Opinion
G051990
02-21-2017
THE PEOPLE, Plaintiff and Respondent, v. KELLY BUTTS HOWARD AND STEVEN LEE HOWARD, Defendants and Appellants.
Richard Schwartzberg for Defendants and Appellants. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor, Alana Cohen Butler, and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13HF2650) OPINION Appeal from an order of the Superior Court of Orange County, Robert C. Gannon, Judge. Reversed and remanded with directions. Richard Schwartzberg for Defendants and Appellants. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor, Alana Cohen Butler, and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Kelly Butts Howard and Steven Lee Howard appeal from an order denying their petition for a finding of factual innocence after the court had dismissed this case in the furtherance of justice upon the application of the prosecuting attorney. (Pen. Code, §§ 851.8, subd. (c) & 1385, subd. (a).) We conclude the alleged victim had no right to oppose the petition, and we reverse and remand with directions to grant the petition.
FACTS AND PROCEDURAL HISTORY
1. The Civil Cases
Tamara Bailey founded Bailey and Associates Manufacturers Rep Inc. (BAMRI) in 1992. Bailey hired Steven to work for BAMRI in 2001, and made him a partner in 2003. By 2004, Steven controlled BAMRI's day-to-day business and finances. Kelly is Steven's wife.
In the fall of 2009, a business dispute arose and Bailey locked Steven out of BAMRI's office. Steven responded by filing two related civil complaints against Bailey and BAMRI. Bailey filed cross-complaints in which she alleged the Howards had converted BAMRI assets to their own use and engaged in other wrongful conduct. 2. The Criminal Case
The two civil cases were Orange County Superior Court case numbers 30-2009-00315225 and 30-2009-00315229. On our own motion we take judicial notice of these court records. (Evid. Code §§ 452, subd. (d) & 459, subd. (a).)
In July 2010, Bailey filed a police report which repeated many of the claims alleged in her civil case cross-complaints. She told Irvine Police Department Investigator Karen Davies she suspected the Howards had embezzled funds from BAMRI. Based upon Bailey's statements and documents Bailey provided, Davies prepared a police report, a search warrant affidavit, and a declaration in support of increased bail.
In August 2013, the Orange County District Attorney filed a criminal complaint charging the Howards with embezzlement, fraudulent use of an access card, and forgery, and falsification of BAMRI business records.
However in July 2014, the prosecutor, Nagy Morcos, contacted Bailey and her attorney to advise them he intended to ask the court to dismiss all of the charges against the Howards. Morcos had based the charges on the statements and documents Bailey had given Davies, but he had since learned Bailey had given conflicting deposition testimony in the civil cases that materially undermined her credibility.
At a hearing on August 25, Morcos requested the court to dismiss all of the charges against the Howards for insufficiency of the evidence, instead of proceeding with the scheduled preliminary examination.
Bailey appeared through counsel, Kevin Harr, and opposed the request to dismiss. Harr requested a brief continuance for the purpose of providing the district attorney with additional documents, and to "confer with someone else . . . in the prosecutor's department so that they actually review the materials that we provided so that they can make an informed and fair decision . . . ."
Morcos told the court he had already reviewed several banker's boxes of documents provided by Bailey, and in his estimation, Bailey was trying to "D.A. shop and . . . bully [her] way past the system . . . ."
Harr mused that while Bailey did not have "any standing or say in the merits of the motion to dismiss," Harr felt entitled to submit additional discovery on behalf of Bailey and to have it reviewed by a second district attorney.
The court denied Bailey's request for a continuance and acknowledged her objection, but granted the People's request to dismiss all charges. 3. The Factual Innocence Petition and Hearings
The Howards then filed a petition for a finding of factual innocence. (Pen. Code, § 851.8 (section 851.8).) They claimed Bailey had falsely accused them of wrongdoing. Their attorney, Courtney Pilchman, submitted a declaration which stated Morcos had once told her that if he had seen the Bailey deposition testimony taken by the Howards in the civil cases he would "have never filed any charges" against the Howards.
Morcos appeared at the hearing on the Howards' petition. He neither opposed their petition nor disavowed Pilchman's recollection of what he had said.
Harr appeared for Bailey and sought to submit written opposition, together with more than 200 pages of documents, including Davies's police report, search warrant affidavit, and increased bail declaration. He cited Marsy's Law (Proposition 8, the Victims' Bill of Rights Act of 2008, Cal. Const., art. I, § 28) and argued Bailey had standing to oppose the petition, and to obtain discovery pertinent to the ongoing civil cases that would be destroyed by a successful petition.
Once granted, a petition for a finding of factual innocence results in the destruction of all records of the "the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner," and any records held by a "local, state, or federal agency, person or entity." (Pen Code, § 851.8, subd. (b).) --------
Pilchman argued Marsy's Law does not allow "an alleged victim an opportunity to sit in the position of the District Attorney's office and make any sorts of arguments as to why my client should or should not be granted [factual] innocence." Pilchman asserted Bailey was no longer an alleged victim because the case had been dismissed, and Bailey's opposition to the petition was a thinly-veiled attempt to influence the outcome of the civil cases.
The court questioned Bailey's standing to "appear after a petition seeking relief under [section] 851.8 has been filed." But the court permitted Bailey to file her opposition and submit her documents, and took the matter under submission.
In December 2014, the court issued a minute order ruling. The court found Bailey had standing to oppose the petition under Marsy's Law. The court denied the petition, based solely on Bailey's opposition and documents, and concluded the Howards had failed to meet their burden to demonstrate, "that no [']reasonable cause['] exists to believe that the party committed the offense for which the arrest was made."
Nevertheless, in January 2015, the court vacated its ruling and took the petition off calendar subject to any additional filing by the "People and [or] petitioner."
On March 25, the court held another hearing on the petition. Pilchman again appeared for the Howards and filed a declaration from Davies which explained all of the information she used to prepare the police report and affidavits for the arrest warrant and bail motion had come from Bailey. Sometime later, according to Davies, the prosecuting attorney told her defense discovery in the civil cases revealed Bailey had "made false representations of material facts" during the criminal investigation. Davies declared, "Had I known about the false representations I would not have authored the affidavit for the arrest warrant and affidavit for the [bail] motion."
Morcos appeared for the People, and again did not oppose the petition.
Attorney James T. Grant appeared for Bailey. Grant opposed the petition, and asked the court not to rule on it for 90 days pending the outcome of the trial in the civil cases which was then set to commence on June 1.
Pilchman renewed her standing objection.
The court reaffirmed its earlier ruling and again denied the petition based solely on Bailey's opposition and documents. The court concluded Marsy's Law applied to Bailey as the alleged crime victim and, as a result, Bailey had the right to participate in the hearing and to oppose the petition. The Howards appealed.
DISCUSSION
The court erred for three separate and sufficient reasons when it concluded Bailey had the right to participate in the hearing and to oppose the Howards' petition for factual innocence. First, section 851.8 requires the court to determine factual innocence based upon declarations, affidavits, police reports and other evidence submitted by the parties, not alleged victims. Second, Marsy's Law does not apply to factual innocence proceedings. Third, after this case was dismissed Bailey was no longer a crime victim within the meaning of Marsy's Law. We will discuss each of these reasons in turn. 1. Factual Innocence Must Be Decided On Evidence Submitted By The Parties.
"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." (Pen Code, § 851.8, subd. (c).) "[A]ny judicial determination of factual innocence . . . may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties . . . ." (Pen Code, § 851.8, subd. (b), italics added.)
"The parties to a criminal action are the People, in whose sovereign name it is prosecuted, and the person accused [citations]; the victim of the crime is not a party [citation]." (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 (Dix).) Furthermore, nothing in Marsy's Law "allows the victim to substitute in and replace the role of the prosecutor." (People v. Subramanyan (2016) 246 Cal.App.4th Supp. 1, 7; cf. People v. Punzalan (2003) 112 Cal.App.4th 1307, 1311 [police have no standing to appeal].)
In short, section 851.8 requires the court to determine factual innocence based upon declarations, affidavits, police reports or other evidence submitted by the parties, not the alleged victims. Therefore, we conclude the court erred as a matter of law when it denied the petition based solely upon the documents submitted by Bailey. 2. Marsy's Law Does Not Apply To Factual Innocence Proceedings.
The Attorney General asserts Marsy's Law applies to factual innocence proceedings and thus Bailey had the right to participate in the hearing and the right to oppose the Howards' petition. We are not persuaded.
Marsy's Law amended the California Constitution to give victims certain rights in specific criminal proceedings, including the right "[t]o be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue." (Cal. Const., art. I, § 28, subd. (b)(8).)
Marcy's Law did not mention factual innocence proceedings specifically. Plainly a factual innocence proceeding is not, "a post-arrest release decision, plea, sentencing, [or] post-conviction release decision . . . ." (Cal. Const., art. I, § 28, subd. (b)(8).) So the question boils down to whether a factual innocence proceeding is, a "proceeding in which a right of the victim is at issue." (Ibid.)
We consider this question under the de novo standard of review, applying familiar principles of statutory and constitutional interpretation. (Santos v. Brown (2015) 238 Cal.App.4th 398, 409 (Santos).) "'We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole." (Ibid.)
"'[P]roceeding' is a 'malleable term' the meaning of which depends on the context in which it is used. [Citation.]" (Santos, supra, 238 Cal.App.4th at p. 416.) All of the proceedings mentioned in Marsy's Law are impending, pending or post-conviction criminal proceedings. (See, e.g., Cal. Const., art. I, § 28, subds. (b)(3) [bail and pretrial release],(b)(5) [victim interview], (b)(6) [arrest, charging, extradition and pretrial disposition], (b)(7)[parole or other post-conviction release], (b)(8) [post-arrest release, plea and sentencing], (b)(9) [trial], (b)(10) [sentencing].) This makes sense. In all of these proceedings, a right of the alleged victim is squarely at issue and must be protected.
In contrast, Marsy's Law does not mention any post-acquittal or post-dismissal proceedings. This too makes sense. Post-acquittal or post-dismissal proceedings are qualitatively different. Once the case has concluded in the defendant's favor, the rights of the alleged victim are no longer at issue. Instead, the focus shifts to the rights of the defendant. Along these lines, "'[section 851.8] 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. . . ." (People v. Adair (2003) 29 Cal.4th 895, 905.) In effect, a petition for factual innocence is a proceeding to correct an injustice.
All told, considering the relevant language in Marsy's Law and giving the words their ordinary meaning in the context of the initiative as a whole, we conclude the voters intentionally decided not to give victims the right to be heard in factual innocence proceedings. "[T]he language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we . . . adopt a construction 'that will effectuate the voters' intent, giv[ing] meaning to each word and phrase, and avoid[ing] absurd results. [Citations.]' [Citation.]" (Santos, supra, 238 Cal.App.4th at p. 409.)
Our conclusion Marsy's Law does not apply to factual innocence proceedings is buttressed by Santos. Santos considered the application of Marsy's Law to executive clemency proceedings. The court first observed the executive clemency laws were not added or amended by Marsy's Law. The court next noted, "Marsy's Law mentions only 'parole' and 'other' post-conviction proceedings or decisions that are part of the 'criminal justice system.'" (Santos, supra, 238 Cal.App.4th at p. 413.)
Santos concluded the voters intentionally decided not to give victims the right to be heard in executive clemency proceedings, based on the fact that Marsy's Law amended the parole statutes but did not amend any of the executive clemency statutes, and because the electorate is presumed to be aware of existing laws. (Santos, supra, 238 Cal.App.4th at pp. 420-422.) Hence, "Marsy's Law cannot be construed to apply to commutations granted as a matter of executive clemency." (Id. at p. 425.)
Similarly, Marcy's Law did not add or amend any part of section 851.8, including subdivisions (b) and (c) which govern the rights and obligations of the law enforcement agency, the prosecuting attorney and the defendant in factual innocence proceedings, but make no reference to the alleged victim. To paraphrase Santos, "We deem the voters to have been aware that no [factual innocence] statute gave victims a right to notice or opportunity to be heard before the [court] grants a [petition for factual innocence]. The voters' choice not to amend the [factual innocence] statute[] to add such procedures is telling." (Santos, supra, 238 Cal.App.4th at p. 422.)
Our conclusion that Marsy's Law does not apply to factual innocence proceedings is also supported by separation of powers principles. (See Santos, supra, 238 Cal.App.4th at p. 414.) The public prosecutor initiates and conducts all aspects of criminal proceedings on behalf of the People. (People v. Eubanks (1996) 14 Cal.4th 580, 589.) "No private citizen, however personally aggrieved, may institute criminal proceedings independently [citation], and the prosecutor's own discretion is not subject to judicial control at the behest of persons other than the accused. [Citations.]" (Dix, supra, 53 Cal.3d at p. 451.) The prosecutor's discretionary powers would be undermined if the alleged crime victim had the right to participate in factual innocence proceedings.
For all of these reasons, we hold Bailey had no right to participate in the hearing and no right to oppose the Howards' petition for factual innocence. 3. After The Case Was Dismissed Bailey Was No Longer A Victim Under Marsy's Law.
The court concluded Bailey was a victim under Marsy's Law, even after this case was dismissed. We disagree.
"As used in [Marsy's Law] a 'victim' is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act." (Cal. Const., art. I, § 28, subd. (e).) But again we must give these words their ordinary meaning and construe them in the context of the initiative as a whole. (Santos, supra, 238 Cal.App.4th at p. 409.) And the term victim, like the term proceeding, "is a 'malleable term' the meaning of which depends on the context in which it is used. [Citation.]" (Id. at p. 416.)
Once more, the contexts in which Marsy's Law uses the term victim are all impending, pending or post-conviction criminal proceedings, and there is no mention of any post-acquittal or post-dismissal proceedings. This leads us to conclude that once a case has concluded in the defendant's favor, the alleged victim is no longer a victim within the meaning of Marsy's Law. So after this case was dismissed Bailey had no right to participate in the hearing or to oppose the Howards' petition for factual innocence.
DISPOSITION
The court's order denying the Howards' petition for a finding of factual innocence is reversed and the matter is remanded with directions to grant their petition.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.