bed soon, but defendant could come over to her apartment and have a cigarette. The complaining witness did not think that inviting someone over meant she would have sex with them. Defendant came to the complaining witness’s apartment about one-half hour later. The complaining witness let defendant inside. Soon thereafter, the complaining witness offered defendant a shot of vodka. The complaining witness had one drink of vodka and juice before defendant arrived. The complaining witness and defendant smoked cigarettes outside the apartment while engaging in small talk. After returning to the apartment, the complaining witness and defendant sat on the couch. Defendant told the complaining witness: “You are poison. You are hot.” Defendant and the complaining witness began kissing. The complaining witness asked defendant if he wanted another drink. Defendant left to buy more vodka. The complaining witness wanted defendant to come back and enjoyed kissing him. The complaining witness wanted to fall asleep with defendant.
The complaining witness went into her bedroom to lie down. The complaining witness was wearing sweat pants and a sweatshirt. The complaining witness believed that they would probably start kissing again when defendant returned. Defendant returned in about one-half hour. Defendant walked into the bedroom, put down the alcohol and lay down on the bed with the complaining witness. The complaining witness and defendant began kissing again. Defendant’s hand was on the complaining witness’s buttocks. Defendant asked the complaining witness to put on something “sexier.” The complaining witness agreed because she wanted defendant to find her attractive. The complaining witness went to a place in her residence where defendant could not see her and put on some “boy” shorts. Thereafter, the complaining witness laid back down. The complaining witness and defendant began kissing again. The complaining witness still believed she was in control of the situation. The complaining witness told defendant that she had to go to sleep. The complaining witness told defendant that he could stay with her but “under no circumstances” would they have sex. Defendant agreed.
The complaining witness fell asleep but awakened at a later time. The complaining witness was on her stomach and defendant was thrusting “inside” her vagina. The complaining witness testified she “flipped out,” rolled over and told defendant to get out. Defendant said, “[B]ut you were wet.” Defendant told the complaining witness he would call her the following day. Defendant left the complaining witness’s apartment. The complaining witness, who felt like she “deserved” what had happened to her, did not call the police because she knew that rape cases were not easy. Also, she knew a rape trial is would include “one person’s word against” another. In the morning, the complaining witness called a friend. The friend advised the complaining witness to call a crisis line as well as the police. He also told the complaining witness not to shower.
The complaining witness went to the Claremont Police Department at approximately 8 a.m. on January 29, 2008. The complaining witness was uncertain whether she should “file a report” because she was afraid. The complaining witness believed defendant would call her a liar. The complaining witness went to a hospital with Officer Brian Thompson. A sexual assault exam was performed on the complaining witness. The complaining witness felt that she had been raped and feared possible diseases. A representative from the crisis hotline met the complaining witness at the hospital. After her examination, the complaining witness was taken back to the police department. Officer Thompson decided to have the complaining witness place a pretext telephone call to defendant which was recorded. The complaining witness believed that she could get defendant to acknowledge that she was asleep at the time he had sex with her. A tape recording of the telephone call was played for the jurors. They were also provided with a transcript of the tape recording.
During the conversation, the complaining witness told defendant “I uh right before we went to bed I said remember you had to be good and then I woke up and at least you could’ve woken me up so I could’ve enjoyed it.” Defendant said: “Oh is that right. [¶]... [¶] I thought you were awake. I thought you were just playing possum.” The complaining witness asked: “Yeah. Do you kind of dig that when a girl’s asleep or what man. You kinda wanted to wake me up like that or what.” Defendant responded, “Yeah you were awake.” When the complaining witness responded, “No.” Defendant said, “I thought you were going to turn over and wake up.” The complaining witness told defendant: “You thought I was going to turn over and wake up. There’s a difference.” Defendant said, “It’s all the same.” Later in the call, the complaining witness said: “I like to move slow. Remember how I said we’re not having sex.” Defendant responded, “Um hm.”
Defendant argues that the trial court improperly denied his section 851.8, subdivision (c) motion to seal and destroy his arrest record following his acquittal. Section 851.8, subdivision (c) provides in relevant part, “In 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 the 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.” On December 16, 2008, the trial court conducted a hearing on defendant’s section 851.8, subdivision (c) motion. The trial court noted that section 851.8 had been interpreted by the California Supreme Court to have a very high standard of proof regarding factual innocence. The trial court reasoned: “[W]hen you look at this language [of the statute]. No person. No person. There is not a person out there of ordinary prudence that would agree that there was any honest and strong suspicion that the person arrested is guilty of the crime charged. That is a tough one.” Following defense counsel’s further argument, the trial court stated: “[I]n listening to the evidence, I can see a reasonable person, a reasonable person, believing the complaining witness in this case. Believing that based on her body posture. She said she was laying flat on her stomach and he was approaching her from the rear. That she was face down on the bed. All of these things. There are those facts. And those are the facts that I took into consideration when I denied the 1118 motion. That a reasonable person can say, well, if she is lying flat on her back, she is not facing him, all of these things, a reasonable person could deduce from that - - from those facts, if true, that he knew she was asleep. Because there were those facts if you recall. She said she was turned over, she was face down on the bed, and the he was on top of her from behind.”
The trial court noted further: “Whether [defendant] knew [the complaining witness] had fallen asleep momentarily. I don’t think so. [¶] I really do not believe that this young man knew that she was asleep. Based on the totality of the circumstances. So I - - you know, I agree with the jury’s verdict in finding him not guilty. Now, I don’t know whether the jury had a reasonable doubt or just completely made the determination that he just didn’t know that she was asleep. But we are now - - what I am looking at - - when I look at these cases I think that the bar is raised substantially higher. [¶]... [¶] And when you look at this language. No person. No person. There is not a person out there of ordinary prudence that would agree that there was any honest and strong suspicion that the person arrested is guilty of the crime charged. That is a tough one.” The trial court also stated: “[T]he cases make it perfectly clear that it doesn’t matter that the jury acquitted [defendant]. It doesn’t matter.” The trial court took the matter under consideration and issued its ruling denying the motion later that day.
Section 851.8, subdivision (b) provides the framework for the trial court’s factual innocence determination: “A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. 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.”
In People v. Adair (2003) 29 Cal.4th 895, 904, our Supreme Court held that based on the very terms of section 851.8, subdivision (b), “[T]he trial court cannot grant relief if any reasonable cause warrants [] a belief [that defendant committed the offense charged].” (Original italics; see People v. Gerold (2009) 174 Cal.App.4th 781, 790.)
Our Supreme Court further explained: “‘“[F]actually innocent” as used in [section 851.8(b)] does not mean a lack of proof of guilt beyond a reasonable doubt or even by “a preponderance of evidence.” [Citation.]’ (People v. Glimps[ (1979)] 92 Cal.App.3d [315,] 322.) Defendants must ‘show that the state should never have subjected them to the compulsion of the criminal law—because no objective factors justified official action....’ (People v. Scott M.[ (1985)] 167 Cal.App.3d [688,] 700.) In sum, the record must exonerate, not merely raise a substantial question as to guilt. (Cf. § 851.8, subds. (f), (h).)” People v. Adair, supra, 29 Cal.4th at p. 909; People v. Gerold, supra, 174 Cal.App.4th at p. 791; People v. Chagoyan (2003) 107 Cal.App.4th 810, 817.) We apply the following standard of appellate review: “[T]he statutory scheme establishes an objective standard for assaying factual innocence. From this determination, it necessarily follows that a reviewing court must apply an independent standard of review and consider the record de novo in deciding whether it supports the trial court’s ruling.” (People v. Adair, supra, 29 Cal.4th at p. 905; see also People v. Gerold, supra, 174 Cal.App.4th at p. 790; People v. Laiwala (2006) 143 Cal.App.4th 1065, 1069.)
Section 261, subdivision (a) states in relevant part: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]... [¶] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: [¶] (A) Was unconscious or asleep.” (See People v. Babaali (2009) 171 Cal.App.4th 982, 995-996; People v. Dancy (2002) 102 Cal.App.4th 21, 36-37.) Defendant argues, as he did at trial and the section 851.8 motion hearing, that he did not know that the complaining witness was asleep. Defendant references the transcript of the pretext call and argues he repeatedly told the complaining witness that he did not know that she was asleep. Defendant did not know that the call was being recorded. During that conversation, defendant also stated, “I thought you were going to turn over and wake up.” Defendant also told the complaining witness, “What happened is I started, I started hitting it kind of hard cause I was about to nut and then you woke up like and moved and like what the hell”
When we look to the entire record, we conclude that a reasonable person could determine that defendant committed the crime of sexual intercourse with an unconscious person. The complaining witness specifically told defendant that she would not have sex with him. And defendant agreed in the recorded conversation he engaged in an act of sexual intercourse. Moreover, even if she had consented to sex in advance, “[A] man who thereafter has sexual intercourse with her while she is unconscious necessarily deprives her of the opportunity to indicate her lack of consent.” (People v. Dancy, supra, 102 Cal.App.4th at p. 37.) During the pretext telephone call, defendant gave conflicting statements as to whether the complaining witness was awake but finally agreed she was asleep when he engaged in an act of intercourse. Defendant has not sustained his burden of factual innocence. The record here merely raises a substantial question as to defendant’s guilt. It does not exonerate. The trial court properly denied the section 851.8 motion to seal and destroy defendant’s arrest record.
The order is affirmed.
We concur: ARMSTRONG, J., KRIEGLER, J.