Opinion
H036458
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. DYLAN ANTHONY ENDERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS040870)
Following a preliminary examination held in March 2004, the Monterey County District Attorney (hereafter, the People) filed an information on April 7, 2004, charging defendant Dylan Anthony Enders with being a felon in possession of a firearm and ammunition (Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1); count 1 & 2), concealing a firearm in a vehicle (§ 12025, subd. (a)(3); count 3), carrying a loaded firearm (§ 12031, subd. (a)(1); count 4), receiving stolen property (§ 496, subd. (a); count 5), and participating in a criminal street gang (§ 186.22, subd. (a); count 6). The information further alleged that defendant committed the offenses in counts 1 through 5 for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant was not the registered owner of the firearm involved in counts 3 and 4. In November 2004, the matter was dismissed on motion of the People in the interest of justice pursuant to section 1385. In September 2005, defendant filed a petition seeking a finding of factual innocence. (§ 851.8, subd. (c).) The People opposed the petition. Following a hearing at which both parties presented testimony and documentary evidence, the trial court filed a 12-page decision and order on June 12, 2007, denying the petition. Defendant appealed from the court's order. In an unpublished decision, this court reversed the order of the trial court and remanded the matter for further proceedings. (People v. Enders (Aug. 3, 2009, H031941).)
All further statutory references are to the Penal Code.
2 The trial court found that one reasonable explanation for this is that defendant's friend and coworker, Gordon, made the call to Gracia in an attempt to locate defendant.
Upon remand, the parties met with the trial court for discussions and filed supplemental briefs. On November 23, 2010, the court filed a 60-page decision after remand, again denying the petition. Defendant appeals from the order, contending that the court again erred in denying his petition. We will affirm the trial court's ruling.
BACKGROUND
We set forth the facts and procedural history as stated in People v. Enders, supra, H031941.
The Preliminary Examination Testimony
On February 2, 2004, Salinas police officers conducted surveillance on an address on Park Way in Salinas associated with David Sexton, a Norteño gang member wanted on a weapons charge. The officers saw a red Ford Escort stop at the address. They ran the license plate on the Escort and determined that the plate belonged to a Honda, so the Escort was possibly stolen. They passed this information on to other patrol units in the area and asked them to stop the Escort.
Around 3:56 p.m. on February 2, 2004, Officers Gilbert Bacis and Vicky Burnett were in uniform in a patrol car on North Sanborn Road at East Alisal Street. They had received the information about the Escort around five to 10 minutes earlier, and they saw the Escort approach them. Officer Bacis, the passenger in the patrol car, got a good look at the passenger in the Escort for 30 to 40 seconds while they were stopped at a signal. The passenger in the Escort appeared to Officer Bacis to have a light complexion, a thin build, short hair, a goatee, and distinctive eyebrows and sunken eyes, and he was wearing a white T-shirt. Officer Bacis thought the driver of the Escort was a stocky male with a light complexion.
The officers activated their lights and siren and attempted to stop the Escort, but the Escort kept going. The officers pursued the Escort as it made many turns, failed to stop at stop signs and signals, and broadsided a car in an intersection. When the Escort turned left onto Kenneth Street from Market, Officer Bacis saw the passenger wipe down a gun and then throw the gun and a red bandana out the passenger-side window. The officers stopped their pursuit and picked up the gun, which was a .45 caliber semi-automatic with a full magazine but no chambered rounds. The officers later learned that the gun was reported stolen in Lake County.
Officers found the Escort on Kimmel Street later the same day. Pablo Munoz saw two teenaged Hispanic men pull up in the Escort in front of his home on Kimmel Street around 4:00 p.m. on February 2, 2004. The men jumped out of the car, grabbed a car battery from the back seat, and ran around the corner. The driver had a mustache and the passenger was wearing a red shirt and had a goatee. Officers lifted 11 partial fingerprints from the passenger side of the Escort. At least three of the fingerprints were usable but none of them matched defendant's.
Officer Burnett was unable to find a telephone number for the registered owner of the Escort. She determined that the license plate that had been on the Escort belonged on a Honda, but she did not talk to Rosio Sanchez, the registered owner of that Honda. She determined that one of Sanchez's associates, Jose Garcia, resembled the driver of the Escort. She did not talk to Garcia. On February 11, 2004, she put together a lineup consisting of 17 photographs, including one of Garcia and one of defendant, who she thought looked like the passenger. She asked Officer Bacis if he could identify the Escort's passenger. Officer Bacis positively identified defendant's photo after examining all the photos and looking at defendant's photo for about 30 seconds. Officer Bacis also identified defendant at the preliminary examination as the Escort's passenger. Officer Burnett did not show either Munoz or the victims of the intersection accident the photographic lineup. Munoz was shown the photographic lineup at the preliminary examination and testified that none of the people in it was either the passenger or the driver of the Escort. Munoz also testified that defendant was not one of the men from the car.
In February 2004, defendant was on probation for a misdemeanor domestic violence offense, living in Marina, and gainfully employed. He had Norteño gang tattoos on his arms and his left hand, he had previously associated with Norteño gang members and worn gang clothing, and he had previously admitted membership in a Norteño gang. Officer Burnett arrested defendant on February 22, 2004. Officer Burnett showed defendant Garcia's photograph, and she told defendant that she thought Garcia was the driver of the Escort. Officer Burnett also told defendant that another officer identified him as the passenger in the Escort. Defendant told Officer Burnett that he knew Garcia from jail, but that he had not "kicked with" him and did not really know him well. Defendant said that he was housed with Norteños and followed their rules and regimen while in jail in 2003. He said that he was not the passenger in the Escort and that his fingerprints would not be in the car, and he asked that the officer who identified him be brought in to see him.
The Petition for a Finding of Factual Innocence
On September 14, 2004, defendant filed a pretrial brief stating that he was at work in Monterey the entire afternoon of February 2, 2004. Attached to the brief was a report from a technology expert stating that an examination of a clone of the hard drive from defendant's work computer showed that defendant's computer was in use between 11:26 a.m. and 5:38 p.m. on February 2, 2004. Also attached was a report from a forensic analyst stating that a partial DNA profile was obtained from the red bandana thrown from the Escort, and that defendant was eliminated as the donor of that DNA. However, other DNA was present on the bandana in low levels, and no conclusions could be reached regarding the inclusion or exclusion of defendant or any other individual as a possible contributor to that DNA. Between October 6, and October 15, 2004, defendant filed requests that he be allowed to present at trial the testimony of an expert on eyewitness identifications, the testimony of the forensic analyst on the DNA testing, and the testimony of the technology expert.
On November 4, 2004, the date for the jury trial setting, the court dismissed the matter on the People's motion pursuant to section 1385 in the interest of justice and for insufficient evidence. The prosecutor stated that she had not been able to eliminate defendant as a suspect because the latent prints they had did not match those of the other suspect that defendant had identified. However, "[t]here is certainly enough of a resemblance in their facial expressions that we would not be able to prove it beyond a reasonable doubt."
Defendant filed a petition for a finding of factual innocence (§ 851.8, subd. (c)) on September 26, 2005. Defendant contended that the driver of the Escort was its owner Leon Martinez; that the passenger was an associate of Martinez's named Orlando Espinosa; that Espinosa is "a dead ringer" for defendant; and that both Martinez and Espinosa "have made damaging admissions to" a defense investigator. Therefore, defendant contended that Officer Bacis was "honestly mistaken" when he picked defendant out of the photographic lineup, and that other evidence supported defendant's claim that he was at work at the time the incident occurred.
The People filed opposition to the petition in November 2005, contending that defendant had not met his burden of showing that no reasonable cause exists to believe he committed the offenses for which he was arrested, charged, and held to answer.
The Hearing on Defendant's Petition
The hearing on the petition was held over five days between June 2, and September 7, 2006. Both parties presented documents and testimony in support of their contentions. The evidence presented was as follows.
The charged offenses occurred in Salinas on February 2, 2004. Officers doing surveillance at Sexton's house saw a car drive up. The passenger of the car got out, walked up to the house, and then walked back to the car. The car, a red Ford Escort, and the license plate on the car did not match up. The license plate belonged to a Honda. There were two parallel investigations, one started with the license plate, the other started with the Escort. The license plate that was on the Escort belonged on a Honda registered to Sanchez. Sanchez is Garcia's girlfriend. Officer Burnett thought that Garcia resembled the driver of the Escort on February 2, 2004, and that defendant resembled the passenger. Defendant associated with Norteños, so Officer Burnett included defendant's picture in the photographic lineup with Garcia's picture that she showed to Officer Bacis. Officer Bacis identified defendant as the passenger in the Escort, but he was not able to identify the driver. Officers who saw the red Escort at Sexton's residence told Bacis that they would not be able to identify the passenger, so Officer Burnett did not show those officers the photo lineup. Defendant admitted to Officer Burnett on February 22, 2004, and he testified at the hearing on his petition, that he knows both Sanchez and Garcia.
An investigation that started with the car points to Martinez as the owner and driver of the Escort and Espinosa as the passenger. There is a "striking resemblance" between Espinosa and defendant. Martinez and Espinosa are also Norteño gang members, but a photo of Espinosa was not in the photo lineup Officer Burnett assembled. Martinez told defense Investigator Richard Lee that he had been driving the Escort in the days before February 2, 2004, but he claimed that it had broken down and that he had abandoned it in east Salinas. Lee talked with Sexton in jail and Lee showed Sexton a photograph of defendant. Sexton said that the person in the photograph looked like Espinosa, whom he knew as "Evil." Lee talked to Espinosa on October 13, 2004, within 48 hours of talking to Sexton. Espinosa told Lee that he knew Sexton. In addition, Espinosa indicated that he knew Martinez and, in Lee's opinion, Espinosa appeared to be trying to cover something up.
Officer Bacis testified at the hearing that when he compared photographs of Espinosa and defendant, he found them to be very similar, but that he stands by the identification he made of defendant. Officer Bacis also testified that if photographs of both defendant and Espinosa had been in the photographic lineup shown to him by Officer Burnett, he would have picked out both photographs and the officers would have investigated both defendant and Espinosa. Now that he has seen defendant several times in person, Officer Bacis thinks that defendant "looks like the passenger that was in the vehicle that I saw that day."
Defendant testified that he was not in Salinas on February 2, 2004. He was working in Monterey.
Defendant first asserted that he spent the afternoon before the incident at the Salinas home of the sister of one of his friends because of the Super Bowl. However, after he was shown a declaration signed by his brother, he "remember[ed]" that he went dirt biking in Hollister with his brother and his friend during the Super Bowl.
Defendant admitted pleading guilty in 1999 to attempted robbery, and testified that when he was caught by a police officer who came upon the robbery, he originally denied having anything to do with the robbery. In 1997, when he was a juvenile, he admitted committing a commercial burglary. The computers taken in the burglary were found in a shed at his grandmother's house, where he was living at the time. When first contacted by the police regarding the burglary, he denied any involvement in the burglary.
When Officer Burnett arrived at defendant's home to arrest him on February 22, 2004, and explained to defendant's mother why she was there, his mother stated that she thought defendant was with her on February 2, 2004, even though her day planner for that day did not have defendant's name in it.
In February 2004, defendant and his friend Christopher Gordon worked for Independent Real Estate Research (IRER) in the same cubicle on different computer workstations, although Gordon used defendant's computer on some occasions to download photographs. Gordon could not say where defendant was on the afternoon of Monday, February 2, 2004, but he does remember working with defendant that day and does not remember wondering where defendant was. According to IRER's office records and defendant's workstation computer records, somebody was using defendant's computer to download photographs and paste them to an appraisal between 2:55 p.m. and 3:39 p.m. on February 2, 2004. Both defendant and Gordon worked on that appraisal. In addition, an appraisal was e-mailed from defendant's computer at 5:35 p.m. that day.
Office telephone records showed that a call was made to defendant's friend Sara Gracia's cell phone from the office at 3:16 p.m. on February 2, 2004, and that the call lasted one-half minute. Gracia did not testify at the hearing, but she signed a declaration stating that Lee's notes of his interview of her "contain the substance of my statement." Lee's notes state that "Ms. Gracia said that she does not know anyone else who works where [defendant] works and no one else from that business would have ever called her."
Gordon accessed defendant's computer on February 24, 2004, after receiving a phone call from defendant from jail. Other people at IRER told Lee that they had access to and used defendant's computer at various times. IRER has 14 employees. Lee seized the original hard drive from defendant's computer on March 6, 2005. On June 2, 2004, Gerald Enders, defendant's uncle and the owner of IRER, told Officer Bacis that defendant and Gordon were at work on February 2, 2004, that Gordon and defendant went out to lunch, that defendant left the business and was out of the office for a while that afternoon, and that he thought defendant returned late in the afternoon. Defendant's uncle also stated that he had spoken to other IRER employees, but none of them could verify that defendant was there on the afternoon of February 2, 2004.
James Huggins, a retired investigator in the district attorney's office, determined that, although an examination by defendant's computer expert was performed on a clone of defendant's computer, the examination was not done with safeguards in place that would avoid corrupting or tainting the information in the computer. In addition, a clone includes only current files from a hard drive; it does not include covered-over deleted files that a forensic examination can retrieve.
Although defendant had DNA testing done on the bandana thrown from the Escort, neither defendant nor the People have had DNA testing done on a pair of gloves that was found in the Escort.
The Trial Court's Decision
The court took the matter under submission on September 7, 2006, and filed its 12-page decision and order on June 12, 2007. In relevant part, the decision states the following.
"Both counsel cite People v. Adair (2003) 29 Cal.4th 895 in which the California Supreme Court reviews and analyzes most of the other cases cited by counsel. It is clear from the Court's analysis of the statutory process, standard of proof, evidentiary provisions and case law that the trial court is required to apply a high and stringent standard in allowing relief in these cases in order to ensure, to the extent possible, that relief is allowed only to innocent parties and not to those in which a legal defense is available or where there is solely a lack of sufficient proof."
"The [Adair]court . . . observes that all the evidence presented, not just that which would support probable cause for arrest, must be considered. 'In the context of a defendant who seeks a finding of factual innocence notwithstanding probable cause to arrest, facts subsequently disclosed may established the defendant's innocence' [citation]."
"In the instant case, while the investigation 'following the Escort' led to Orlando Espinosa who could have been responsible for the commission of the crime, no indisputable evidence identifies Espinosa as the perpetrator of the crime. On the other hand, it is equally clear that the investigation 'following the cold-plate' led to the defendant. It is noteworthy that both Espinosa and the defendant have strong backgrounds tied to the Norteño street gang consistent with the gang-related aspect of the case. While the current state of the evidence precludes conviction of either the defendant or Espinosa, it does not follow that as to both there is not reasonable cause to believe either of them committed the offense. On the contrary, as the different investigations ultimately led separately to two look-alike suspects, reasonable cause exists as to each subject."
"Whether or not the evidence shows that the defendant could not have committed the crime involves a more complex analysis.
"Records show that his workstation was active at a time that would make it virtually impossible to have . . . participated [in] the charged offenses if the defendant was the one operating his workstation. No witness directly testified that the defendant was in fact at work at the time. According to the witnesses that testified or gave statements, they generally could not pinpoint when the defendant was at work on the day in question. On one hand, his uncle, Gerry Enders, said he made it his business to know where the defendant was at that workplace, and on the other hand, he testified he could not say when or if the defendant left the office on the date in question. Gerry Enders further testified that it is not his job to watch employees and that it is up to the employees to come in and they are not required to keep track of the hours they work. Defendant's uncle in fact made a statement to an investigator that the defendant was gone for a period of time that day returning late in the afternoon (giving various possible times from 3:30 to 6:00 basing it on the fact there were deadlines to meet) and did not know where his nephew, the defendant, was that afternoon; that only Chris Gordon would know. The uncle also indicated he had inquired of other employees and could find none that could confirm defendant's presence, and no system existed to verify employee presence."
"Other employees had access to defendant's computer. Among others, Chris Gordon, defendant's co-worker and friend ('like a brother') had access and was working on the same jobs as the defendant. He trained the defendant and had a much greater understanding of the work. One of the activities recorded during the relevant timeframe was the 'downloading' of pictures on the defendant's workstation. There were times where Mr. Gordon 'downloaded' pictures on defendant's computer. The pictures were downloaded so they could be included in a project with which the defendant was helping Chris Gordon, and the deadline for the project was that same day. Chris Gordon was vague about whether or not the defendant was gone that day. Although the evidence certainly tends to establish that defendant's workstation was in use at the relevant time, it does not conclusively establish that the defendant was the one using it.
"Phone records also reflect that a call was made from the business at a time that would virtually make it impossible for the defendant to have committed the crimes charged if he was the one making the call. The call was apparently personal to 'Sarah,' someone the defendant would call. Again this evidence strongly suggests that it could have been the defendant making the call, but it is not conclusive that it was the defendant making the call or that he was not involved in the crimes charged. The phone call lasted only one half of a minute."
"The defendant's adamant denial of fingerprints in the Escort when confronted with the officer's assertion that she found his prints in the car does tend to show that he believed himself to be innocent. However, the inference of defendant's innocence from such conduct was weakened by evidence introduced showing a pattern by the defendant of historically denying criminal activity just as adamantly, only to plead to the charges later on."
"Reviewing the totality of the evidence presented, the court finds the evidence to clearly fall short of proving the defendant committed the offenses charged. The fact that the investigation 'following the Escort' led to look-alike Orlando Espinosa, along with the fact that records of computer activity and phone calls tend to corroborate the defendant's presence at work during the relevant time period, strongly suggests that the defendant did not commit the charged offenses. The inference to be drawn from these records is that defendant was at work using his computer and making phone calls; not wiping a gun clean in a distant city.
"However, 'The terms of section 851.8(b)—precluding a finding of factual innocence "unless no reasonable cause exists"—impose an objective legal standard on both trial and appellate courts, and do not accommodate any exercise of [trial court] discretion to which the appellate court should defer.' (Adair, supra, at p. 908.) [Emphasis added.]"
"Therefore, this court cannot decide the matter based simply by drawing inferences and making deductions concluding the defendant was at work at the relevant time or that it probably was Orlando Espinosa that committed the offense.
"Other inferences and deductions that could reasonably be made include inferences from conduct tending to show a consciousness of guilt demonstrated by defendant's effort to get his uncle to fabricate, as well as defendant's various inconsistent statements under oath regarding his whereabouts the day before on Super Bowl Sunday; the inference that the defendant was not at work at the time based on the uncle's statement that the defendant was gone for an extended period of time that day, the uncle could find no one to confirm the defendant had been present at the relevant time despite asking employees, that others had access to defendant's computer and could have used it, and the fact that defendant has apparently enjoyed a great deal of support from family members when faced with criminal charges.
" 'Whether considered singly or collectively, the . . . facts and circumstances fail "to show that [no] reasonable cause exists to believe that [defendant] committed the offense" charged. . . .' The record must exonerate, not merely raise a substantial question as to guilt[.] (Adair, supra, at p. 90[9].) The record before this court fails to do so, and the Petition is therefore denied."
H031941
Defendant appealed from the trial court's order, contending that the court erred in denying his petition for a finding of factual innocence. He argued that the trial court misstated the evidence and made factual findings that were not supported by substantial evidence and that the court ignored other evidence that showed the improbability that defendant committed the charged offenses. He also argued that the trial court applied an incorrect standard. "The standard applied by the trial court required that the defendant prove there was no possible way he could have committed the crime. . . . Penal Code section 851.8 does not require this. It merely requires the petitioner to show that no objective factors exist that can justify the state subjecting the defendant to criminal prosecution. The trial court's errors of law and fact resulted in a denial of the benefits of the factual innocence provisions."
The Attorney General contended that the court did not err in finding that defendant failed to carry his burden of proving factual innocence. "[T]he evidence must exonerate [defendant] rather than raise a substantial question as to guilt." "The question, . . . under Adair, is whether no reasonable person looking at the evidence as a whole, would conclude that [defendant] committed the offenses for which he was arrested." "[Defendant] has not shown that no reasonable person could have believed that he was the passenger. He has show[n] only that there was a reasonable doubt that he was the passenger."
In response to our request for supplemental briefs from the parties, defendant "concede[d] that there was reasonable cause to believe that defendant committed the charged offenses at the time of his arrest." However, defendant contended that, because the facts disclosed subsequent to defendant's arrest showed that Officer Bacis's identification of him was mistaken, "the facts exonerate him and establish that the state should never have subjected him to the compulsion of the criminal law." The Attorney General contended that the facts do not establish that the state should never have subjected defendant to the compulsion of the criminal law.
Based on our independent review of the record, this court concluded that defendant met his initial burden of presenting a prima facie case for relief and that the burden shifted to the People "to show that a reasonable cause exists to believe that [defendant] committed the offense for which the arrest was made." (§ 851.8, subd. (b); Adair, supra, 29 Cal.4th at p. 904.) However, we could not discern from the trial court's statement of decision whether the trial court found that defendant carried his initial burden of presenting a prima facie case for relief, and therefore whether the trial court shifted the burden to the People to show that a reasonable cause exists to believe that defendant committed the offenses charged. (§ 851.8, subd. (b).) We remanded the matter to the trial court to permit the court to set forth its findings, keeping in mind the parties' respective burdens as stated in the statute (ibid.), our determination that defendant carried his initial burden of presenting a prima facie case, and the law. We also stated that the court retained discretion to hold an additional evidentiary hearing before issuing its new decision.
On remand, the ultimate determination to be rendered by the trial court was whether "facts subsequently disclosed . . . establish[ed] the defendant's innocence." (Adair, supra, 29 Cal.4th at p. 905, fn. 4.) For guidance on remand, we observed that the parties agreed that there was reasonable cause to believe that defendant committed the charged crimes at the time of his arrest and that, after reviewing the entire record, the trial court could not make "[a] finding of factual innocence . . . unless the court finds that no reasonable cause exists to believe that [defendant] committed the offense for which the arrest was made." (§ 851.8, subd. (b).) A finding of no reasonable cause means that the record exonerates defendant, that it does not merely raise a substantial question as to his guilt. (Adair, supra, at p. 909.)
Decision After Remand
The trial court met for informal discussions with the prosecutor and defense counsel, and the parties submitted supplemental briefs. In his supplemental brief, defendant contended that once he presented a prima facie case of innocence, the burden shifted to the People "to establish that a reasonable person could believe the defendant committed the crime," and that the trial court had not used this standard. He also contended that, although the trial court had made factual findings, some of its findings were "factually inaccurate." "Thus, no reasonable person could have a strong suspicion that [defendant] was the passenger in the red Ford Escort. He was at his desk in Monterey. We did not know who the passenger was until Mr. Lee told us in the report he gave to Deputy District Attorney Reed and her investigator on October 18, 2004. But now we know that [defendant] could not have committed the crime; and we know who did commit the crime."
In their supplemental brief, the People contended the court should find, "in light of all the evidence presented by the parties, that [defendant] has not proven both: (1) as a purely objective matter, that there would be no basis for a finding of probable cause to believe he committed the charged crime; and (2) apart from probable cause, that it is more likely than not that he did not commit that crime. Accordingly, [defendant] has not proven he is 'factually innocent,' as that term has been judicially construed and subsequently endorsed by the Legislature, and therefore the petition must be denied."
The trial court did not hold an additional evidentiary hearing before filing its 60-page decision after remand. In that decision, the court stated in pertinent part that it "finds that the evidence provides a rational conclusion that a reasonable cause exists to arrest the defendant based on eyewitness identification and his connection to the suspect vehicle. The court further finds that the evidence of alibi and third-party culpability introduced to prove innocence presented by the defendant can rationally and objectively be rejected. The court finds that, although the evidence permits a reasonable conclusion of third-party culpability that would exclude the defendant, the opposite conclusion is also reasonable under the evidence presented. The court finds that the evidence of alibi can be reasonably rejected as either inconclusive or concocted. Finally, the court finds that defendant's conduct and statements showing a consciousness of guilt, as well as his failure to produce critical evidence, strongly support a rational conclusion that the defendant is guilty. [¶] Based on these findings, the court denies the Petition."
"In the trial count's informal discussions with counsel, both defense and prosecuting counsel agreed that . . . had all the evidence presented at the hearing on the petition been introduced at a preliminary hearing and the magistrate held the defendant to answer to stand trial, the holding order would survive a Penal Code § 995 dismissal motion, and any appellate review. . . . Both counsel also agreed that if all the evidence introduced at the hearing on the petition were summarized in an affidavit to a search warrant, that the affidavit would provide probable cause justifying a search of the homes of both defendant and his doppelganger for evidence of the crime and enhancements. Furthermore, it is this court's observation that if all of the evidence from the hearing on the petition was presented prior to the case being submitted to a jury, the defendant's motion to dismiss under PC § 1118.1 would probably be denied as the jury could reasonably reject the evidence of alibi and third-party culpability leaving only evidence of the defendant's guilt, and that if the jury convicted, the same evidence would constitute substantial evidence to support the conviction on appeal. Finally, keeping in mind the law, it seems incongruous that the evidence in its totality would objectively justify subjecting the defendant to official action in the nature of issuing search warrants based on probable cause for both suspects' homes, holding the defendant to answer to stand trial based on a magistrate's finding of probable cause at preliminary hearing, denying a Penal Code § 1118.1 motion to dismiss based on the trial court's finding of substantial evidence to support a conviction in a criminal jury trial, thereby officially placing the defendant's destiny in the hands of a jury, and upholding a conviction on appeal based on the same finding of substantial evidence, and yet in the next breath find that the same evidence does not justify the act of simply arresting the defendant. (Footnotes omitted.)"
"The court finds that an objective assessment of the totality of the evidence presented at the hearing on the petition permits a reasonable interpretation that the alibi and third-party culpability evidence is inconclusive or concocted, that the defendant had the opportunity and motive to commit the offense for which he was arrested, and that Officer Bacis accurately identified him as the perpetrator. The evidence of guilt is strongly supported by defendant's conduct demonstrating a consciousness of guilt, as well as his failure to present particularly salient evidence. 'Whether considered singly or collectively, the . . . facts and circumstances fail "to show that [no] reasonable cause exists to believe that [defendant] committed the offense" charged. . . . The record must exonerate, not merely raise a substantial question as to guilt.' [Citation.] The record before this court fails to do so, and the petition is therefore denied."
DISCUSSION
On appeal, defendant makes the same contentions that he did to the trial court upon remand. He contends that, since he established a prima facie case, the burden shifted to the People to show that a reasonable cause exists to believe that he committed the offense for which the arrest was made. He contends that the trial court can make factual findings, but the court in this case "simply [rewrote] the script in [the] Decision [after Remand], seven years after the fact, and with no new evidence." He also contends that the trial court utilized the wrong standard in its initial decision, and that the decision after remand "does not repair the damage because it still fails to assign the burden of proof and apply the correct standard."
The Attorney General contends that defendant's petition was properly denied. "This Court found on the prior appeal that 'conflicting inferences can be drawn from this evidence.' That is still the case, and that is fatal to [defendant's] claim that he demonstrated a lack of reasonable cause." "[D]espite [defendant's] showing (which readily may be conceded) that some rational person could suspect the Escort's passenger was someone other than he, that does little or nothing to eliminate the objective point that at least one other reasonable person could draw 'conflicting inferences' and instead strongly suspect the person was [defendant]. By definition, the inexorable conclusion is that [defendant] did not meet his burden of actually proving a basis for an order under Penal Code section 851.8."
The Statute
Pursuant to section 851.8, subdivision (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 that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made." The trial court then conducts a hearing on the petition, at which "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 [People] to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made." (§ 851.8, subd. (b).) "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 as provided in subdivision (b)." (§ 851.8, subd. (c).) "A finding of factual innocence . . . 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." (§ 851.8, subd. (b).)
" '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. [Citation.]" (Adair, supra, 29 Cal.4th at p. 905, fn. omitted; see also People v. Matthews (1992) 7 Cal.App.4th 1052, 1056-1057 (Matthews).)
"By its terms, section 851.8 precludes the trial court from granting a petition ' unless the court finds that no reasonable cause exists to believe' the defendant committed the offense charged. (§ 851.8(b), italics added.) In other words, the trial court cannot grant relief if any reasonable cause warrants such a belief." (Adair, supra, 29 Cal.4th at p. 904.) "Accordingly, the statutory scheme establishes an objective standard for assaying factual innocence." (Id. at p. 905.) "A trial court must consider the material, relevant and reliable evidence a petitioner seeks to present before it can apply the requisite 'objective legal standard' to determine whether reasonable cause exists to believe the petitioner committed the offense." (People v. Chagoyan (2003) 107 Cal.App.4th 810, 818.) "The present tense 'exists' necessarily means that the existence of reasonable cause depends on the current evidence rather than simply the evidence that existed at the time that the arrest and prosecution occurred. 'In the context of a defendant who seeks a finding of factual innocence notwithstanding probable cause to arrest, facts subsequently disclosed may establish the defendant's innocence.' ([Adair, supra,]29 Cal.4th [at p.] 905, fn. 4.)" (People v. Laiwala (2006) 143 Cal.App.4th 1065, 1068, fn. 3 (Laiwala).)"A legal conclusion that there was 'no reasonable cause' to arrest in the context of section 851.8 clearly implies a predicate factual finding that the suspect was innocent [citation]." (Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1175 (Tennison).)
" ' "[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.]' [Citation.] 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 . . . .' [Citation.] In sum, the record must exonerate, not merely raise a substantial question as to guilt. [Citation.]" (Adair, supra, 29 Cal.4th at p. 909; see also Laiwala, supra, 143 Cal.App.4th at p. 1069; People v. Medlin (2009) 178 Cal.App.4th 1092, 1101 (Medlin).)To "exonerate" means "[t]o free from responsibility . . . . Cf. exculpate." (Black's Law Dict. (8th ed. 2004) p. 616, col. 1.; see also Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 154, fn. 5 ["We use the terms 'exonerated' and 'exoneration' to refer to the determination by investigating authorities that the suspect was in fact innocent"].) " 'Section 851.8 is for the benefit of those defendants who have not committed a crime. 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.]" (Adair, supra, 29 Cal.4th at p. 905; see also Matthews, supra, 7 Cal.App.4th at p. 1056 [a dismissal in the interests of justice (§ 1385) as defendant obtained here does not necessarily imply factual innocence]; Tennison, supra, 152 Cal.App.4th at p. 1175 [section 851.8 concerns "whether the evidence proves the defendant did not, in fact, commit a particular crime"].)
Standard of Review
As "the statutory scheme establishes an objective standard for assaying factual innocence, . . . 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." (Adair, supra, 29 Cal.4th at p. 905.) "[A]lthough 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. (§ 851.8, subd. (b)." (Adair, supra, at p. 897; Medlin, supra, 178 Cal.App.4th at p. 1101.) " ' " '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." ' " (Adair, supra, at p. 904; Laiwala, supra, 143 Cal.App.4th at p. 1069.) "This stringent standard of review is necessitated by a legislative 'intent to limit substantially the scope of relief under section 851.8' [Citation.]" (Medlin, supra, at p. 1101; Adair, supra, at p. 905.) "The terms of the statute do 'not accommodate any exercise of discretion to which the appellate court should defer.' [Citation.]" (Medlin, supra, at p. 1102; Adair, supra, at p. 908.)
"Since the statute precludes a finding of factual innocence if any reasonable cause exists to believe the defendant committed the charged offense, in the case of a denial both the trial court and the reviewing court make the same inquiry. This appears to conflate independent review with the substantial evidence test because the appellate court may approach its task in either of two ways: It may examine the record de novo to determine whether the defendant failed to meet the burden of 'show[ing] that no reasonable cause exists to believe' the defendant committed the charged offense [citations], or it may assess whether the trial court's conclusion to that effect is supported by substantial evidence. Whichever the choice, the analytical perspective is ultimately the same, and the statutory standard is satisfied." (Adair, supra, 29 Cal.4th at pp. 907-908; Laiwala, supra, 143 Cal.App.4th at p. 1069; see also People v. Bleich (2009) 178 Cal.App.4th 292, 303 ["because on this record we cannot conclude the evidence completely exonerates appellant, we independently conclude the trial judge properly denied appellant's petition for a finding of factual innocence"]; Medlin, supra, 178 Cal.App.4th at p. 1104 [the appellate court independently reviewed of "all of the evidence available to the prosecution" before finding that it "cannot conclude that 'no objective factors justified official action"].)
Analysis
In this case, based on our independent review, we conclude that the trial court properly found that the People sustained its burden "to show that a reasonable cause exists to believe that [defendant] committed the offense for which the arrest was made." (§ 851.8, subd. (b); see Adair, supra, 29 Cal.4th at p. 905; Matthews, supra, 7 Cal.App.4th at p. 1056.) The trial court properly concluded that it could not make "[a] finding of factual innocence . . . unless [it found] that no reasonable cause exists to believe that [defendant] committed the offense for which the arrest was made." (§ 851.8, subd. (b).) A finding of no reasonable cause means that the record exonerates defendant, that it does not merely raise a substantial question as to his guilt. (Adair, supra, at p. 909.)
The trial court found that "the evidence of alibi and third-party culpability introduced to prove innocence presented by the defendant can rationally and objectively be rejected. The court [found] that, although the evidence permits a reasonable conclusion of third-party culpability that would exclude the defendant, the opposite conclusion is also reasonable under the evidence presented. The court [found] that the evidence of alibi can be reasonably rejected as either inconclusive or concocted. Finally, the court [found] that defendant's conduct and statements showing a consciousness of guilt, as well as his failure to produce critical evidence, strongly support a rational conclusion that the defendant is guilty."
In this case, we have determined the following from our de novo consideration of the record. (Adair, supra, 29 Cal.4th at p. 905.) The Escort, which had a license plate belonging to a Honda, was seen at the residence of a known Norteño gang member. Defendant has gang tattoos and had previously admitted being a Norteño gang member. Defendant was initially identified as the passenger in the Escort by Officer Bacis, a police officer who pursued the Escort and who had an unobstructed and clear view of the passenger. Officer Bacis testified that even after he saw a photo of Espinosa, another suspect who looked very similar to defendant, he stood by his identification of defendant. Although Officer Bacis also testified that, if photographs of both defendant and Espinosa had been in the photographic lineup shown to him by Officer Burnett, he would have picked out both photographs and he would then have investigated both suspects in order to try to eliminate one, and although other evidence that defendant asserted pointed to his innocence subsequently came to light, Officer Bacis testified he still believed that defendant "look[ed] like the passenger that was in the vehicle that I saw that day."
Defendant admitted knowing the suspected driver of the Escort, Garcia, and the driver's girlfriend, Sanchez. Sanchez was the registered owner of the Honda from which the license plate on the Escort came. Officer Burnett, another officer who pursued the Escort, testified that Garcia looked like the driver of the Escort and that defendant looked like the passenger, which testimony would tend to corroborate Officer Bacis's identification of defendant as the passenger in the Escort. Officer Burnett also testified that when she put together photos of defendant and Espinosa, the other suspect, she "could hardly tell them apart." Defendant was eliminated as the donor of some of the DNA found on the red bandana thrown from the Escort, but neither he nor Espinosa could be ruled out as a contributor of other DNA found on the bandana, and the latent fingerprints found on the Escort did not match either defendant or Espinosa. Munoz, the person who saw the Escort being abandoned in front of his home, testified at the preliminary hearing that defendant was not one of the men from the car, but Espinosa, the only other suspect, appears to look very similar to defendant, and Munoz was never shown a photo of Espinosa.
Defendant argues that Espinosa was more likely to have been the passenger in the Escort because Espinosa admitted knowing both the Escort's owner, Martinez, and Sexton, the person associated with the address where the Escort was seen. However, Martinez claimed that the Escort had broken down and he had abandoned it a few days prior to the incident, which evidence would reasonably eliminate Espinosa's connection to the Escort at the time of the incident. Defendant also presented evidence concerning a telephone call to his friend, Gracia, from defendant's place of work during the relevant time period, but Gracia's declaration affirming the investigator's notes concerning the call does not conclusively establish that defendant made the call to Gracia or that defendant actually talked to Gracia or left her a message during the call. Defendant's employer, his uncle, testified that defendant was at work that day but he could not positively account for defendant's whereabouts at the time the Escort was seen and pursued, and neither could any other of the uncle's employees. Defendant's uncle told an officer that defendant left the business and was out of the office for a while on the afternoon at issue, returning late in the afternoon, and that he did not know where defendant was or what defendant was doing during the time defendant was out of the office. Although defendant's computer workstation was being used at the time of the offenses, other people in the office had access to the computer and had used it in the past in order to do the downloading the computer showed was being done at the time of the offenses. Defendant did not produce a copy of the email that was sent from the computer at 5:35 p.m., which could have been produced if it was at all helpful to defendant's position. Defendant previously denied on several occasions being involved in other criminal conduct before later pleading guilty to charges stemming from the conduct; he gave conflicting testimony regarding his whereabouts on the day before the incident, which would call his credibility into question; and his mother asserted that he was with her on the day of the incident, even though there was no other evidence to support her claim.
Many conflicting inferences can be drawn from this record. The trial court concluded "that an objective assessment of the totality of the evidence presented at the hearing on the petition permits a reasonable interpretation that the alibi and third-party culpability evidence is inconclusive or concocted, that the defendant had the opportunity and motive to commit the offense for which he was arrested, and that Officer Bacis accurately identified him as the perpetrator. The evidence of guilt is strongly supported by defendant's conduct demonstrating a consciousness of guilt, as well as his failure to present particularly salient evidence. 'Whether considered singly or collectively, the . . . facts and circumstances fail "to show that [no] reasonable cause exists to believe that [defendant] committed the offense" charged. . . . The record must exonerate, not merely raise a substantial question as to guilt.' [Citation.] The record before this court fails to do so. . . ."
The trial court concluded that the People met its burden to show "that a reasonable cause exists to believe that [defendant] committed the offense." (§ 851.8, subd. (b); Adair, supra, 29 Cal.4th at pp. 907-908.) The parties agree that there was reasonable cause to believe that defendant committed the charged offenses at the time of his arrest and at the time of the preliminary hearing. Facts subsequently disclosed did not establish defendant's innocence (id., at p. 905, fn. 4). That is, although the record raised a substantial question as to defendant's guilt, the record did not exonerate defendant (id. at p. 909).
Based on our independent standard of review and our de novo consideration of the record, we conclude that the record supports the trial court's ruling. (Adair, supra, 29 Cal.4th at p.905; cf. Ortega v. Superior Court (1982) 135 Cal.App.3d 244, 257 [when determining reasonable cause, the appellate court is not at liberty to select from available inferences].)
DISPOSITION
The order of November 23, 2010, denying defendant's petition for a finding of factual innocence under Penal Code section 851.8 is affirmed.
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: MIHARA, J. WALSH, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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