The People charged defendant and respondent, Scot B. Gerold, by information with assault with a deadly weapon by force likely to produce great bodily injury and terrorist threats. Defendant pled not guilty by reason of insanity (NGI). The court found defendant guilty of the charged offenses after completion of the initial stage of the trial. Upon conclusion of the sanity phase, the court found defendant NGI. Defendant was committed to a state hospital for just over four years. Nearly five and one-half years after his release from confinement, defendant filed a petition pursuant to Penal Code section 851.8 to have his arrest records for the underlying offenses sealed and destroyed. The court granted the request.
On appeal, the People contend the court acted in excess of its jurisdiction in granting the petition because it was not brought within the statutory timeframe, i.e., within two years of the filing of the accusatory pleading. Likewise, the People maintain that defendant failed to sustain his burden of showing, and the court failed to find, good cause for not complying with that statutory deadline. Finally, the People argue that defendant is simply not the type of individual the Legislature envisioned Penal Code section 851.8 would apply to, i.e., while defendant was not “convicted” of the charged offenses, neither was he “acquitted” of the charges, the charges against him were not “dismissed,” and defendant was not “factually innocent.” We hold that the People forfeited the applicability of the statute of limitations by failing to raise the issue below. Nevertheless, we also hold that section 851.8 was inapplicable to defendant and, thus, reverse the court’s order granting his petition to seal and destroy his arrest records.
FACTUAL AND PROCEDURAL HISTORY
On January 23, 1998, defendant woke up and became angry because he could not find a pair of his jeans. He thought someone within the residence had stolen them. After “raving” for five to 10 minutes, defendant picked up an eight- to nine-inch-long kitchen knife, threatened to kill his father, and moved towards his father moving the knife back and forth in slashing motions. Defendant’s father, fearing for his safety, backed outside the home, after which defendant closed and locked the door. Defendant’s mother called the authorities. Deputies arrived shortly thereafter and detained defendant.
On January 27, 1998, the People charged defendant by felony complaint with assault with a deadly weapon by force likely to produce great bodily
On May 13, 2002, the People filed a petition to extend defendant’s period of confinement. On November 6 and 7, 2002, the People proceeded by way of a jury trial on the allegations in the petition. The jury found the allegations in the petition not true. The court thereafter released defendant.
On January 25, 2008, 2 defendant filed a petition to have his arrest records for the underlying offenses sealed and destroyed. On February 29, 2008, the court held a conference regarding the petition in chambers, off the record. On the record thereafter, the court engaged in a colloquy with both parties regarding the issue of whether a defendant who was found NGI is entitled to have arrest records expunged pursuant to section 851.8. The court continued the matter to permit the parties to brief the issue. Both parties filed supplemental briefs. At the hearing thereafter, the court indicated it had read the supplemental briefs and heard argument from defendant’s counsel. The court stated, “I think this is a situation that the [L]egislature clearly didn’t foresee, and I think we need to dispense a little justice here.” The court, therefore, granted the petition.
The People appealed and filed a request that the order to seal and destroy defendant’s arrest records be stayed pending the appeal. The trial court granted the stay request.
DISCUSSION
A. Statute of Limitations
The People contend that since defendant’s petition to seal and destroy his arrest records was not filed within the statutory deadline of two years from the filing of the accusatory pleading, the court was barred from granting it. Similarly, the People maintain that since defendant failed to allege, and the
Section 851.8, subdivision (c), provides in pertinent part 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 such a finding, the court shall order the appropriate law enforcement agency to seal the arrest records for three years from the date of the arrest and, thereafter, destroy such records. (§ 851.8, subds. (b), (c).) “[F]or accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the . . . filing of the accusatory pleading . . . .” (§ 851.8, subd. (/).) “Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.”
(Ibid.)
The time limitation imposed in section 851.8, subdivision (/), applies to all petitions brought under section 851.8.
(People v. Bermudez
(1989)
The People filed the felony complaint on January 27, 1998, and the information on April 13, 1998. Defendant filed the petition to seal and destroy his arrest records on January 25, 2008. Even assuming the latter instrument was the effective accusatory pleading in this case, defendant failed to file his petition within the statutory deadline. Moreover, defendant made no showing of good cause; indeed, he made no showing whatsoever to account for his delay in filing the petition. Assuming arguendo that defendant’s confinement to mental institutions between July 1998 and November 2002 would be deemed a per se showing of good cause for the delay in filing the petition during that period, defendant still failed to account for his delay in filing the petition in the nearly five and one-half years that elapsed since his release. Nevertheless, no mention of that delay or the statute of limitations was made in either parties’ oral arguments or written submissions regarding the petition. Thus, defendant contends the People are estopped from asserting it now.
We hold that the People have
forfeited
the issue by failing to raise it below: “Our Supreme Court has explained that ‘jurisdictional errors are of two types. “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of
Here, as the text of the statute makes plain, the statute of limitations does not implicate fundamental jurisdiction because it does not affect the court’s personal or subject matter jurisdiction. The court had jurisdiction over the parties and the petition in the sense that it had the power to relieve defendant from the statutory deadline upon a showing of good cause and the power then to address the merits of the petition. Indeed, in its opening brief, the People contend not that the court acted without
fundamental
jurisdiction, but that it acted in
excess of jurisdiction.
Thus, the statute of limitations is subject to forfeiture.
(People
v.
Mower
(2002)
Williams
is distinguishable in that it narrowly decided that “if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time.”
(Williams, supra,
B. Because Defendant Was Not “Factually Innocent” of the Underlying Crimes, He Is Not Entitled to Relief Pursuant to Section 851.8
The People contend that a defendant found NGI is not entitled to arrest record expungement pursuant to section 851.8. This is because, the People argue, section 851.8 necessitates that the defendant not have been convicted, that the matter be dismissed thereafter or that the defendant have been acquitted, and that the defendant be found factually innocent of the crime. Thus, since a defendant found NGI necessarily has been found to have actually committed the actus reus of the charged offenses and has neither been acquitted nor had the action dismissed, such a defendant has not met the requirements of section 851.8. Defendant contends that a defendant found NGI has, necessarily, not been convicted. Moreover, defendant essentially responds that a defendant found NGI has necessarily been found incapable of committing the crime because he was powerless to meet the essential mens rea element of the crime; thus, such a defendant was effectively factually innocent of the offense. We decline to address the broader issue of whether a defendant found NGI is categorically barred from relief pursuant to section 851.8 because we find that, regardless, defendant was not factually innocent of the underlying charges since reasonable cause exists to believe that defendant committed the offenses for which the arrest was made.
As noted above, section 851.8, subdivision (c), provides, in pertinent part, 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 such a finding, the court shall order the appropriate law enforcement agency to seal the arrest records for three years from the date of the arrest and, thereafter, destroy such records. (§ 851.8, subds. (b), (c).)
The parties below recognized the novelty of defendant’s situation. The People noted that “[defendant] was found [NGI], so the question is whether that is factual innocence under the standard. It does not appear to be so. ... I understand and appreciate the argument that he may have been not guilty of the crime because of his mental state. I understood this was a burglary
Defendant noted that had he been convicted, the procedure for “clearing his good name would be [pursuant to section 1203.4]”; however, because he was “acquitted,” only the procedures outlined in section 851.8 were applicable. Defendant contended that the court should determine that he was factually “innocent because he was found [NGI].” The court then observed that section 851.8, subdivision (c), applied only to cases that had been dismissed, querying counsel whether the instant action had been dismissed. Counsel responded that defendant had pled NGI: “I cannot say that is a dismissal.” Counsel erroneously stipulated that there was no trial; rather, defendant had entered into a plea agreement. The court then noted that “the criminal case had to have been dismissed because it didn’t proceed to trial.” 4 Defendant agreed with the court’s assessment. The court reiterated, “[l]ogically that’s the case.” The People responded, “[b]ut, still, I don’t know if it’s entered into the same thing as a dismissal, though.” The court replied, “[y]ou know, this is interesting; when we came out of chambers, my inclination was to deny this motion, and now I’m considering otherwise.” The court then continued the matter to permit the parties to brief the issue.
In its points and authorities in opposition to defendant’s petition, the People contended that defendant failed to meet his burden of proving that he was factually innocent of the underlying charges, that there was reasonable cause to arrest defendant, and that section 851.8 provided no mechanism for expunging the records of those found NGI. In his supplemental brief, defendant asserts that “[a]fter an exhaustive search of cases dealing with
“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.” (§ 851.8, subd. (b); see also
People v. Laiwala
(2006)
When reviewing a lower court’s ruling concerning a petition for sealing and destroying arrest records, an appellate court “must apply an independent standard of review and consider the record de novo.”
(People v. Adair, supra,
This means defendant must establish “ ‘as a prima facie matter not necessarily just that the [defendant] had a viable substantive defense to the
Here, defendant is not factually innocent of the charges against him. On the contrary, during the initial phase of the trial, the court determined that defendant had committed the acts constituting the crimes of which he was charged. Defendant has not sustained his burden of proving that he was factually innocent, i.e., that “no reasonable cause exists to believe that the arrestee committed the offense for which arrest was made.” (§ 851.8, subd. (b).) Even from the current temporal perspective, i.e., with all the benefit of hindsight, we cannot say that an officer, knowing that defendant was legally insane when committing the underlying offenses, would not have had reasonable cause with which to arrest him. Nor could we say, in retrospect, that defendant should not have been subjected to the “ ‘compulsion of the criminal law—because no objective factors justified official action.’ ”
(Adair, supra,
Defendant cites
McCann, supra,
While
McCann
established a defendant’s right
to seek
relief pursuant to section 851.8 when the defendant’s conviction has been reversed for insufficiency of the evidence, it did not conclude that such a defendant would, necessarily, be
entitled
to such relief.
(McCann, supra,
Furthermore, the People in
McCann,
assuming arguendo that the defendant was factually innocent of the charged offenses, contended that there was still reasonable cause to prosecute him for violating the misdemeanor lesser included offense of the felonies.
(McCann, supra,
Finally, defendant cites
Laiwala, supra,
We find
Laiwala
distinguishable. First, while
Laiwala
mled that lack of evidence on a single element supports a finding of factual innocence, that
DISPOSITION
The order granting defendant’s petition to have his arrest records for the underlying offenses sealed and destroyed is reversed.
Hollenhorst, Acting P. J., and King, J., concurred.
Respondent’s petition for review by the Supreme Court was denied September 17, 2009, S173964.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
Although the parties both reference this date in their briefs, there is nothing in the record signifying the filing date of the petition. We take judicial notice of the San Bernardino Superior Court register of actions, indicating defendant’s petition was filed January 25, 2008. (Evid. Code, §§ 459, subd. (a), 452, subd. (g).)
Both the parties and the court made erroneous references to the factual circumstances surrounding defendant’s prosecution for the underlying offenses, including that defendant was charged with burglary, that the offenses occurred in 1992 or 1993, and that defendant pled NGI pursuant to a plea agreement.
Again, as noted in footnote 3, ante, the court and parties mistakenly indicated defendant had pled NGI pursuant to a plea agreement and did not take the matter to trial.