Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County, Annie M. Gutierrez, Judge, Super. Ct. No. JCF17515.
BENKE, J.
On March 30, 2006, Josie Aldana brought a motion to seal and destroy records under Penal Code section 851.8. The motion was brought on the ground she was factually innocent of charges brought against her by the Imperial County District Attorney. The trial court granted Aldana's motion. We agree with the district attorney the trial court applied an incorrect standard and that Aldana failed to carry her burden at the hearing. We therefore reverse.
BACKGROUND
In early March 2006, agents from the Drug Enforcement Administration (DEA) conducted surveillance at the port of entry in Calexico. On March 8, 2006, they saw suspicious activity and observed a subject travel to 249 Daniels Street in Imperial County. The suspicious person then traveled to another location, picked up Noe Adan Gonzalez and brought him back to the Daniels Street residence. The driver parked at an odd angle in the driveway and Gonzalez exited the vehicle. In his right arm he was carrying a package wrapped in green or blue material. Gonzalez walked up the driveway towards the east side of the house where a carport and entrance to the kitchen area were located. A Ford Ranger (Ranger) pickup truck was parked in the carport 5 to 10 yards from the residence door.
Photographs of the Ranger and the vehicle's proximity to the front door were introduced as an exhibit.
The next day, on March 9, 2006, DEA agents executed a search warrant at the Daniels Street residence. As the search was underway, Aldana approached one of the officers involved in the search and identified herself as the owner of the house. Gonzalez, her boyfriend, had lived in the house with her for two and a half years. The agent asked her where "Adan" was. She stated she did not know who that was. He then asked her where "Noe" was. She indicated: "Who's that; who's that guy?" He asked for Noe more than once. The agent then told her he was looking for "Gonzalez." She then stated "Oh, okay" and indicated she knew who the agent was talking about. She was asked to call Gonzalez and have him come to the house. She did so. Approximately 10 minutes later Gonzalez arrived.
The agents proceeded to immediately search the Ranger. It was locked. Special Agents Darien Dir and Matthew Lankenau obtained the key to the locked vehicle from the top of a table inside a bedroom of the residence. The key which had "Ford" on it, was on a key ring attached to a necklace key chain. The key ring was found next to a computer. In a drawer beneath the computer keyboard were personal papers belonging to Aldana and Gonzalez. The papers were intermingled. The bedroom also contained clothing that could belong to men and women.
During the search of the Ranger, Aldana remained outside at the front of the house. Agent Jim Hughes observed Aldana standing next to a chain-link fence at the end of the driveway. Her gaze was directed at the Ranger. She was "fixed" on the vehicle. Although she was standing straight and tall at first, as Agent Dir began to search the Ranger, Aldana placed her hands and elbows on the fence, leaning against it. Her attention was still on the Ranger. At some point during the search of the vehicle, she appeared to need the fence to support her body weight. Hughes believed she was having trouble standing and her legs "were about to give out." He described her demeanor as having been "gut punched." After these reactions by Aldana, someone announced: "We found it, we've got it. We've got what we're looking for."
Agent Dir took a black and gray backpack from behind the driver's seat of the Ranger and put it and items later determined to be seven brick-shaped packages of cocaine on the ground at the rear of the vehicle.
Aldana was ordered detained at the scene. She was taken to the back of the yard and was seated there as the search continued in the interior of the house.
Inside, the agents observed remodeling, especially in the kitchen area. DEA Agent Oscar Ruiz, who assisted in executing the search warrant, believed based upon his personal experience that the renovations were valued at approximately $10,000.
An inventory of Aldan's purse revealed it contained $370 in cash, in mixed denominations of 20, 10 and 5 dollar bills. Aldana at first stated she did not realize she had so much cash, then remembered that she accessed an ATM machine earlier that morning. Although given time to do so, she was unable to find the ATM receipt. She informed the agents she worked for about three months as a probation assistant for the county making $1,500 per month.
Aldana told the officers that the Ranger had been at her house for a week. She denied knowing it contained drugs. The Ranger was registered to Jose Mora. Gonzalez told the officers that Mora left the vehicle there to be worked on. He told them Aldana did not know drugs were in the Ranger.
Aldana was arrested on charges of possession for sale of a controlled substance, cocaine, in violation of Health and Safety Code section 11351 and maintaining a place for selling or using a controlled substance, in violation of Health and Safety Code section 11366. By a complaint filed on March 13, 2006, the District Attorney for Imperial County charged Aldana with these two offenses (counts 1 and 4).
In the same complaint charging Aldana, Gonzalez was charged with possession for sale of a controlled substance, cocaine, in violation of Health and Safety Code section 11351 (count 1), sale/transportation/offer to sell controlled substances, cocaine, in violation of Health and Safety Code section 11352, subdivision (a), (count 2), possession of marijuana for sale, in violation of Health and Safety Code Section 11359 (count 3), and maintaining a place for selling or using a controlled substance, cocaine, in violation of Health and Safety Code section 11366 (count 4).
The People did not proceed to a preliminary hearing with respect to Aldana. On March 21, 2006, they moved in the interest of justice to dismiss the charges against her. The court granted the motion.
Aldana then filed pursuant to Penal Code section 851.8 a motion to seal and destroy her arrest records and for a declaration of factual innocence. In support of the motion, Aldana attached her declaration stating her innocence was based on lack of knowledge there were narcotics on her property or in the vehicle where they were found. She also attached as Exhibit A copies of law enforcement investigative reports. The People opposed the motion.
On April 24, 2006, Aldana testified and the court granted Aldana's motion. The People, relying upon the court's oral representation that it had not fully read the investigative reports attached to Aldana's motion and the argument they were not permitted to put on rebuttal evidence, requested the court reconsider its ruling. They requested further that the court augment the record with additional evidence.
The People also filed an application to stay execution of the order pending reconsideration.
On June 2, 2006, the court granted the People's requests. Following a hearing during which the court considered additional evidence and heard testimony from the law enforcement officers involved in the arrest of Aldana and the search of her residence and the Ranger, it again granted Aldana's motion.
The People filed a timely notice of appeal.
The People argue the court erred in finding Aldana factually innocent and thus sealing and destroying her arrest records. We agree and reverse the trial court's ruling.
ANALYSIS
In pertinent part Penal Code section 851.8 provides: "(c) 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."
Section 851.8 exists for the benefit of those defendants who have not committed a crime. (People v. Adair (2003) 29 Cal.4th 895, 905.) 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. "Hence, much more than a failure of the prosecution to convict is required in order to justify the sealing and destruction of records under section 851.8. [Citation.] 'Establishing 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.' [Citation.] A trial court's finding of factual innocence based solely on its own interpretation of the evidence does not sustain the defendant's burden any more than a failure of the prosecution to convict. [Citations]." (Id. at p. 905, fn. omitted.)
Section 851.8 thus precludes a trial court from granting a petition for a finding of factual innocence unless the court finds that no reasonable cause exists to believe the defendant committed the offense charged. "In other words, the trial court cannot grant relief if any reasonable cause warrants such a belief." (People v. Adair, supra, 29 Cal.4th at p. 904.) As the court observed in Adair: " ' " '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." ' " (Ibid.)
The standard of review on appeal from a trial court's granting or denial of a motion under Penal Code section 851.8 is de novo. Although the appellate court should defer to the trial court's factual findings to the extent they are supported by substantial evidence, it must independently examine the record to determine whether the defendant has established that no reasonable cause exists to believe she committed the offense charged. (People v. Adair, supra, 29 Cal.4th at pp. 905-906.)
We conclude the trial court used an incorrect standard in determining whether Aldana was factually innocent, and in any event Aldana failed to sustain her burden of demonstrating factual innocence.
1. The standard used by the trial court was incorrect.
It is not clear what standard the trial court used in its decision to grant Aldana's petition. At one point the court stated: "But maybe I'm not an ordinary person, but I don't see it the way the prosecution has painted it." It proceeded to take the evidence of remodeling and its costs "with a grain of salt." The estimates of the costs of remodeling offered by one of the government's agents were "of no use" to the court. The trial court likewise disregarded Agent Hughes's observations of Aldana's demeanor as the Ranger was being searched, concluding they were a "logical reaction" for a probation employee facing a first time arrest. While the key to the Ranger was found in Aldana's bedroom, the court stated this only raised some doubt.
On the other hand, the court stated: "The Court's not saying that there was not enough evidence to arrest [Aldana], but . . . I think there were certain doubts. But once the prosecution went to the preliminary hearing, I think that they realized that they did not have enough evidence to bind her over, so they did not take her to preliminary hearing."
The basis for the trial court's ruling was incorrect. Rather than decide whether an ordinary person could entertain an honest and strong suspicion Aldana committed the offenses with which she was charged at the time of her arrest, it appears the trial court based its conclusion at least in part on the district attorney's decision not to proceed to a preliminary hearing and in part on its own decision as to whether the evidence reflected guilt.
In the first instance, the question for the trial court was not whether evidence existed to bind the defendant over. The discretion to charge or not charge an offense, or when to proceed with a criminal case or refrain from proceeding, is not for the court. The prosecution may decide not to proceed with a criminal matter even when it has probable cause to do so. (See People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914-915; United States v. Lovasco (1977) 431 U.S. 783, 791 [97 S.Ct. 2044].)
Nor was the trial court free to weigh the evidence and base its decision upon its own view of the evidence as if it were deciding the guilt or innocence of an accused. The issue before the court was whether there were no objective facts from which a person of ordinary care and prudence could entertain an honest and strong suspicion Aldana committed the crimes for which she was arrested, the absence of which compels the conclusion the system erred and Aldana should never have been subjected to any arrest or the criminal justice process. In sum, the record must exonerate, not merely raise a substantial question as to guilt. (People v. Adair, supra, 29 Cal.4th at p. 909.)
2. Aldana did not sustain her burden to demonstrate factual innocence.
Importantly, the trial court did not exonerate Aldana. Indeed, as we have noted, it stated it was not concluding there was insufficient evidence to arrest her. Impliedly, it concluded there was sufficient evidence to arrest her. If we accept the court's conclusion, there was no way the court could properly grant Aldana's motion.
Moreover, the evidence introduced at the hearing on Aldana's motion presents objective facts from which a reasonable person could conclude that contrary to her protestations she committed the crime of maintaining a house for unlawful narcotics activity. One can violate the statute without personally selling, giving away or using the specified controlled substance. It may be violated by one who merely provides a place for drug abusers to gather and share their experience. (People v. Vera (1999) 69 Cal.App.4th 1100.) The vehicle at Aldana's house was by her own admission present for at least several weeks. It was parked steps from her front door. The key to the Ranger was located on a computer table in what appeared to be her bedroom. Aldana's demeanor while the Ranger was being searched was consistent with knowledge narcotics were inside. She remained fixed on the vehicle during the entirety of its search and had an increasing physical reaction of distress as the agents got closer to finding the contraband. Moreover, the Ranger was allegedly being legitimately worked on by Gonzalez. Yet, even though he was her boyfriend and she had lived with him for over two years, Aldana was initially evasive about knowing him. She needed to be prompted more than once to admit she knew him.
At the hearing there were also objective facts presented from which a reasonable person could conclude Aldana may have possessed cocaine for sale. Contraband drugs may be jointly possessed. (People v. Morante (1999) 20 Cal.4th 403; People v. Austin (1994) 23 Cal.App.4th 1596.) A showing of nonexclusive possession does not necessarily exonerate a defendant. (People v. Tolliver (1975) 53 Cal.App.3d 1036.) A conviction for possession of narcotics can be sustained if an accused has an immediate right to exercise dominion and control over a known narcotic even though the possession is constructive or is joint with that other person. (People v. Sotelo (1971) 18 Cal.App.3d 9.) The presence of the substance in a light fixture in a bedroom shared by husband and wife is sufficient circumstantial evidence to support a finding of joint possession. (People v. Magana (1979) 95 Cal.App.3d 453.)
The Ranger was parked close to the door of Aldana's house and was parked there for at least several weeks. The key to the Ranger was found in Aldana's bedroom on a computer desk she apparently had access to. She reacted during the search of the vehicle the way one would react knowing contraband was about to be found. These are all objective facts that would lead a reasonable person to suspect she was guilty of possessing cocaine stored in the vehicle.
DISPOSITION
The trial court used an incorrect standard to determine whether Aldana was factually innocent. Moreover, Aldana failed to carry her burden of showing she was factually innocent of the crimes for which she was arrested. The evidence introduced at the hearing included objective facts from which a reasonable person could suspect she was guilty of the crimes for which she was arrested. We therefore reverse the decision of the trial court.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.