In re Edward

Filed 11/28/05 In re Edward L. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re EDWARD L., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. EDWARD L., Defendant and Appellant.	A110147 (San Francisco County Super. Ct. No. JW04-6671)

I.

Edward L., a minor, appeals from the denial of his petition for a finding of factual innocence brought pursuant to Welfare and Institutions Code section 781.5, subdivision (d),^[1] after the prosecution dismissed its juvenile delinquency petition filed under section 602. Appellant’s counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

II.

A.

A petition seeking to have appellant declared a ward of the court was filed on December 16, 2004, alleging that appellant had committed a second degree burglary on November 10, 2004, when he entered a locked vehicle with the intent to commit larceny or other felony. After denying the allegations of the petition at a hearing held on December 27, 2004, the prosecutor subsequently filed a motion to dismiss the petition, which was granted on March 1, 2005. Appellant then filed a petition for a finding of factual innocence, pursuant to section 781.5, subdivision (d). In addition to his petition for a finding of factual innocence, appellant also filed a companion petition seeking to seal and destroy his arrest record, pursuant to section 781.5, subdivision (c). Following a hearing on May 4, 2005, the court denied appellant the requested relief.

B.

Section 781.5, subdivision (d) states: “(d) Notwithstanding Section 781, in any case where a minor has been arrested or a citation has been issued, and an accusatory pleading or petition to adjudge the minor a ward of the court has been filed, but not sustained, the minor may, at any time after dismissal of the proceeding, request in writing from the court that dismissed the proceeding a finding that the minor is factually innocent of the charges for which the arrest was made or the citation was issued. A copy of the request shall be served on the district attorney of the county in which the accusatory pleading or petition was filed at least 10 days prior to the hearing on the minor’s factual innocence. The district attorney may present evidence to the court at the hearing. The hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made or the citation was issued, then the court shall grant the relief as provided in subdivision (c).”^[2] (§ 781.5, subd. (d).) However, a finding of factual innocence cannot be made “unless the court finds that no reasonable cause exists to believe that the minor committed the offense for which the arrest was made . . . .” (§ 781.5, subd. (b).)

A police report was completed by the San Francisco Police Department following its investigation into the incident that led to the filing of the petition. This report was attached to appellant’s petition for post-dismissal relief. In it, the reporting officers related that they were called out to the Stonestown Galleria parking lot on November 10, 2004, at 8:00 p.m. in response to a report of break-in of a parked, locked vehicle. Apparently, there had been reports of similar incidents at the lot. A witness named Darryl Evans was at the scene, who told the responding officers he observed three juveniles looking into, and trying to open the doors of, cars parked in the rear of the lot. He positively identified the three juveniles detained by police at the scene, including appellant. Mr. Evans stated that it appeared to him that appellant was acting as a lookout while the other two juveniles made entry into a black Ford Escort, took a black bag from its interior, looked through it, and then discarded it under another vehicle.

The owner of the vehicle was located and told the officers that, while the damage to the rear window of his car was old, he had locked the car when he left it, and no one had permission to enter his car or to take anything from inside it.

After being Mirandized, appellant told the officers he and his two friends were in Tower Records at the Stonestown Galleria the entire time of the incident. Appellant’s attorney submitted a declaration in support of the petition in which he stated that appellant claimed that they arrived at the Tower Records store at about 7:30 p.m. and did not leave until 9:00 p.m. Mobile telephone records showed that appellant was on his cell phone from 8:21 p.m. until 8:53 p.m. talking to his girlfriend. Another shorter call was made at 9:05 p.m. Appellant contended that the arrest occurred as a result of mistaken identity.

The trial court denied appellant’s petitions finding that appellant had failed to show there was no reasonable cause to believe that he had not committed the offense alleged. This finding is supported by substantial evidence.

At all times appellant was represented by counsel. We have concluded that there are no meritorious issues to be argued or that require further briefing on appeal.

III.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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^[1] All subsequent statutory references are to the Welfare and Institutions Code unless indicated otherwise.

^[2] Subsection (c) allows for the sealing of the arrest record upon a finding of factual innocence.