Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. SCD126325 Larrie R. Brainard, Judge. Affirmed.
HUFFMAN, Acting P. J.
In 1997 Robert C. Wheeler was charged with attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and inflicting corporal injury on his spouse (§ 273.5, subd. (a)). After the court ordered him held to answer on the charges, a reviewing court dismissed the charges. (§ 995.) Almost nine years later, in May 2006, Wheeler filed a motion to seal and destroy the arrest record. (§ 851.8.) The court held a hearing and denied the motion. Wheeler contends this was error.
All statutory references are to the Penal Code.
FACTS
During January 1997, Wheeler and his wife Kendra lived in an apartment on Lake Murray Boulevard. On January 20, Wheeler's next-door neighbor, Winifred West, was talking on the telephone when Kendra suddenly jumped from her balcony onto West's balcony. Kendra appeared frantic, yelling, "Help . . . he's trying to kill me. Let me call the police." Kendra grabbed the phone from West and called 911. Meanwhile, Wheeler was on his own balcony trying to persuade Kendra to return home. When Wheeler jumped from his balcony onto West's balcony, Kendra ran to West's bathroom. Wheeler followed urging Kendra to return home. Wheeler did not raise his voice or threaten Kendra. When police arrived, Kendra yelled, "Oh, oh, here he comes. He's gonna get me."
The following morning, Detective Betty Bixby of the domestic violence division spoke by telephone with Kendra. Kendra told Bixby that Wheeler accused Kendra of having an affair and wrapped a cord around her neck and tried to kill her. Kendra said Wheeler lifted her from the toilet by the cord and took her to the bedroom where he threw her on the bed. Kendra told Bixby that Wheeler said he had to find something to kill her with and a location to place her body. The cord was found, either in West's apartment or in Wheeler's pocket. Kendra told Bixby that she broke free and jumped to West's balcony. Police took photos of bruises on Kendra's neck that were consistent with use of a cord to strangle. West told Bixby that she believed Kendra was a liar. Wheeler denied putting a cord around Kendra's neck. He agreed to take a polygraph test. No polygraph test results are included in the record. On a later occasion, Kendra again told Bixby that Wheeler placed the cord around her neck and tried to kill her. The third time Bixby spoke with Kendra, Kendra told Bixby she did not think Wheeler meant to kill her. Over five months after the incident, Kendra submitted a declaration swearing that her previous statements were false. In the declaration Kendra said that she and Wheeler argued over their fidelity, he said he was going to leave her, and she attempted to commit suicide.
DISCUSSION
Section 851.8, subdivision (c) provides in pertinent 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 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 grant the relief . . . ."
Section 851.8, subdivision (l) provides in pertinent part, "For arrests occurring on or after January 1, 1981, . . . petitions for relief under this section may be filed up to two years from the date of the arrest . . . . Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice."
Section 851.8 is for the benefit of those defendants who have not committed a crime. It permits defendants 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. (People v. Chagoyan (2003) 107 Cal.App.4th 810, 816.)
Here, while denying the motion, the trial court at the outset noted that Wheeler's petition had not been filed within the two years required by section 851.8, subdivision (l). The court asked Wheeler for a good reason and Wheeler responded that he had been employed 15 years in the electronics field including five years as a supervisor and had no problem in employment. Now, because of his arrest record he was unable to get employment. He did not know the arrest record would be a problem until he submitted resumes to potential employers and was turned down. The court asked what evidence Wheeler would present to show his factual innocence if it permitted him to go ahead. Wheeler told the court that the alleged victim filed a declaration expressing his innocence. The court denied the motion stating:
"THE COURT: Well, I think I have the basics of it. I'm sorry, Mr. Wheeler, but I'm going to deny your motion. And I know that's not what you want. We certainly want you getting employment. You are many years beyond. You have done a great job.
"MR. WHEELER: Thank you, your honor.
"THE COURT: You have many years beyond the filing deadline for this motion. Even if I did allow you to proceed with the motion, you clearly have not justified the time issue. You have not met the burden of proving that you are factually innocent. [¶] Your wife at the time was injured. They took photographs of the injury. There was plenty of reason for you to have been arrested at the time based upon the circumstances. So I would be denying the motion on either ground. But I am just — I'm going to, again, deny it on time. But I am also going to say that you have not shown sufficient evidence of factually innocent. There was clearly enough cause to arrest you at the time. The fact it's in the way of you getting employment is — that's not good, but I can't grant your motion.
[¶] . . . [¶]
"THE COURT: Well, recanting wives is not anything new in our system. But clearly she was injured. She had injuries. They took photos. They arrested you. The fact that your wife recanted later is a factor, but given the time aspect, and the fact that's a 1997 statement, I'm going to deny your motion."
Wheeler argues that a pro per defendant is supposed to receive leniency and should have asked unspecified "pointed questions" to clarify the time frame of the events and Wheeler's need to petition sooner. A trial court abuses its discretion only when it acts arbitrarily or in a capricious manner. (People v. Jordan (1986) 42 Cal.3d 308, 316.) Here, Wheeler has not shown that the trial court was arbitrary or capricious in finding that he had not shown good cause for the long delay in attempting to seal the record.
In any event, Wheeler has not shown that the trial court applied the wrong standard in finding Wheeler failed to demonstrate he was innocent of the charged crime. In People v. Adair (2003) 29 Cal.4th 895, 904-906 (Adair), the court determined that decisions of trial courts granting or denying relief under section 851.8 should be independently reviewed on appeal. Relief under that section cannot be granted unless the petitioner demonstrates there was no reasonable cause to believe he committed the charged offense. The court in Adair cited with approval People v. Matthews (1992) 7 Cal.App.4th 1052, 1056 (Matthews) and People v. Scott M. (1985) 167 Cal.App.3d 688, 699-700.
The court in Matthews stated the standard somewhat differently "[e]stablishing factual innocence . . . entails establishing 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." (Matthews, supra, 7 Cal.App.4th at p. 1056.)
Applying the independent review standard we conclude that Wheeler has not met his burden in establishing factual innocence. Clearly there was probable cause to arrest him based on the victim's statements, the events observed by the neighbor and the victim's physical injuries. The fact the victim later recanted made the case weak and undoubtedly caused the dismissal of the prosecution. We cannot say, however, there is not reasonable cause to believe Wheeler committed the offense. If a jury had heard the evidence and believed the victim's original version, there would have been sufficient evidence to convict. (Adair, supra, 29 Cal.4th at p. 909; see also People v. Rhinehart (1973) 9 Cal.3d 139, 151.) Accordingly we find the trial court correctly denied the petition on the merits in addition to its determination the petition was untimely.
DISPOSITION
The order denying the motion to seal and destroy the arrest record is affirmed.
WE CONCUR: McDONALD, J., IRION, J.