P. v. Cassiero
Filed 1/26/09 P. v. Cassiero CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
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THE PEOPLE, Plaintiff and Respondent, v. MARK CASSIERO, Defendant and Appellant. | C059272 (Super. Ct. No. CRF060007649) |
David Disney reported to the Shasta County Sheriffs Department that he witnessed a tenant he was evicting, defendant Mark Cassiero, load Disneys refrigerator into a pickup and drive away. Disney said that the refrigerator was valued at $400 and later produced a receipt he claimed established his ownership of it.
Defendant was arrested and charged with grand theft of personal property. He pled not guilty and submitted evidence that he had purchased the refrigerator from a man named Michael Patti.
At the district attorneys request, the trial court dismissed the case against defendant because the prosecution decided there was insufficient evidence to prove the charge beyond a reasonable doubt.
A year later, defendant brought a motion pursuant to Penal Code section 851.8, asking the trial court to find him factually innocent of the charge and to order the arrest record sealed and destroyed.
Denying defendants motion, the court cited People v. Adair (2003) 29 Cal.4th 985, at page 909 (hereafter Adair), which held defendant had the burden to show that the record must exonerate, not merely raise a substantial question as to guilt. Applying that standard to the facts before it, the court stated: As I reviewed the facts as provided in the attachments on the moving papers, it was clear that what I have is the alleged victim indicating that he obtained a refrigerator from a previous tenant in return for two months rent and left that in the residence that [defendant] eventually rented, and he provides documentation on a freezer/ refrigerator combination. [] [Defendant], in his statement, and the statement of other witnesses through declarations, indicates that there was no refrigerator when he moved in, and provides documentation for the purchase of a different . . . freezer/ refrigerator combination. . . . [C]learly to me its an issue of credibility, who[m] the trier of fact believes when we have two absolutely different versions of what occurred. [] Certainly I can understand why the People dismissed in terms of proof beyond a reasonable doubt. But thats not the standard that Im applying. Reading Adair, it seems to me that when you have an issue that is absolutely based upon the credibility of the witnesses, and there is nothing in the declarations themselves that one would say you absolutely could not believe one side or the other, that the standard has not been met. And therefore, the Court has to deny the motion for determination of factual innocence.
Defendant appeals, and we appointed counsel to represent him on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
SCOTLAND , P. J.
We concur:
HULL, J.
BUTZ , J.
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