People v. Allen CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCS269740
- Trial judge
- Michael D. Wellington
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Gilbert Nares, Cynthia Aaron
Analysis
The trial court denied Allen's petition to seal and destroy his arrest record, finding probable cause existed for his arrest under Penal Code section 28250, subdivision (b)(2), based on his certification that he had read the list of prohibited offenses. The Court of Appeal affirmed the order, holding that Allen failed to prove factual innocence because a person of ordinary care could reasonably suspect he knowingly furnished incorrect information regarding his prior disqualifying conviction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to seal and destroy arrest record under Penal Code section 851.8“Allen has not met his burden of proving he was factually innocent, i.e., that 'no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.'” | mixed | correct | agree with court The court correctly applied the standard of review for section 851.8 petitions, deferring to factual findings supported by substantial evidence while independently reviewing the legal question of whether reasonable cause existed. The conclusion that Allen failed to meet his burden is supported by the record, as his certification that he read the list of prohibited offenses and that nothing precluded him from possessing a firearm was objectively false given his prior conviction, providing reasonable cause for the arrest regardless of the specific statutory citation error on the form. |
Authorities
- relied: People v. Adair (2003) 29 Cal.4th 895 — A finding of factual innocence shall not be made if any reasonable cause warrants a belief that the arrestee committed the offense; the record must exonerate, not merely raise a substantial question as to guilt.
- relied: People v. Matthews (1992) 7 Cal.App.4th 1052 — To establish factual innocence, the arrestee must show that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty.
- relied: People v. Bleich (2009) 178 Cal.App.4th 292 — A trial court's finding of insufficient evidence to bind over an appellant for trial does not, standing alone, sustain the defendant's burden of proof to show factual innocence.
- relied: People v. Esmaili (2013) 213 Cal.App.4th 1449 — In an appeal from a section 851.8 order, the court defers to factual findings supported by substantial evidence but independently reviews whether the defendant sustained the burden of showing no reasonable cause exists to believe they committed the offense.
- relied: People v. Groves (1969) 71 Cal.2d 1196 — A challenge to the validity of an arrest warrant may not be raised on appeal if it was not raised in the trial court.
The appellate opinion: sound — The opinion is sound because it correctly distinguishes between the insufficiency of evidence for a preliminary hearing (which requires proof beyond a reasonable doubt or probable cause for the specific theory charged) and the standard for factual innocence (which requires the complete absence of reasonable cause for the arrest). It properly applies the 'person of ordinary care and prudence' test to the objective facts of Allen's false certification.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Douglas Allen's Penal Code section 851.8 petition to seal and destroy his arrest record, finding reasonable cause existed to believe he knowingly furnished incorrect information on a firearm-purchase DROS form despite the earlier dismissal of the felony complaint at the preliminary hearing. The Court of Appeal, applying deferential review of factual findings and independent review of whether Allen met his burden of showing factual innocence, held Allen's certification that he had read the list of prohibited offenses and nothing precluded him from possessing a firearm supplied reasonable cause, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 851.8 petition for finding of factual innocence and sealing/destruction of arrest records on the ground that reasonable cause existed to believe Allen violated section 28250, subdivision (b)(2)“Accordingly, the court determined there was probable cause for Allen's arrest and denied his petition.” | mixed | correct | agree with court Section 851.8 places the initial burden on the arrestee to show no reasonable cause exists, and Adair holds relief cannot be granted if any reasonable cause supports a belief in guilt; the record must exonerate. Allen's argument that the DROS question referencing repealed section 12021(c)(1) was inaccurate addresses only one representation on the form. His separate certification that he had read the prohibited-offense list and nothing precluded him from possessing a firearm, combined with his undisputed disqualifying section 246.3 conviction within 10 years, supports an honest and strong suspicion that he knowingly furnished incorrect information under either alternative the trial court identified. Bleich and Esmaili correctly establish that a magistrate's dismissal for lack of probable cause does not itself establish factual innocence, and Adair supports the conclusion that the prosecution's choice of theory at the preliminary hearing does not limit the reasonable-cause inquiry. The court's reasoning and authorities support affirmance, though the opinion does not quote the actual list of prohibited offenses on the form or address at length the mens rea argument that Allen may have honestly misunderstood his eligibility. |
Allen's appellate challenge to the validity of the arrest warrant, not raised in the trial court“However, he may not raise this challenge on appeal because he did not raise it below.” | unclear | not reached | agree with court The court declined to consider a challenge to the arrest warrant because Allen did not raise it below, citing People v. Groves for the forfeiture rule. Applying ordinary forfeiture principles to an argument first raised on appeal from a post-judgment order is consistent with settled appellate practice, and nothing in the opinion suggests an exception applied. |
Authorities
- relied: People v. Adair (2003) 29 Cal.4th 895 — Under section 851.8 the trial court cannot grant a finding of factual innocence if any reasonable cause warrants a belief the arrestee committed the offense; the record must exonerate, not merely raise a substantial question as to guilt.
- relied: People v. Matthews (1992) 7 Cal.App.4th 1052 — The arrestee must establish facts that would lead no person of ordinary care and prudence to entertain an honest and strong suspicion of guilt; factual innocence requires showing no reasonable cause to arrest, not merely a viable defense.
- relied: People v. Bleich (2009) 178 Cal.App.4th 292 — A trial court's finding of insufficient evidence to bind over at the preliminary hearing does not, standing alone, satisfy the defendant's burden to show factual innocence.
- relied: People v. Esmaili (2013) 213 Cal.App.4th 1449 — On appeal from a section 851.8 ruling, the reviewing court defers to factual findings supported by substantial evidence but independently reviews whether the defendant showed no reasonable cause existed; a magistrate's refusal to hold to answer does not establish factual innocence.
- relied: People v. Groves (1969) 71 Cal.2d 1196 — A challenge not raised in the trial court may not be raised for the first time on appeal.
The appellate opinion: sound — The opinion correctly identifies the demanding factual-innocence standard of section 851.8 as construed in Adair, Matthews, Bleich, and Esmaili, and directly answers Allen's sole argument by pointing to a second, independent false certification on the DROS form that the prosecution's theory at the preliminary hearing did not foreclose. The analysis is brief and does not quote the prohibited-offense list or dwell on the knowledge element, but the result follows from the cited authorities and the undisputed disqualifying conviction.
Opinion
Filed 4/24/15 P. v. Allen CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066046
Plaintiff and Respondent, v. (Super. Ct. No. SCS269740)
DOUGLAS DANIEL ALLEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael D.
Wellington, Judge. Affirmed.
Morris Law and Aimee R. Morris for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION Douglas Daniel Allen appeals from a post-judgment order denying his petition to seal and destroy his arrest record. He contends the court erred in determining there was probable cause to believe he committed the offense for which he was arrested. We disagree and affirm the judgment.
BACKGROUND
In 2009, Allen was convicted of a misdemeanor charge of willfully discharging a firearm in a negligent manner. (Pen. Code, § 246.3, subd. (a).)1 The conviction prohibited Allen from owning or purchasing a firearm for a period of 10 years.
On September 12, 2012, Allen completed paperwork for the purchase of a firearm from a gun store. Allen signed the "Dealer's Record of Sale of Firearm" (DROS) form under penalty of perjury, certifying he had not been convicted of any misdemeanor offense specified in section 12021, subdivision (c)(1), in the last 10 years. In addition, Allen certified he had "read the list of prohibited offenses, and nothing would preclude me from possessing a firearm."
On September 17, 2012, during the firearm purchase waiting period, the California Department of Justice (DOJ) sent a letter to the gun store indicating Allen was not eligible to own or possess firearms and the store must not release the firearm to Allen.
The DOJ also notified the Chula Vista Police Department.
1 Further statutory references are also to the Penal Code unless otherwise stated.
2 Thereafter, a police detective went to the gun store and obtained Allen's original paperwork. The DROS form had Allen's original signature, as well as his thumbprint.
The detective then obtained an arrest warrant for Allen for violating section 28250, subdivision (b)(2), by being a person prohibited from obtaining a firearm who knowingly furnished incorrect information while registering for a firearm.2 The People subsequently filed a felony complaint against Allen for the same offense.
At the preliminary hearing, the People proceeded on the theory Allen committed the charged offense by falsely certifying he had never been convicted of a misdemeanor offense specified in section 12021, subdivision (c)(1). The People did not pursue whether Allen committed the charged offense by falsely certifying he had read the list of prohibited offenses and nothing precluded him from possessing a firearm. Because section 12021, subdivision (c)(1), did not exist when Allen completed the firearm purchase paperwork on September 12, 2012, the court found there was no probable cause to bind Allen over for trial and dismissed the case.3 2 At points in his opening and reply briefs, Allen appears to be challenging the validity of the arrest warrant. However, he may not raise this challenge on appeal because he did not raise it below. (People v. Groves (1969) 71 Cal.2d 1196, 1198.)
3 The Legislature repealed section 12021 effective January 1, 2012. It reenacted section 12021, subdivision (c)(1), without substantive change in new section 29805. Section 29805 provides in part: "Except as provided in Section 29855 or subdivision (a) of Section 29800, any person who has been convicted of a misdemeanor violation of Section . . . 246.3 . . . and who, within 10 years of the conviction, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine." 3 Subsequently, Allen petitioned to seal and destroy his arrest record pursuant to section 851.8. At the hearing on the petition, the court focused on Allen's certification he had "read the list of prohibited offenses and nothing would preclude me from possessing a firearm." The court reasoned Allen either: (1) had read the list of prohibited offenses and misrepresented that he did not have any such prior convictions; or (2) had failed to read the list of prohibited offenses and misrepresented that he had read it and did not have any such prior convictions. Accordingly, the court determined there was probable cause for Allen's arrest and denied his petition.
DISCUSSION
Section 851.8 provides the guidelines for sealing and destroying the arrest records of a person who is factually innocent. A defendant who is arrested and indicted, but not convicted, "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." (§ 851.8, subd. (c).) The defendant bears the initial burden of proving "that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (Id. at subd. (b).) "The arrestee thus must establish that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty of the crimes charged. [Citation.] [¶] Establishing factual innocence . . . entails establishing as a prima facie matter not necessarily just that the arrestee 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." (People v. Matthews 4 (1992) 7 Cal.App.4th 1052, 1056.) If the defendant makes the requisite showing, the burden shifts to the People to prove "reasonable cause exists to believe that the petitioner committed the offense . . . ." (§ 851.8, subd. (b).)
"A finding of factual innocence . . . 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).) "In other words, the trial court cannot grant relief if any reasonable cause warrants such a belief." (People v. Adair (2003) 29 Cal.4th 895, 904 (Adair).) "In sum, the record must exonerate, not merely raise a substantial question as to guilt." (Id. at p. 909.)
"[T]he fact the trial court found there was insufficient evidence to bind over appellant for trial based on its interpretation of the evidence (or lack thereof) does not, standing alone, sustain defendant's burden of proof to show factual innocence." (People v. Bleich (2009) 178 Cal.App.4th 292, 301.) "Thus, a defendant may be unable to carry his burden of showing there was no reasonable cause to arrest him, even though the magistrate found that the prosecution failed to carry its burden of showing probable cause to bind the case over." (People v. Esmaili (2013) 213 Cal.App.4th 1449, 1460 (Esmaili).)
"In an appeal from a trial court's order on a petition for a determination of factual innocence under section 851.8, we defer to the trial court's factual findings to the extent they are supported by substantial evidence, but independently review the record to determine whether the defendant sustained his burden of showing that no reasonable cause exists to believe he or she committed the charged offense." (Esmaili, supra, 213 Cal.App.4th at pp. 1457-1458.)
5 Section 28250, subdivision (b), states in part: "[A]ny person who is prohibited from obtaining a firearm . . . who does any of the following shall be punished by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for a term of 8, 12, or 18 months: [¶] . . . [¶] (2)
Knowingly furnishes any incorrect information for the register under Section 28210 or the electronic or telephonic transfer under Section 28215. "
Allen has not met his burden of proving he was factually innocent, i.e., that "no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (§ 851.8, subd. (b).) Allen contends he did not knowingly furnish incorrect information because section 12021, subdivision (c)(1), did not exist when he signed and certified the DROS form on September 12, 2012. We recognize the particular question on the DROS form listing section 12021, subdivision (c)(1), was inaccurate because the statute did not exist when Allen signed the form. However, Allen's response to that particular question was not his only representation on the DROS form.
Allen also certified he had "read the list of prohibited offenses and nothing would preclude me from possessing a firearm." Given the existence of Allen's prior disqualifying conviction, we agree with the trial court that Allen either: (1) had read the list of prohibited offenses and misrepresented that he did not have any such prior convictions; or (2) had failed to read the list of prohibited offenses and misrepresented that he had read it and did not have any such prior convictions. As Allen has not offered an alternative possibility, we cannot conclude the evidence completely exonerates Allen.
(See Adair, supra, 29 Cal.4th at p. 909; Esmaili, supra, 213 Cal.App.4th at p. 1459.) A 6 person of ordinary care and prudence could believe or conscientiously entertain an honest and strong suspicion that Allen knowingly furnished incorrect information when he certified this statement. (See People v. Matthews, supra, 7 Cal.App.4th at p. 1056.) It does not matter that the prosecution did not initially proceed on this theory because the court was precluded from granting his petition if there was any reasonable cause to believe he violated section 28250, subdivision (b)(2). (Adair, supra, 29 Cal.4th at p. 904.). Accordingly, Allen has failed to demonstrate the court erred in denying his petition.
DISPOSITION
The order is affirmed.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
Cites, in this corpus
- People v. Esmaili No. A134700 · 2013-02-27
- People v. Bleich D053808 · 2009-10-09
- People v. Adair S098218 · 2003-01-30
- People v. Matthews B056602 · 1992-06-29
- People v. Groves Crim. No. 13371 · 1969-10-03