Filed 12/16/19 P. v. Chavez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JUAN ANTONIO CHAVEZ,

Defendant and Appellant.

D075761

(Super. Ct. No. SCS262445)

APPEAL from an order of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.

Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I.

INTRODUCTION

Juan Antonio Chavez was charged with one count of attempted kidnapping (count 1) and one count of an attempted lewd act upon a child (count 2). A jury acquitted Chavez on count 1 but was not able to reach a verdict on count 2. The trial court dismissed the case. Later, Chavez filed a petition for a finding of factual innocence and to seal his arrest record (Pen. Code, §§ 851.8, 851.91), which the court denied. Chavez requested reconsideration of the denial order, and the court confirmed its ruling to deny his petition.

Appointed appellate counsel has filed a brief presenting no argument for reversal but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). After having independently reviewed the record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2016, in a second amended information, the People charged Chavez with attempted kidnapping (§§ 664, 207, subd. (a)) and attempting to commit a lewd or lascivious act on a child under the age of 14 years (§§ 664, 288, subd. (a)). The second amended information also alleged that Chavez had suffered a violent felony prison prior, three serious felony priors, and a strike prior.

A jury trial commenced. After the jury retired for deliberations, the trial court learned that one juror had committed misconduct by looking up Chavez’s prior convictions. The court declared a mistrial.

In October 2016, Chavez was retried on counts 1 and 2. The trial court’s rulings on motions in limine bifurcated the trial on the allegations concerning his priors and excluded evidence regarding other sex crimes that Chavez had committed. The victim (Jane Doe), a girl who was 13 years old at the time of the alleged offenses, testified to the following factual scenario:

Jane was walking home from junior high school by herself, wearing tight yoga pants, when she sensed that a car was following her. She looked behind her multiple times as she walked, and each time that she looked, the car, which had a bike rack attached to it, seemed to be slowly trailing her. Jane noticed that a male was sitting in the driver’s seat, she began to panic, and started to walk a bit faster. At one point, Jane used her cell phone to call 9-1-1 because she was afraid that the car was following her. Within minutes, Jane reached a street corner, and the car stopped at the corner. The driver, Chavez, made a hand gesture and said a word in Spanish that sounded like “ben or ven.” Jane could not remember exactly what happened at the street corner. The man in the car ultimately drove away. Jane continued walking and soon stopped because police officers had arrived. A little while later, officers took Jane to a nearby street where Chavez’s vehicle was located. Jane identified Chavez’s car as the car that had been following her. In court, she identified Chavez as the driver. Before this incident, Jane had never reported being followed or made an emergency call during her walk home from school.

On count 1, the jury returned a not guilty verdict. On count 2, the jury deadlocked, and the court declared a mistrial. The court subsequently exercised its discretion to dismiss the case under section 1385. In dismissing the case, the court commented that it had heard the evidence presented at both trials and did not believe that there was sufficient evidence for a reasonable juror to find Chavez “guilty beyond a reasonable doubt.”

In October 2018, Chavez filed a petition for a finding of factual innocence and to seal his record (§§ 851.8, 851.91), contending that no facts existed in the record to support reasonable cause to believe that he committed the charged crimes.

The People filed an opposition to the petition. In their brief, which was supported by trial transcripts and police reports, the People described Chavez’s commission of four prior sex crimes in the early 1990’s, including the rape of one woman, the assault with intent to rape a second woman, and the attempted kidnappings of two other females, one of whom was a 14-year-old girl. Chavez was convicted of these crimes, sentenced to 24 years in state prison, and paroled in San Diego. His alleged pursuit of Jane Doe occurred in January 2013. Jane, who was unacquainted with Chavez and had no knowledge of his prior sex crimes, testified to facts supporting an inference that he was following her for an improper purpose. Further, at the time of Chavez’s arrest, officers found an assortment of items in his car or on his person, such as a box cutter, a condom, latex gloves, surgical masks, and an inflatable mattress. The People argued that, with knowledge of these facts, “reasonable cause” existed to believe that Chavez was attempting to kidnap Jane and commit a lewd act. The People maintained that the inability to introduce sufficient evidence at trial to establish guilt beyond a reasonable doubt did not equate to a finding of factual innocence.

Chavez filed a reply brief, principally arguing that he had not engaged in an overt act to support the charged attempt crimes.

The court held a hearing and denied Chavez’s petition for a finding of factual innocence, stating its reasoning on the record in detail. Chavez’s counsel filed a letter requesting reconsideration of the order denying the petition. At a hearing on the motion for reconsideration, the court stated that it had reconsidered its prior ruling and counsel’s arguments, and confirmed its prior ruling to deny the petition for factual innocence. This appeal followed.

III.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as a possible, but not arguable, issue:

“Whether the trial court committed error by denying the motion for reconsideration of its order denying the petition for factual innocence under section 851.8, subdivision (c).”

After this court received counsel’s brief, we gave Chavez an opportunity to file a supplemental brief, which he has not done.

A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue raised by counsel, has disclosed no reasonably arguable appellate issue. Chavez has been adequately represented by counsel on this appeal.

IV.

DISPOSITION

The order is affirmed.

AARON, Acting P.J.

WE CONCUR:

IRION, J.

GUERRERO, J.