Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 2387156.
Pollak, J.
The District Attorney of San Francisco appeals from an order granting the petition of Jordan Bogash determining his factual innocence of a crime which he was previously charged with committing. The criminal complaint against him was dismissed on the People’s motion in the interest of justice. Although Bogash presented substantial evidence of his innocence, there nonetheless remains evidence sufficient to leave his guilt or innocence in reasonable doubt. Under the stringent standard governing such petitions, we are constrained to conclude that the petition should not have been granted and, therefore, shall reverse the order.
Background
Bogash, Daniel Morell and Douglas Niemi were charged with three counts of felony assault committed against Steven Scott Jones in the early morning hours of September 28, 2008. The essentially undisputed facts are that at that time Jones, a physically handicapped African-American, came upon two or three White males on Cedar Street, an alley that parallels Geary Street, between Polk and Larkin Streets, in San Francisco. Two of the men were spray painting, or “tagging, ” a building on Cedar Street. Jones asked them what they were doing, was told to mind his own business, and after watching them “for a while” started to leave. The smaller of the two men then ran up to Jones and spray painted him in the face and head. The larger male knocked or tripped him to the ground and then hit Jones with a skateboard. Jones was kicked in the hips, buttocks and legs, and punched in the head and upper body. When a passerby, James Thomas, approached, the attackers ran away laughing. One ran towards Polk Street and two ran towards Larkin Street, and Thomas followed the latter two. The attackers turned on Geary Street and stopped in front of the Edinburgh Castle Pub, where they met the male who had run in the opposite direction. Thomas overheard the bigger of the two spray painters, who was later identified as Morell, bragging to others, “We fucked up the cripple, ” and the shorter man, who he then identified as Bogash, saying, “We got the nigger.” Thomas found nearby police officers, reported what he had seen and led officers to the bar where he identified Bogash, Morell and Niemi as the perpetrators. The three were detained; Jones was brought to the bar and, after being read the standard cold show admonition, identified Morell and Bogash as the two who had attacked him: “Those are the guys. That’s them. The little one and the big one.” The mug shot profiles describe Bogash as being 5 feet 4 inches tall, Morell as 5 feet 11 inches, and Niemi as 5 feet 10 inches. Bogash testified that he is 5 feet 3 inches.
Bogash was at the time a student at the San Francisco Art Institute. In his statement to the police after his arrest and in his testimony in support of his petition for a finding of factual innocence, he maintained that on the evening in question he was attending a friend’s birthday party at the Edinburgh Castle bar and was not on Cedar Street and had no interaction whatever with Jones. He testified that he went outside the bar for a cigarette, saw and spoke to his friends Morell, Niemi, and Ronnie Goodman—who said nothing about an assault—returned inside the bar, and 20 minutes later went outside again and was arrested. He contends that he was misidentified by both Jones and Thomas, who mistook him for Goodman, who was actually the second spray painter.
Bogash, Morell and Niemi were charged by complaint with three counts of violating Penal Code section 245, subdivision (a)(1), assault with a deadly weapon, a skateboard, assault with a deadly weapon, a spray can, and assault with force likely to produce great bodily injury. On May 7, 2009, Morell pleaded guilty to one count of assault with a deadly weapon, a skate board, as a misdemeanor, and the People moved to dismiss the case as against Bogash in the interest of justice pursuant to Penal Code section 1385. Before granting the motion, the court asked the prosecutor whether he had sufficient evidence independently on each of the codefendants, to which the assistant district attorney responded, “As to Mr. Bogash, our investigation revealed we did not, and we dismissed him prior to these negotiations in this plea.”
Bogash then filed a petition for a finding of factual innocence pursuant to Penal Code section 851.8, which was opposed by the district attorney. Following the submission of evidence, an evidentiary hearing, and the argument of counsel, the court granted the motion with this brief explanation: “The court will make the following finding: The court is going to grant the 851.8 motion finding that, ‘Facts exist which would lead no person of ordinary [care] and prudence to believe or [conscientiously] entertain any honest and strong suspicion that the person arrested is guilty of the crimes charged.’ [¶] And that is from the Adair case [People v. Adair (2003) 29 Cal.4th 895, 906] language from California Supreme Court’s unanimous decision. These are always difficult matters, challenging ones for judges, and having again looked at all of the testimony and the exhibits that is my decision.”
The district attorney timely appealed.
Discussion
Penal Code section 851.8, subdivision (b) provides in part: “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 People v. Adair, supra, 29 Cal.4th 895, our Supreme Court determined the proper standard of review on appeal from a trial court finding of factual innocence. The court held that “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’ he or she committed the offense charged.” (Id. at p. 897.) “[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.” (Id. at p. 905.) “[W]hether ‘no reasonable cause exists’ is an objective question measured by an external standard—would ‘no person of ordinary care and prudence... believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged.’ ” (Id. at p. 906.) The court reiterated that “ ‘[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.’ ” (Id. at p. 905.) Although recognizing that factual innocence may be established by facts subsequently disclosed even if there was probable cause for the arrest (Id. at p. 905, fn. 4), the court upheld a Court of Appeal decision overturning a finding of factual innocence after a jury had found the defendant not guilty of the crime charged but the evidence was nonetheless sufficient to have upheld a guilty verdict. This evidence was sufficient to “cause a person ‘ “of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that [defendant] is guilty of a crime.” ’ ” (Id. at p. 909.)
Applying the standard articulated in Adair, the Court of Appeal reversed a finding of factual innocence that followed a jury’s acquittal in People v. Medlin (2009) 178 Cal.App.4th 1092. “The acquittals notwithstanding, after independent review of all of the evidence available to the prosecution [the Court of Appeal could not] conclude that “ ‘ “no objective factors justified official action....” ’ ” (Medlin, p. 1104.) Similarly, in People v. Bleich (2009) 178 Cal.App.4th 292, the trial court, sitting as a magistrate, found that there was insufficient evidence to bind over a defendant for trial and dismissed the case, but subsequently denied a petition to declare the defendant factually innocent. The Court of Appeal affirmed, pointing out that the failure of proof was “evidentiary” and did not “completely exonerate” the defendant. (Id. at p. 303.)
In the present case, there is no doubt that Bogash presented substantial evidence of mistaken identity. Although Goodman did not testify, Bogash introduced the report of an investigator who interviewed Goodman in an attorney’s office. Goodman told the investigator that he was with his friend Morell standing on a skateboard spraying a wall in the alley near Cedar and Larkin Streets when approached by an older Black man who told them to stop, that the man attempted to grab the skate board, and that he then sprayed the man in the face and that when the man fell to the ground he kicked him in the face. Goodman told the investigator that no person other than himself kicked the man, and that Morell “told him to stop.” According to the report, “After the confrontation, [Goodman] walked away and went to a nearby corner store, and eventually went home.” Goodman stated that no one other than he, Morell and the victim were in the alley at any time during this incident. A second investigator who served a subpoena on Goodman (although Goodman did not appear at the hearing) testified that he had “asked [Goodman] if he had seen Mr. Bogash the night of the incident and if Mr. Bogash had participated, and he said, ‘No. Mr. Bogash was inside the Edinburgh Castle the entire time and Mr. Bogash had not touched anyone or participated in the incident.’ ”
Moreover, Thomas, who came upon the scene, summoned the police, and identified Bogash as one of the perpetrators, subsequently recanted. The police report indicates that he originally told the officers that four males attacked the victim, but he subsequently advised the prosecutor that “he and the police report were incorrect as to the number of people he saw attack the victim.... [He] saw three people (not four) punching and kicking the victim.” According to the prosecutor’s summary of her conversation with Thomas, after following two of the attackers out of the alley “[h]e saw the two suspects stop in front of the bar. He said the suspects meet up with the 3rd guy in the grayish sweat shirt. Mr. Thomas then saw a little person, wearing a black jacket, come out of the bar and meet up with the three suspects. He said the fourth person was standing there talking to the other three suspects. Thomas confirmed that he did not see the 4th guy do anything to the victim. He just assumed the 4th person was involved because he appeared to know what was going on and talking to the other suspects.” At the hearing on the petition, Thomas testified that when the two men that he followed were talking in front of the Edinburgh Bar, he “saw another individual who was smaller than all the rest come out of the bar, and I didn’t really notice him at first.” He identified this person as Bogash and testified that “the first time that [he] had seen him that night was when [he] saw him walk out of the bar, ” that he did not see Bogash in the alley, and did not see him “participate at all in the attack against Mr. Jones.”
Additionally, one of the responding police officers, Sergeant Alex Takaoka, testified that another person called 911 to report a fight that he had witnessed in Cedar Alley. Takaota was subsequently told by this person, who did not wish to identify himself but was later identified as Frollie Ramos, that he had seen three males with the Black victim in the alley. Although he could not identify them, he said that one was White and 5 feet 7 inches tall, one was a Latino 5 feet 9 inches tall, and that all three were between 5 feet 7 inches and 5 feet 9 inches in height. Ramos subsequently signed a declaration stating that he was “absolutely certain that none of the aggressors involved in the confrontation with the African-American man was 5 feet 3 inches or 5 feet 4 inches tall.” He described the White male to Takaoka as wearing a baseball hat, which Bogash was not wearing when arrested.
While this testimony if accepted certainly exonerates Bogash, there is, as the district attorney argues, other evidence that places the truth of the matter in doubt. Initially, there remains the identification of Bogash as one of the perpetrators made by the victim shortly after the attack. Jones, the victim, did not testify at the hearing on the petition. There is also the fact that his testimony at the hearing notwithstanding, Thomas unquestionably did identify Bogash as a perpetrator on the night of the incident. Moreover, there are critical contradictions between Goodman’s supposed admission of culpability and the facts established by other evidence. While Goodman assertedly said that he was the only person who struck Jones and that there was no one in the alley besides Morell, Jones and himself, Thomas testified there were three males in the alley who attacked Jones, as Ramos also confirmed. Goodman assertedly said that Morell did not strike Jones and told him to stop hitting the victim, which is inconsistent with the statements of both Jones and Thomas and also inconsistent with Morell’s guilty plea to the charge of assaulting Jones. Ramos stated that at the start of the incident the Latin male pulled the White male away from the Black male, but that after the White male sprayed the Black male, all three attackers kicked the victim numerous times. Moreover, if Goodman went directly home from the alley as he testified (which is inconsistent with Thomas’s testimony that he followed the perpetrator to the bar), there is no basis for his statement to the second investigator that Bogash was inside the bar when Jones was attacked. In his statement to the first investigator, Goodman made no mention of being at the Edinburgh Castle bar or of seeing Bogash that evening, and he stated that he went home after leaving Cedar alley, which is also inconsistent with Bogash’s testimony that he spoke to Goodman that evening in front of the bar.
Perhaps most significantly, Takaoka testified that when arrested, Bogash had white paint on his hands and on his clothing. The white paint was the same color as the white paint that was sprayed on the victim. Bogash attempts to explain this fact away by pointing out that at the time he was an art student, but he offered no testimony or other evidence that explained the presence of the paint on his person and on his clothing that evening.
In making our independent review of the evidence, as we are required to do, we cannot help but conclude that reasonable cause remains to believe that Bogash was one of the persons who attacked Jones on September 28, 2008. While Bogash’s evidence creates a reasonable doubt as to his involvement, the evidence considered as a whole does not unequivocally establish his innocence. The paint on his hands and clothing, the identifications of him as the perpetrator made within minutes of the attack, and the many incongruities in Goodman’s version of events are sufficient to “cause a person ‘ “of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that [defendant] is guilty of a crime.” ’ ” (People v. Adair, supra, 29 Cal.4th at p. 909.).
Disposition
The order granting the petition under section 851.8 is reversed.
We concur: McGuiness, P.J., Siggins, J.