California Court of Appeal Feb 29, 2016 No. D068239Unpublished
Filed 2/29/16 P. v. Burleson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068239
Plaintiff and Respondent,
v. (Super. Ct. No. SCN290018)
JEFFREY T. BURLESON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Richard S.
Whitney, Judge. Affirmed.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Charles C. Ragland, and Brendon W. Marshall, Deputy
Attorneys General, for Plaintiff and Respondent.
Jeffrey T. Burleson appeals from an order denying his Penal Code section 851.81
motion for a declaration of factual innocence. Burleson contends he successfully met his
burden of establishing factual innocence. We disagree and affirm.
FACTUAL AND PROCEDURAL HISTORY
Burleson exhibited a shotgun in the presence of William Gruytch, and police
innocence for practicing medicine without a license where defendant had a valid medical
license at the time in question].) The record must not simply question defendant's guilt, it
must exonerate him. (People v. Adair, supra, 29 Cal.4th at pp. 905, 909.)
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Even if a trier of fact ultimately determines that conflicting evidence evinces
greater credibility than the evidence supporting probable cause, a finding of factual
innocence cannot be sustained. (See, e.g., People v. Scott M. (1985) 167 Cal.App.3d 688,
698-699 [upholding a rejection of factual innocence following a not guilty jury verdict in
a rape case with conflicting testimony between defendant and victim on issue of consent];
People v. Esmaili (2013) 213 Cal.App.4th 1449, 1455-1456, 1458 [upholding a
determination of no factual innocence despite magistrate's failure to hold defendant to
answer in a child sexual abuse case because of questionable credibility of child victim];
see also People v. Bleich (2009) 178 Cal.App.4th 292, 303 [upholding a determination of
no factual innocence despite magistrate's failure to bindover because of weakness of
evidence of identity of perpetrator of terrorist threats].)
On appeal from an order denying a petition for factual innocence, appellate courts
consider the issue de novo. (People v. Adair, supra, 29 Cal.4th at p. 905.)
B. Exhibiting a Firearm in a Rude, Angry, or Threatening Manner
Section 417, subdivision (2)(B), states: "Every person who, except in self-
defense, in the presence of any other person, draws or exhibits any firearm, whether
loaded or unloaded, in a rude, angry, or threatening manner . . . is punishable as . . . a
misdemeanor." Drawing or exhibiting a loaded or unloaded firearm does not require, as a
matter of the crime's definition, an intent to harm, or a likelihood of harming, any person.
"[I]t is a general intent crime that does not require an intent beyond that to do the
proscribed act." (People v. Hall (2000) 83 Cal.App.4th 1084, 1092.) A person acts in
self-defense where he actually and reasonably believes in the need to defend against an
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imminent harm. (People v. Stitely (2005) 35 Cal.4th 514, 552.) " 'When the evidence
shows the weapon was exhibited in a rude, angry or threatening manner, the offense is
complete.' " (Hall, supra, at p. 1092.)
A defendant acts in self-defense if he reasonably believed he was in imminent
danger of suffering bodily injury, believed that immediate use of force was necessary to
defend against the danger, and used no more force than was reasonably necessary to
defend against the danger. At trial, the prosecution has the burden of proving beyond a
reasonable doubt that the defendant did not act in lawful self-defense. (CALCRIM
3470.)
C. Analysis
Here Gruytch's testimony established reasonable cause that Burleson violated
section 417, subdivision (a)(2). According to Gruytch, Burleson, while agitated, pointed
a shotgun in his face and ordered him to "get the fuck off the property." This information
established reasonable cause to believe that Burleson exhibited a firearm in a threatening
manner that would cause a reasonable person to fear bodily harm in violation of section
417.3.
The fact that the district attorney dismissed the case against Burleson in the
furtherance of justice is not dispositive on the issue of his factual innocence. (People v.
Glimps (1979) 92 Cal.App.3d 315, 323-324; see Loder v. Municipal Court (1976) 17
Cal.3d 859, 876; People v. Superior Court (1968) 69 Cal.2d 491, 504.) Gruytch's
testimony, although contradicted in several respects by Burleson's, was sufficient to
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preclude a finding of factual innocence.2 (People v. Scott M., supra, 167 Cal.App.3d at
pp. 698-699.)
Burleson nonetheless maintains that because we opined in his first appeal that
there was a "reasonable probability" that he would have realized a more favorable result
had the jury been instructed on self-defense, he is entitled to a finding of factual
innocence. However, under the harmless error standard that applied to the instructional
error at issue in the previous appeal, Burleson succeeded because it was reasonably
probable that he would have achieved a more favorable result in the absence of error.
(People v. Watson (1956) 46 Cal.2d 818, 836.) That standard did not mean that no
reasonable jury could have found Burleson guilty on remand.3 (Id. at p. 836; People v.
Soojian (2010) 190 Cal.App.4th 491, 520 [recognizing that a finding of prejudice under
this standard is not tantamount to an acquittal]; People v. Adair, supra, 29 Cal.4th at
p. 909 [recognizing that even an acquittal does not establish a defendant's factual
innocence].)
2 We noted in Burleson's first appeal that "[b]y its verdict, the jury demonstrated its rejection of Burleson's theory that he did not exhibit the shotgun in a rude, angry, or threatening manner." (People v. Burleson, supra, D063898.)
3 In fact, if Burleson's argument to the contrary was correct, there would have been no reason for this court to remand the matter for further proceedings other than resentencing. 7
For these reasons, we affirm the order denying Burleson's section 851.8 motion.
DISPOSITION
The order is affirmed.
PRAGER, J.*
WE CONCUR:
NARES, Acting P. J.
McDONALD, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8
AI Brief
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Holding. The court held that the defendant failed to meet his burden of establishing factual innocence under Penal Code section 851.8 because the record contained sufficient evidence to support reasonable cause for the initial arrest.
Issues
Whether the trial court erred in denying the defendant's motion for a declaration of factual innocence under Penal Code section 851.8.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“A finding of factual innocence is appropriate only if the court concludes that no "reasonable cause" existed to believe that the arrestee committed the offense charged”
“The record must not simply question defendant's guilt, it must exonerate him.”