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People v. Gerold

June 3, 2009

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
SCOT B. GEROLD, DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Reversed. (Super. Ct. No. FCF00952).

The opinion of the court was delivered by: Miller J.

CERTIFIED FOR PUBLICATION

OPINION

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 time frame, 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 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 injury (count 1- Pen. Code, § 245, subd. (a)(1))*fn1 and terrorist threats (count 2-§ 422). On March 30, 1998, the court held defendant to answer for the charges following a preliminary hearing. The People filed the information on April 13, 1998. On June 10, 1998, the court held both phases of the trial, finding defendant guilty as charged after the first phase and NGI after the second. The court ordered defendant committed to Patton State Hospital and determined that his maximum term of confinement expired on September 22, 2002.

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,*fn2 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 ...


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