Under Cal. Penal Code § 851.8(b), an acquitted defendant may petition for the sealing and destruction of any arrest records relating to the charge. The trial court then holds a hearing at which the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the defendant committed the offense charged. 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 charged. § 851.8(b). At the hearing, both the defendant and the district attorney may present evidence such as declarations, affidavits, police reports, or any other evidence which is material, relevant and reliable, including evidence previously suppressed pursuant to Cal. Penal Code §§ 1538.5, 1539. § 851.8(b).
People v. Adair, 29 Cal. 4th 895 (Cal. 2003)
Cal. Penal Code § 851.8(b) directs that 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 the defendant committed the offense charged.
This is from the annotated section of 851.8 – (cases)
1. In General
Pen C § 851.8, providing for the sealing of arrest and detention records where a defendant is acquitted and specifically found factually innocent, was intended as a compromise between the valid public purposes that arrest records may serve and a recognition that innocent persons had suffered adverse consequences and were entitled to relief. People v White (1978, App Dep't Super Ct) 77 Cal App 3d Supp 17, 144 Cal Rptr 128, 1978 Cal App LEXIS 1247.
The word "whenever" means the same as "if," "at any time when," "in every instance in which," and "as long as." Thus, the plain language of Pen C § 851.8, in allowing for the sealing of arrest records "whenever" a defendant is acquitted and found factually innocent, demonstrates that it is applicable to anyone who had been acquitted and not merely those acquitted after the effective date. People v White (1978, App Dep't Super Ct) 77 Cal App 3d Supp 17, 144 Cal Rptr 128, 1978 Cal App LEXIS 1247.
Pen C § 851.8, subd. (i), pertaining to the sealing and destruction of certain arrest records, and providing that any finding that an arrestee is factually innocent pursuant to Pen C § 851.8, subd. (a), (b), (c), (d), or (e), shall not be admissible as evidence in any action, is not to be construed as requiring that a finding of factual innocence on the part of the arrestee is required under subd. (d) of that statute, authorizing the court, with the concurrence of the district attorney, to order, at the time of the dismissal of the accusatory pleading, the arrest records sealed and destroyed, where a person has been arrested and an accusatory pleading filed but where no conviction has occurred. Such a construction would require a rewriting of Pen C § 851.8, subd. (d). Rather, a simpler and more reasonable method of harmonizing the two subdivisions is to assume that the reference in subd. (i) to a finding of actual innocence under subd. (d) arose from the Legislature's awareness that a trial court might make such a finding before accepting the district attorney's recommendation that a defendant's arrest records be sealed and destroyed, even though the court is not required to make any such finding. People v. Frank M. (1985, 1st Dist) 163 Cal App 3d 939, 210 Cal Rptr 53, 1985 Cal App LEXIS 1550.
Pen C § 851.8, is for the benefit of those defendants who have not committed a crime by permitting petitioners who can show that the state should never have subjected them to the compulsion of criminal law, on the basis that no objective factors justified official action, and to purge the official records of any reference to such action. However, much more than a failure of the prosecution to convict is required in order to justify the sealing and destruction of records under § 851.8, in that relief under the statute requires a finding of factual innocence and the statutory language commits the determination of that issue to the trial court. Only in those cases where the trial court determines that defendant is factually innocent is the trial court justified in sealing and destroying defendant's arrest records. People v. Scott M. (1985, 5th Dist) 167 Cal App 3d 688, 213 Cal Rptr 456, 1985 Cal App LEXIS 2015.
Pen C § 851.8, providing for the sealing and expungement of arrest records of a person who establishes his or her factual innocence, does not provide for the surgical excision of only certain portions of an arrest record. It would defeat the statutory purpose of leaving a factually innocent person with an unblemished record and run afoul of the legislative objective sought to be achieved for a court to permit the sealing and destruction of only part of an accused's arrest record. Another constraint is the principle that penal statutes must be strictly construed to guard against judicial usurpation of the legislative function. legislative function. People v. Matthews (1992, 2nd Dist) 7 Cal App 4th 1052, 9 Cal Rptr 2d 348, 1992 Cal App LEXIS 831.
"Initial burden of proof" referred to in Cal. Penal Code § 851.8(b) is not a condition for the introduction of additional evidence, but is the standard the petitioner must satisfy before the prosecution is required to make a contrary showing, and to satisfy this burden of proof, the petitioner must be permitted to adduce his evidence; the trial court abused its discretion in refusing to consider defendant's proffered evidence of actual innocence before denying his motion. People v. Chagoyan (2003, 2nd Dist) 107 Cal App 4th 810, 132 Cal Rptr 2d 419, 2003 Cal App LEXIS 491.
Because an appellate ruling of legal insufficiency is functionally equivalent to an acquittal for double jeopardy purposes, it follows that, for equal protection purposes, appellate acquittals for insufficient evidence and trial acquittals should be treated the same under Pen C § 851.8. People v. McCann (2006, 2d Dist) 141 Cal App 4th 347, 45 Cal Rptr 3d 868, 2006 Cal App LEXIS 1074.
2. Circumstances Warranting or Barring Relief
Pen C § 851.8, which permits a judge to order the records in a case sealed whenever a defendant is acquitted and it appears to the trial judge that defendant was factually innocent, is fully retroactive. Thus, a defendant acquitted of two misdemeanor charges in 1972 was entitled to apply for relief under that section where the trial judge found him to be factually innocent of the charges, notwithstanding that the effective date of the statute was January 1, 1976. People v White (1978, App Dep't Super Ct) 77 Cal App 3d Supp 17, 144 Cal Rptr 128, 1978 Cal App LEXIS 1247.
Orders sealing the records of two defendants against whom misdemeanor charges were dismissed in the furtherance of justice (Pen C § 1385), were not authorized by Pen C § 851.8 (permitting judge to seal record when defendant is acquitted and it appears that he was factually innocent), where there were no trials at which evidence was presented from which their factual innocence could be found and no basis to even assume that insufficiency of the evidence was involved. The orders were thus in excess of jurisdiction and void. People v. Glimps (1979, 2nd Dist) 92 Cal App 3d 315, 155 Cal Rptr 230, 1979 Cal App LEXIS 1678.
Pen C § 851.8 (permitting judge to seal record when defendant is acquitted and it appears that he was factually innocent of charges), does not empower a court to seal records in matters that are dismissed in the furtherance of justice (Pen C § 1385). The purpose of Pen C § 851.8, is to benefit defendants who, after presentation of evidence, are found not to have committed a crime. People v. Glimps (1979, 2nd Dist) 92 Cal App 3d 315, 155 Cal Rptr 230, 1979 Cal App LEXIS 1678.
The classification created by Pen C § 851.8, which permits a court to seal the records of only those defendants who are acquitted and who are also found by the court to be factually innocent of the charges, to the exclusion of defendants against whom charges are dismissed in the furtherance of justice (Pen C § 1385), does not violate equal protection. A dismissal pursuant to Pen C § 1385 is a disposition that can be predicated on many grounds other than factual innocence. Thus, the trial court erred in sealing the records of two defendants against whom misdemeanor charges were dismissed in the furtherance of justice, where the records of dismissals in their cases contained nothing to suggest factual innocence. People v. Glimps (1979, 2nd Dist) 92 Cal App 3d 315, 155 Cal Rptr 230, 1979 Cal App LEXIS 1678.
The trial court properly granted defendant's motion, concurred in by the district attorney, to seal for three years the records pertaining to his arrest for a misdemeanor offense and then destroy the records, where the misdemeanor prosecution was compromised and dismissed, pursuant to Pen C §§ 1377, 1378, granting the trial court discretion to compromise and dismiss a misdemeanor prosecution where a person injured by an act constituting a misdemeanor acknowledges that he has received satisfaction by means of a civil remedy for his injury. The order was authorized under Pen C § 851.8, subd. (d), authorizing the court, with the concurrence of the district attorney, to order, at the time of the dismissal of the accusatory pleading, the arrest records sealed and destroyed, where a person has been arrested and an accusatory pleading filed but where no conviction has occurred, since the compromise proceedings resulted in a dismissal of charges of which defendant was not convicted. People v. Frank M. (1985, 1st Dist) 163 Cal App 3d 939, 210 Cal Rptr 53, 1985 Cal App LEXIS 1550.
3. Judicial Review
To be entitled to relief under Cal. Penal Code § 851.8, the arrestee or defendant 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 or acquitted is guilty of the crimes charged. People v. Adair (2003) 29 Cal 4th 895, 129 Cal Rptr 2d 799, 62 P3d 45, 2003 Cal LEXIS 703.
Because a city and its police department were not parties to a criminal case, they had no standing to appeal an order that granted an arrestee's petition to seal and destroy his arrest record on the ground that he was factually innocent of dismissed charges. People v. Punzalan (2003, 2nd Dist) 112 Cal App 4th 1307, 6 Cal Rptr 3d 30, 2003 Cal App LEXIS 1616.
4. Factual Innocence
Much more than a failure of the prosecution to convict is required in order to justify the sealing and destruction of records under Cal. Penal Code § 851.8. 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. People v. Adair (2003) 29 Cal 4th 895, 129 Cal Rptr 2d 799, 62 P3d 45, 2003 Cal LEXIS 703.
"Factual innocence" as used in Cal. Penal Code § 851.8(b) does not mean a lack of proof of guilt beyond a reasonable doubt or even by a preponderance of evidence; 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. The record must exonerate, not merely raise a substantial question as to guilt. § 851.8(f), (h). People v. Adair (2003) 29 Cal 4th 895, 129 Cal Rptr 2d 799, 62 P3d 45, 2003 Cal LEXIS 703.
Where defendant, an orthopedic surgeon, could not possibly have been guilty of practicing medicine without a license in violation of former B & P C § 2053 (repealed 2002) because he had a valid license to practice medicine, the trial court erred in denying defendant's motion for a finding of factual innocence pursuant to Pen C § 851.8. People v. McCann (2006, 2d Dist) 141 Cal App 4th 347, 45 Cal Rptr 3d 868, 2006 Cal App LEXIS 1074.
Defendant was entitled under Pen C § 851.8 to a finding of factual innocence of grand theft of a trade secret because there was insufficient evidence that a program he allegedly took met the statutory definition of a trade secret in Pen C § 499c(a)(9); defendant presented evidence that the program could perform only a well-known process, and there was no evidence that it had independent economic value. People v. Laiwala (2006, 6th Dist) 143 Cal App 4th 1065, 49 Cal Rptr 3d 639, 2006 Cal App LEXIS 1553.
Cal Pen Code § 851.8
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