Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI024443, Jules E. Fleur et, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
After a jury trial, defendant and appellant Alonzo E. Higuera was acquitted of charges of rape (Pen. Code, § 261, subd. (a)(2)), sodomy (§ 286, subd. (c)(2)), and sexual penetration by force (§ 289, subd. (a)(1)). Defendant filed a motion for a finding of factual innocence, pursuant to section 851.8. The trial court denied the motion.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal.
PROCEDURAL BACKGROUND
Defendant was charged by information with rape (§ 261, subd. (a)(2)), sodomy (§ 286, subd. (c)(2)), and sexual penetration by force (§ 289, subd. (a)(1)). After the evidence was presented to a jury, defendant moved the trial court for an acquittal based on insufficient evidence, pursuant to section 1118.1. The motion was denied. The jury subsequently acquitted defendant of all charges.
After trial, defendant filed a motion for a finding of factual innocence, pursuant to section 851.8. In support of his motion, defendant referenced the jury’s acquittal, the evidence presented at trial, and the preliminary hearing transcript. He filed a declaration from defense counsel, stating that she believed he was innocent, based on her review of the evidence, her relationship with him, and the investigation done by her office. Defendant also filed nearly identical declarations from three jurors, in which they essentially expressed the belief that he was innocent. The People filed an opposition to the section 851.8 motion, arguing that defendant had not met his burden under section 851.8 of showing that no reasonable cause existed to believe that he committed the offense for which the arrest was made. The People also argued that since the trial court had already denied a motion under section 1118.1 for an acquittal for insufficient evidence, it should likewise deny the motion for a finding of factual innocence.
At the hearing on the motion, the trial court stated that if the prosecutor had concurred in the motion for a finding of factual innocence, the trial court would have had no problem granting the relief, in light of defendant’s age, his lack of a criminal record before and after the charged offenses occurred, and the circumstances of the case. The trial court noted that, in support of the motion, defendant merely filed declarations by the jurors and defense counsel, and referenced the acquittal by the jury and the preliminary hearing transcript. The trial court reviewed the facts of the case and summarized that the case boiled down to a witness who saw defendant naked on top of the alleged victims and heard at least one of the victims seemingly protest. There was also evidence of injury consistent with nonconsensual sex. The trial court noted that defendant was intoxicated at the time the offenses occurred and could not remember what happened; thus, defendant did not admit or deny committing the offenses. The trial court further noted that the victims were also intoxicated at the time, and their testimonies were not particularly credible. The trial court remarked that it was easy to see how the jury would have acquitted defendant. However, an acquittal, pursuant to a beyond a reasonable doubt standard, was not the equivalent of factual innocence. The trial court further noted that it denied the section 1118.1 motion, and that, if the jury had found defendant guilty, there would have been enough evidence to sustain the conviction on appeal. The trial court then stated that there had to be no reasonable cause to believe defendant committed the offenses(s) in the first place, and that the trial court was not permitted by law to make a finding of factual innocence based on a jury’s acquittal. The trial court concluded that it would be an abuse of discretion to grant the requested relief on the record before it, and it denied the motion.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and one potentially arguable issue—whether the trial court erred in finding it had no discretion to deny the motion for a finding of factual innocence, in light of defendant’s lack of criminal history, the circumstances of the case, and the alleged victims’ conduct. Counsel has also requested that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.