Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC061488A
Haerle, Acting P.J.
I. INTRODUCTION
Appellant appeals from the trial court’s denial of two petitions, both filed on February 24, 2009, and both brought under Penal Code section 851.8, to seal and destroy records pertaining to warrants issued for his arrest on June 2, 1981, on charges which were dismissed the next day. Without holding an evidentiary hearing, the trial court denied the petitions on the ground that appellant had not shown good cause for his delay in filing them. We vacate the trial court’s order as to those petitions and remand the case to it with directions to hold such a hearing if so requested by petitioner.
All further statutory references are to the Penal Code unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 1981, a warrant was issued for appellant’s arrest for alleged violations of sections 484, subdivision (a) (petty theft), and 242 (battery), offenses which had allegedly occurred several months earlier. One day later, i.e., on June 3, 1981, these charges were dismissed because the police determined that the charged offenses had apparently been committed by appellant’s brother, Ernest John Hanks.
Six months later, in December 1981, appellant was charged in case No. C11047 with violations of sections 245, subdivision (a) (forcible assault likely to produce bodily injury), 286, subdivision (c) (sodomy), and 288a, subdivision (c) (forced oral copulation); the victim was his then-wife. Following a preliminary hearing held on March 3, 1982, appellant was held to answer to those charges.
Apparently the previous month, appellant had been charged in case No. C10979 with another violation of sections 245, subdivision (a), 243 (battery), and 664/187 (attempted murder) in a case apparently involving a relative of his wife.
On April 1, 1982, the San Mateo District Attorney moved to consolidate case Nos. C10979 and C11047; the trial court granted that motion on April 16, 1982.
On August 3, 1982, appellant pled no contest to the section 245, subdivision (a), assault charge in case No. C10979, As, apparently, a part of the plea negotiations in the two consolidated cases, all the charges in case No. C11047 were dismissed. Neither the record provided us nor the briefs of the parties indicate the sentence appellant received after his plea of no contest to the section 245, subdivision (a), violation in case No. 10979. However, subsequently, i.e., in 1986, appellant was convicted in Santa Clara County Superior Court of first degree murder and sentenced to life in prison without the possibility of parole. (See Hanks v. Borg (1995) (9th Cir. 1995) 51 F.3d 280.)
Appellant filed no reply brief in this court.
Previously, in 1967, appellant had been convicted and imprisoned for second degree murder.
On March 2, 2009, appellant filed two petitions to seal and destroy the records in connection with the June 2, 1981, warrants issued for his arrest pursuant to section 851.8. No opposition was filed by the District Attorney’s office to either petition.
On April 13, 2009, the trial court denied the petitions as untimely; appellant filed a timely notice of appeal. Several months later, this court denied a request by the Attorney General to dismiss the appeal.
III. DISCUSSION
Section 851.8 provides (in a combination of subdivisions (c), (d) and (l)) that a person who has been arrested and charged with an offense, but not thereafter convicted, may petition for a finding of factual innocence. Almost any type of evidence is admissible to establish such innocence, although the burden is on the petitioner to show that there was no reasonable basis to believe he committed the offense with which he was charged. Subdivision (l) of section 851.8 provides that, for the time period relevant to this case, i.e., “accusatory pleadings filed on or after January 1, 1981, ” a petition brought pursuant to that section “may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later.” The statute also provides that this time restriction “may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.” (§ 851.8, subd. (l).)
The San Mateo District Attorney’s office filed no objection (at least none that appears in the record before us or which is referenced in the Attorney General’s brief to us) to appellant’s petition. And, in his brief to us, the Attorney General does not “dispute appellant’s claim that he has satisfied the substantive requirements of section 851.8 in connection with the shoplifting offense.” However, the Attorney General argues that we should affirm the trial court’s denial of the petition for two reasons: (1) this court “has already taken judicial notice of appellant’s status as a life inmate” (citing our order of January 13, 2010, denying respondent’s motion to dismiss the appeal) and (2) the petition was not filed within the two-year period specified by section 851.8, subdivision (l).
The Attorney General suggests that this might be so because appellant’s petition to the superior court does not show service upon the District Attorney. But that office was surely aware of the proceeding at some point, as it was served with a copy of the court’s denial of the petition.
We reject respondent’s first point: there was nothing in our order of January 13, 2010, referencing appellant’s status as a “life inmate” as a basis for rejecting respondent’s motion to dismiss the appeal much less taking “judicial notice” of it.
Respondent’s second argument for affirmance, i.e., that appellant waited over two decades after the time limit imposed by section 851.8, subdivision (l), to file his petition is far more compelling. However, the trial court’s April 13, 2009, denial of appellant’s petition was rendered absent a hearing thereon at which appellant would have been allowed to present reasons and/or evidence as to possible “good cause” for the substantial delay in the filing of his petition. (See § 851.8, subd. (l).) In People v. Chagoyan (2003) 107 Cal.App.4th 810, 815-818 (Chagoyan), the court reversed a trial court’s summary denial of a section 851.8 petition because the court had not honored the petitioner’s request for an evidentiary hearing on his petition.
It is true, as the Attorney General notes, that the petitioner in Chagoyan had specifically requested such a hearing (see Chagoyan, supra, 107 Cal.App.4th at pp. 814-815), whereas there is nothing in the present record suggesting that this appellant did so. But petitioner clearly prepared his petitions in pro per, and thus-and notwithstanding the rather futile nature of the relief sought (given petitioner’s life without parole imprisonment)-we believe the appropriate relief in this case is to remand the matter to the trial court to allow (1) petitioner to specifically request a hearing on his section 851.8 hearing petitions and (2) as and when he does so, for the trial court to hold a hearing on them.
This disposition is reinforced by the Attorney General’s alternate request, in his letter-request that this appeal be dismissed, that if we did not dismiss the appeal, the matter should be remanded to the trial court “to permit the district attorney an opportunity to file a response [to the petition] and for the court to issue a decision thereafter after such proceedings as may be appropriate.”
IV. DISPOSITION
The trial court’s order of April 13, 2009, is vacated and the matter remanded to it with directions to hold a hearing at which (1) appellant may, if he chooses, present evidence regarding both the reasons for his delay in filing the petitions and his alleged factual innocence of the 1981 petty theft and battery charges, and (2) the San Mateo County District Attorney’ office may submit rebuttal evidence on both issues. The trial court shall then issue a new order responsive to appellant’s section 851.8 petitions.
We concur: Lambden, J.Richman, J.