Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 97WF1728 , Thomas J. Borris, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Aronson, J., and Ikola, J.
Appellant Mark Wilson was convicted of two counts of failing to register as a sex offender pursuant to Penal Code section 290. After the trial court dismissed his convictions as a result of his “Motion [ ] to vacate the judgment (Writ of Coram Nobis)” and the Supreme Court’s decision in People v. Hofsheier (2006) 37 Cal.4th 1185, Wilson filed a petition seeking a finding of factual innocence pursuant to section 851.8. The superior court denied the petition and Wilson contends that once his convictions were dismissed because the law on which his convictions were based was declared unconstitutional, he was entitled to finding of factual innocence. The superior court’s ruling denying Wilson’s petition is affirmed.
All further references are to the Penal Code unless otherwise stated.
FACTS
The underlying facts of the case are not in dispute. The procedural facts of this case began in 1991 when appellant, Mark Wilson, pleaded guilty to oral copulation of a minor in violation of subdivision (b)(1) of section 288a in case number C83824. Although a conviction of section 288a required mandatory registration pursuant to subdivision (a)(1)(A) of section 290 at the time Wilson was sentenced, according to Wilson, the registration advisement on his plea-form was crossed-out. Nonetheless, according to Wilson, upon his release from the Department of Corrections, he was advised of the mandatory registration requirement.
Currently Penal Code section 290, subdivision (b).
In 1997 and again in 2001, Wilson pleaded guilty in superior court case numbers 97WF1728 and 01NF3181 to failing to register as a sex offender pursuant to section 290. Five years after Wilson’s last conviction for failing to register, the Supreme Court’s decided People v. Hofsheier, supra, 37 Cal.4th 1185, which holds that it is a violation of the equal protection clause to require mandatory sex offender registration for a person convicted of non forcible oral copulation with a person under 18 (the same offense as Wilson’s conviction) because mandatory registration is not required for similarly situated individuals convicted of non forcible unlawful sexual intercourse with a person under 18. (Pen. Code, § 261.5, subd. (a).) The Supreme Court ordered the case remanded to the trial court with directions to remove the mandatory registration requirement and for the trial court to consider whether the defendant should be required to register pursuant to the discretionary registration requirement currently renumbered in section 290.006. (People v. Hofsheier, supra, 37 Cal.4th at p. 1209.)
As a result of the Supreme Court’s decision in Hofsheier, Wilson filed a petition for a writ of habeas corpus seeking to be relieved of the mandatory registration requirement. Although there is no indication that Wilson was in actual or constructive custody at the time he filed the petition in 2006, the superior court granted the petition and then went much further than the Supreme Court and totally relieved Wilson of his obligation to register, without any indication of whether Wilson should be required to register under the discretionary sex offender registration statute. (People v. Castellanos (1999) 21 Cal.4th 785, 788-791; People v. Garcia (2008) 161 Cal.App.4th 475, 486; § 290.023 (sex offender registration statutes to be imposed retroactively).)
After the superior court relieved Wilson of his obligation to register, he filed a petition for a writ of habeas corpus in the superior court seeking to vacate his registration convictions in superior court case numbers 97WF1728 and 01NF3181. The superior court denied the petition on the basis that the court lacked jurisdiction to grant relief because Wilson was no longer in actual or constructive custody on either case.
Next, Wilson filed a “petition and application for relief under coram nobis, or in the alternative, Penal Code section 851.8, and/or Penal Code section 1385. [Capitalization omitted.]” With respect to the portion of the petition seeking “relief under coram nobis,” the superior court denied the petition and explained that “[a] change of law many years later does not constitute the requisite unknown fact which would have prevented rendition of judgment, nor is it extrinsic to the merits of the issues tried. As a result, coram nobis relief is denied.” The superior court also denied relief pursuant to section 851.8 and stated, “[o]n its face, Penal Code section 851.8 does not allow a defendant who has been convicted of an offense to seek a finding of factual innocence. The sole exception established by case law is inapplicable here. (People v. McCann (2006) 141 Cal.App.4th 347.)” To complete the trifecta, the superior court also denied Wilson’s request for relief pursuant to section 1385 on the basis that “[n]o authority exists for a post-judgment grant of relief under Penal Code section 1385.”
Although the superior court denied all three claims for relief, on its own motion, the court requested briefing on the retroactivity of the Supreme Court’s decision in People v. Hofsheier and calendared the matter for further proceedings “to determine if [the] defendant is entitled to have his failure-to-register convictions in cases 97WF1728 & 01NF3181 set aside by means of a non-statutory motion to vacate, or other appropriate vehicle.”
Before the hearing, Wilson filed a motion to vacate the judgment of his registration convictions. At the hearing, the district attorney conceded that Hofsheier is retroactive and that Wilson is “entitled to relief from his 290 convictions.” Although the same trial court had already denied Wilson’s earlier petition for a writ of error coram nobis on the basis that he failed to demonstrate any of the criteria that would entitle him to relief, the minute order of the hearing states, “Motion by Defense to vacate judgment (Writ of Coram Nobis) was heard [¶] Motion granted. [¶] Court orders State Prison sentence vacated. [¶] Defendant’s motion to withdraw guilty plea to count(s) 1, 2 granted. [¶] Motion by Defense to dismiss [¶] Motion granted. [¶] Case dismissed – Other reason.” (Emphasis and capitalization omitted.)
After the superior court ordered his convictions dismissed, Wilson filed a second petition seeking to seal and destroy his arrest records in case number 97WF1728. On appeal, Wilson challenges the superior court’s ruling that section 851.8 does not authorize a finding of factual innocence if the defendant was convicted of the crime of which he seeks a finding of factual innocence.
Although Wilson represents that the trial court vacated both of his registration convictions, the petition which is the subject of this appeal only sought relief with respect to his conviction in superior court case number 97WF1728.
DISCUSSION
Based on the reporter’s transcript of the hearing of Wilson’s petition, it appears the trial court that considered the petition may have misunderstood that Wilson was seeking a finding of factual innocence of the underlying oral copulation offense from 1991. Regardless of the superior court’s misunderstanding, we review the record de novo. “On appeal, we independently review the record to determine whether appellant sustained [his] burden of showing no reasonable cause exists to believe that [he] committed the charged offense.” (People v. Bleich (October 9, 2009, D053808) ___ Cal.App.4th ____ [2009 WL3234785].)
Subdivision (c) of section 851.8 states that “[i]n 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.” If the court makes a finding that the petitioner is factually innocent, the court “shall grant relief as provided in subdivision (b)” which consists of sealing and destruction of the petitioner’s arrest records.
The full text of section 851.8, subdivision (c) states, “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. A copy of the petition shall be served on the prosecuting attorney of the county or city in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner's factual innocence. The prosecuting attorney may present evidence to the court at the hearing. The hearing shall be conducted as provided in subdivision (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).”
The full text of 851.8, subdivision (b) states, “If, after receipt by both the law enforcement agency and the prosecuting attorney of a petition for relief under subdivision (a), the law enforcement agency and prosecuting attorney do not respond to the petition by accepting or denying the petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then the petition shall be deemed to be denied. In any case where the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, petition may be made to the superior court that would have had territorial jurisdiction over the matter. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense at least 10 days prior to the hearing thereon. The prosecuting attorney and the law enforcement agency through the district attorney may present evidence to the court at the hearing. Notwithstanding Section 1538.5 or 1539, any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant and reliable. 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 any court hearing to determine the factual innocence of a party, 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 respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made. If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order 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 for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy the records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy such records. The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy the records, unless otherwise provided in this section. The court shall give to the petitioner a copy of any court order concerning the destruction of the arrest records.”
Based on the plain language of the statute, Wilson is not entitled to a factual finding of innocence because he was convicted of his crime. The Legislature could have provided for relief for individuals pardoned by the governor or whose conviction was reversed on appeal, but it does not. According to Wilson, even though the statute does not expressly allow the court to make a factual finding of innocence, he asks this court to find that his case falls within the exception articulated in People v. McCann, supra, 141 Cal.App.4th 347. According to Wilson, in order to avoid an equal protection violation, section 851.8 must be construed to provide relief to persons convicted at trial and whose conviction was reversed on appeal or dismissed in the trial court.
In People v. McCann, the defendant was convicted in a court trial of two felony counts of practicing medicine without a license. The Court of Appeal reversed the conviction and held that “McCann could not have violated [Bus. & Prof. Code] section 2053 because he had a valid license to practice medicine at all relevant times.” (People v. McCann, supra, 141 Cal.App.4th at p. 351.) As a result of the reversal and receipt of the remittitur, the trial court dismissed the charges and McCann filed a petition pursuant to section 851.8 for a finding of factual innocence.
Despite the fact that section 851.8 does not apply to a person who has been convicted, McCann held that “[b]ecause ‘an appellate ruling of legal insufficiency is functionally equivalent to an acquittal’ for double jeopardy purposes [Citation], it follows that, for equal protection purposes, appellate acquittals for insufficient evidence and trial acquittals should be treated the same under section 851.8.” (People v. McCann, supra, 141 Cal.App.4th at pg. 355.) The Court of Appeal concluded that McCann had a right to seek relief under section 851.8 and remanded the case with directions to grant McCann’s petition for a finding of factual innocence. (Id., at pg. 359.)
Using the same rationale as the court in McCann, Wilson contends that when the trial court dismissed his convictions, he was entitled to a factual finding of innocence “just as would an acquittal by a jury or reversal by an appellate court for insufficiency of the evidence.” According to Wilson, once his underlying obligation to register as a sex offender was dismissed because it was unconstitutional, “there was [in]sufficient evidence to support a conviction for failing to register under section 290” and therefore he was entitled to a finding of factual innocence.
But Wilson has not received an appellate ruling that the evidence in his case was insufficient to constitute a conviction, or an acquittal by the trier of fact to come within the exception announced in McCann. Wilson’s convictions were vacated based on a constitutional claim in People v. Hofsheir that decided that it was unfair to require mandatory registration for individuals convicted of non forcible oral copulation with a person under 18 because the same registration requirement was not mandatory for individuals convicted of non forcible intercourse with a person under 18.
An acquittal or reversal alone, are not the equivalent of proving factual innocence. (People v. Adair, supra, 29 Cal.4th at p. 905.) A reversal by a reviewing court that the statute of limitations precludes prosecution or “[t]he jury’s verdict, which simply indicates that the prosecution did not prove the defendant’s guilt beyond a reasonable doubt, does not directly address whether [the defendant] committed the charged offense.” (People v. Scott M. (1985) 167 Cal.App.3d688, 698-699; disapproved on another point in People v. Adair, supra, 29 Cal.4th 895.)
Pursuant to subdivision (b) of section 851.8, the petitioner has the burden of proof “to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” At the hearing on Wilson’s petition, Wilson explained that he was entitled to a factual finding of innocence because the superior court dismissed his prior conviction. Wilson argued that when the People did not oppose his motion to dismiss and the trial court determined that his convictions were unconstitutional and had been entered in error, he satisfied his burden as required in subdivision (b).
We disagree. Based on the petition filed in the superior court and the transcript of the hearing, Wilson failed to explain why he was factually innocent of the crime for which he was arrested, and therefore failed to sustain his burden. In the context of considering the fundamental miscarriage of justice exception that permits review of otherwise procedurally barred claims, the U.S. Supreme Court explained, “[t]he present case requires us to further amplify the meaning of ‘actual innocence’ in the setting of capital punishment. A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the State has convicted the wrong person of the crime.” (Sawyer v. Whitley (1992) 505 U.S. 333, 340.) “Typically, to establish actual innocence a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” (U.S. v. Mikalajunas (1999) 186 F.3d 490, 494.)
When considering the choice of remedies for the equal protection violation in Hofsheier, the Supreme Court considered which alternative the Legislature would prefer between invalidating the mandatory registration requirement for individuals convicted of voluntary oral copulation with a person under 18, or treating individuals convicted of voluntary intercourse with a person under 18 the same as persons convicted of voluntary oral copulation and imposing the same mandatory registration requirement. (People v. Hofsheier, supra, 37 Cal.4th 1207-1208.) Neither remedy was based on the sufficiency of evidence or the defendant’s actual innocence.
Federal cases distinguish between the “factual[ ] innocence” requirement in section 851.8 and legal innocence, which is what Wilson has demonstrated. As Johnson v. Hargett (1992) 978 F.2d 855, 859-860 explained, “[t]he [U.S.] Supreme Court has made clear that the term ‘actual innocence’ means factual, as opposed to legal, innocence—‘legal’ innocence, of course, would arise whenever a constitutional violation by itself requires reversal, whereas ‘actual’ innocence, as the Court stated in McCleskey, [McCleskey v. Zant (1991) 499 U.S. 467] means that the person did not commit the crime.”
The distinction between factual innocence and legal innocence is not inconsistent with the court’s holding in McCann where the court made a factual determination that the evidence was insufficient because McCann at all times had a license to practice medicine. As such, the exception carved out in McCann does not provide relief in all cases reversed on appeal. Just those where the “the conviction has been reversed due to insufficiency of the evidence.” (People v. McCann, supra, 141 Cal.App.4th at p.355.)
Although Wilson’s case was not reversed due to insufficiency of the evidence, he contends that he received the functional equivalent when the trial court relieved him of any further obligation to register and dismissed his convictions for failure to register. According to Wilson, now that his convictions are dismissed, there is no evidence that supports his convictions and therefore he is entitled to a determination of factual innocence.
We disagree. A detail that the parties failed to include in their account of the statement of the case is the fact that Wilson’s conviction in superior court case number 97WF1728 was affirmed on appeal by this court in case number G022717 and case number 01NF3181 was affirmed on appeal by this court in case number G03048. As such, the superior court order vacating Wilson’s convictions in case numbers 97WF1728 and 01NF3181 is void, and once notice is provided to the parties, it is subject to a motion to vacate by the People, or by the superior court on its own motion. (People v. Malveaux (1996) 50 Cal.App.4th 1425, 1434.)
On the Court’s own motion and for good cause, we take judicial notice of this Court’s record in case numbers G022717 and G030418. (Evid. Code, §§ 459, 452, subd. (d).)
“[I]f a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of that judgment, except in the court which affirmed the judgment on appeal. When a judgment is affirmed by a court of appeal and a hearing is not granted by the Supreme Court, the application for the writ shall be made to the court of appeal.” (Pen. Code, § 1265, subd. (a).)
Other than a post judgment petition for a writ of habeas corpus, which confers original jurisdiction in the superior court pursuant to Article VI, section 10 of the California Constitution, once the judgment is affirmed on appeal, the trial court is without jurisdiction to vacate the judgment. The trial court’s jurisdiction is limited to making “orders necessary to carry the judgment into effect.” (Pen Code, §§ 1265, subd. (a); 1263; People v. Ainsworth (1990) 217 Cal.App.3d247, 251-252.)
Once this court affirmed Wilson’s convictions in case numbers G022717 and G030418, the trial court had a complete absence of power and authority to hear or determine Wilson’s motion to vacate his section 290 convictions. (People v. Langdon (1967) 250 Cal.App.2d 595.) As such, when the trial court vacated Wilson’s convictions, it lacked fundamental jurisdiction to do so and therefore its order is void. (Conservatorship of O’Conner (1996) 48 Cal.App.4th 1076, 1088.)
DISPOSITION
For the forgoing reasons, the judgment is affirmed.