P. v. Lopez

 

 

 

 

 

 

 

 

Filed 6/12/13  P. v. Lopez CA4/3

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,                      v.   JOSE MANUEL LOPEZ,         Defendant and Appellant.

G047176            (Super. Ct. No. M14300)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Patricik H. Donahue, Judge.  Affirmed.

                        Allison K. Simkin and
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant
and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton and Michael T. Murphy,
Deputy Attorneys General, for Plaintiff and Respondent.

 

*                      *                      *

                        Jose Manuel Lopez
appeals from an order denying his petition made under Penal Code
section 851.8, to seal and destroy records and to find him factually
innocent. The decision made by the trial court was based on conflicting
evidence.  It is the trial court’s duty,
not ours, to decide credibility issues. 
We therefore affirm the order.

                        Defendant admittedly
engaged in a sexual encounter with a woman he had picked up at a bus stop.  He claimed it was consensual; she denied
consent.  The trial court reviewed href="http://www.fearnotlaw.com/">extensive documentation, permitted
defendant, who appeared in pro. per., to give an extensive unsworn statement,
heard testimony of defendant’s brother, and thereafter ruled “there is
reasonable cause that you were arrested and reasonable cause that you are not
factually innocent in the matter.  So
your motion is denied.”  The fact the
district attorney declined to prosecute him does not establish his factual
innocence.

                        As an appellate court
recently noted, defendant’s burden of proof is very high and we do not
reconsider credibility issues. 
“Appellant suggests that the trial court applied the wrong legal
standard because it described the burden under [Penal Code] section 851.8 as
‘incredibly high’ and suggested it was necessary to find not just reasonable
doubt of appellant’s guilt, but ‘no doubt whatsoever.’  We find no error, because the court’s
characterization of the standard was apt. 
‘“‘[F]actually innocent’ as used in [section 851.8(b)] does not mean a
lack of proof of guilt beyond a reasonable doubt or even by ‘a preponderance of
evidence.’  [Citation.]”  [Citation.] 
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 . . . .” 
[Citation.]  In sum, the record
must exonerate, not merely raise a substantial question as to guilt.  [Citation].’ 
[Citation.]”  (>People v. Esmaili (2013) 213
Cal.App.4th 1449, 1459, italics omitted.)    

 

 

 

DISPOSITION

 

                        The order is affirmed.

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

FYBEL, J.

 

 

 

THOMPSON, J.