P. v. McNeil
Filed 1/11/13 P.
v. McNeil CA3
Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Lassen)
----
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL
KARL McNEIL,
Defendant and
Appellant.
C070818
(Super. Ct. Nos.
CR026928, CR025563)
On
March 24,
2008, a complaint filed in
County Superior Court charged defendant Michael Karl McNeil with
December 15,
2007, and violation of a restraining order
on or about December 26,
2007.
As to the assault charge, the complaint alleged that defendant had
incurred a prior strike.
On
July 31,
2008, a complaint filed in Lassen County
Superior Court charged defendant of unlawful taking and driving of a vehicle,
grand theft, and violation of a court order, all taking place on or about June 2, 2008. The complaint alleged that
defendant committed the offenses while on release from custody.
On
August 8,
2011, the trial court granted the People’s
motions to dismiss both cases in the interest
of justice because defendant had been sentenced to a state prison term of
19 years in Los Angeles County.
On
August 29,
2011, defendant in propria persona filed a
“Motion to Seal and Destroy all Arrest Records†as to both cases, citing Penal
Code section 851.8, subdivision (d).
that the prosecuting attorney concurred in defendant’s motion, as required by
Penal Code section 851.8, subdivision (d).
On
March 20,
2012, the trial court denied the
motion. The court’s order did not state
reasons, but the court triply underscored “subdivision (d)†on the form.
Defendant
filed a notice of appeal from the
order denying the motion.
We
appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests this court 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
Defendant
filed a supplemental brief raising the following issues: (1) Defendant’s motion to disqualify the
trial judge for bias should have been granted.
(2) Defendant’s motion to change venue (filed May 6, 2011) should have been granted.
(3) Defendant’s request to disqualify the Lassen County District
Attorney’s Office for bias should have been granted. (4) Defendant’s motions to dismiss should
have been granted. (5) This court should
vacate the order denying defendant’s motion to seal and destroy records and
grant the requested relief. We conclude
that the first four contentions are moot, and the fifth is meritless.
Defendant’s
first four contentions, all based on motions he filed in propria persona in his
Lassen County case before their dismissal, are moot. On October 8, 2010,
the trial court ruled that it would not proceed on any motion or request filed
by defendant until he had made an appearance. Thereafter -- still without
having ruled on any of defendant’s motions, so far as the record shows -- the
court dismissed the cases without trial in the interest of justice, and nothing
in the record suggests that they will be refiled. Therefore, even if we were to find that any
of defendant’s motions had merit, there is no effectual relief we could grant
as to them. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) Furthermore, defendant does not explain how
any contention based on his predismissal motions is pertinent to the
postdismissal order denying his motion to seal and destroy records, from which
this appeal is taken.
With
respect to that order, defendant has shown no error. As mentioned above, he moved to seal and
destroy records under Penal Code section 851.8, subdivision (d), which requires
the prosecutor’s concurrence. The
prosecutor did not concur in the motion.
The court therefore denied it, underscoring “subdivision (d)†(the
prosecutor concurrence requirement) to signal the basis for the ruling. On appeal, defendant ignores this fact. Thus,
his claim that the ruling was erroneous fails.
Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The
order appealed from is affirmed.
ROBIE , J.
We
concur:
NICHOLSON , Acting P.
J.
BUTZ , J.
name="_ftn1" title="">[1] Penal Code section
851.8 provides generally that a person arrested but later determined to be
factually innocent may petition for and obtain the sealing and destruction of
all records in the case. Subdivision (b)
provides that any superior court with territorial jurisdiction over the matter
may grant such relief. Subdivision (d),
cited by defendant, provides that if an accusatory pleading has been filed but
no conviction has occurred, the court may grant the relief specified in
subdivision (b) at the time of the dismissal of the accusatory pleading “with
the concurrence of the prosecuting attorney.â€
