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People v. Bermudez

March 27, 2009; as modified April 20, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LUIS E. BERMUDEZ, DEFENDANT AND APPELLANT.



Superior Court of the City and County of San Francisco, Nos. 119028, 184061, Ronald E. Albers, Commissioner.

The opinion of the court was delivered by: Simons, Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Appellant Luis E. Bermudez's petition for a determination of factual innocence (Pen. Code, § 851.8)*fn2 was denied by the trial court as untimely. The court rejected appellant's contention that the two-year statutory limitations period imposed by section 851.8, subdivision (l), did not apply to petitioners like him, who had had charges lodged against them, but were not convicted. In the published portion of this opinion, we conclude the trial court's interpretation was correct and affirm.

BACKGROUND

Appellant was arrested on October 2, 2001, for numerous offenses against M.C., which allegedly occurred on July 25, 2001; and, on December 5, an information was filed.*fn3 On January 18, 2002, the case was dismissed pursuant to section 1385.

On November 17, 2004, almost three years after the dismissal, appellant apparently served the San Francisco Police Department (police department) and district attorney with an "informal petition for relief" under section 851.8 regarding these charges.*fn4 The record contains the first page of a form "PETITION TO SEAL AND DESTROY ARREST RECORDS PURSUANT TO PENAL CODE SECTION 851.8." The form contains a box stating, "IMPORTANT [¶] See reverse side for additional information pertaining to Penal Code Section 851.8."

On February 6, 2007, appellant filed the subject "formal petition" pursuant to section 851.8 seeking to seal and destroy the arrest records relating to the 2001 information. Attached is a March 23, 2006 declaration by appellant stating, "I did not know the procedures to seal and clean a record and did not know this was affecting my job search. This is one of the reason [sic] I did not summit [sic] this petition before." In support of supplemental points and authorities, appellant attached 11 rejection letters sent by various public and private prospective employers. With the exception of two undated letters, the letters were dated between November 2004 and March 2007. The People opposed the petition, inter alia, on the ground that, pursuant to section 851.8, subdivision (l), the November 2004 petition was untimely because it was filed*fn5 more than two years from appellant's October 2, 2001 date of arrest or filing of the Octob complaint (the first accusatory pleading).

On June 20, 2007, the court issued a four-page order concluding that the subject petition was filed beyond the two-year limitation period set out in section 851.8, subdivision (l), and was therefore untimely. It also rejected appellant's assertions of good faith to excuse the petition's untimeliness.

Thereafter, appellant moved for reconsideration of his factual innocence petition supported by the declaration of his counsel, Demarris Evans, which sought to explain the delay in filing the petition between November 2004 and February 2007. The motion for reconsideration was denied.

DISCUSSION

I. Section 851.8, Subdivision (l) Applies to Limit the Time for Petitions Filed Under Section 851.8, Subdivision (c)

Section 851.8 establishes the guidelines for sealing and destroying the arrest records of a person who is factually innocent. (People v. Matthews (1992) 7 Cal.App.4th 1052, 1055.) It applies to the following classes of individuals: "(1) persons who have been arrested but no accusatory pleading has yet been filed (§ 851.8, subd. (a)); (2) persons who have been arrested and an accusatory pleading has been filed but no conviction has occurred (§ 851.8, subds. (c), (d)); and (3) persons who are 'acquitted of a charge and it appears to the judge presiding at the trial . . . that the defendant was factually innocent' (§ 851.8, subd. (e))." (Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1171, fn. 4.)

The parties agree that section 851.8, subdivision (c) (hereafter section 851.8(c)) directly addresses appellant, who was arrested and against whom an accusatory pleading was filed. Section 851.8(c) provides: "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)." (Italics added.)

Section 851.8, subdivision (l) (hereafter section 851.8(l)), however, imposes a two-year limitations period. It provides, in relevant part: "For arrests occurring on or after January 1, 1981, and for 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 arrest or filing of the accusatory pleading, whichever is later. . . . Any time restrictions on filing for relief under this ...


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