Filed 2/29/16 P. v. Burleson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
arrested him. The district attorney charged Burleson with exhibition of a firearm under
section 417, a misdemeanor, and assault with a firearm under section 245, subdivision
(a)(2), a felony. At trial, both Burleson and Gruytch testified to conflicting versions of
the events that gave rise to the charges.
A. Gruytch's Testimony
According to Gruytch, he went to Burleson's house to serve a subpoena on Erin
Blanco, began to walk away, but heard the front door close behind him. When he turned
around, he saw Burleson standing outside the door pointing a shotgun in his direction.
Gruytch explained that he was a process server and had legal documents for Erin Blanco.
Burleson became agitated, pointed his shotgun at Gruytch's face, and told him to "get the
fuck off the property." Gruytch threw the legal papers down, left the scene, and called
the police.
B. Burleson's Testimony
Burleson testified that at around 8:00 p.m. he heard knocking at the front door,
which became increasingly louder. Aggravated, he went to the door, peered through the
1 All further statutory references are to the Penal Code unless otherwise noted. 2 peephole, and saw a stranger. Concerned for the safety of his family, Burleson attempted
to call the police, but his cellphone did not work. Burleson retrieved a shotgun from his
bedroom, placed some shotgun shells in his pocket, and told his wife and children to stay
in the back of the house. He went to the front door and again asked who was there, but
received no response. He looked through the peephole and saw Gruytch.
Burleson opened the door and stepped outside, pointing the shotgun barrel at the
ground. Gruytch asked for Blanco, but Burleson denied knowing her and told Gruytch to
leave or he would have him arrested for trespassing. After the men exchanged a few
words, Gruytch dropped papers in front of Burleson and left. Although Burleson felt
threatened by Gruytch, he denied pointing the shotgun in Gruytch's direction. He also
claimed that Gruytch never identified himself as a process server.
C. Procedural History
A jury convicted Burleson of improper exhibition of a firearm under section 417,
but acquitted him of assault with a firearm. On appeal Burleson contended that the trial
court should not have refused to instruct the jury on self-defense. We agreed, reversed
the conviction for violation of section 417, and remanded the case to the trial court for
further proceedings. (See People v. Burleson (Mar. 18, 2014, D063898 [nonpub. opn.].)
Upon remand, the district attorney dismissed the charges against Burleson "in the
interest of justice" based primarily on his lack of a criminal record before and after his
conviction. Thereafter, Burleson moved under section 851.8 for a finding of factual
innocence. After a brief hearing in which no new evidence was presented, the court
denied his motion. Burleson appeals the resulting order.
3 DISCUSSION
A. The Legal Standard for Determining Factual Innocence
"In any case where a person has been arrested, and an accusatory pleading has
been filed, but where no conviction has occurred, the defendant may, at any time after
dismissal of the action, petition the court that dismissed the action for a finding that the
defendant is factually innocent of the charges for which the arrest was made." (§ 851.8,
subd. (c).) A judicial determination of factual innocence may be based upon declarations,
affidavits, police reports, or any other material, relevant and reliable evidence. (§ 851.8,
subd. (b).)
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
(People v. Adair (2003) 29 Cal.4th 895, 904), i.e., that the state of facts would not have
" 'lead a man of ordinary care and prudence to believe and conscientiously entertain an
honest and strong suspicion that the person [was] guilty of a crime.' " (People v.
Rhinehart (1973) 9 Cal.3d 139, 151, disapproved on another ground in People v. Bolton
(1979) 23 Cal.3d 208, 213-214; People v. Price (1991) 1 Cal.4th 324, 410.) Sufficient
evidence to establish probable cause will generally preclude a finding of factual
innocence. (People v. McCann (2006) 141 Cal.App.4th 347, 358 [finding factual
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.)
4 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
Free access — add to your briefcase to read the full text and ask questions with AI
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
arrested him. The district attorney charged Burleson with exhibition of a firearm under
section 417, a misdemeanor, and assault with a firearm under section 245, subdivision
(a)(2), a felony. At trial, both Burleson and Gruytch testified to conflicting versions of
the events that gave rise to the charges.
A. Gruytch's Testimony
According to Gruytch, he went to Burleson's house to serve a subpoena on Erin
Blanco, began to walk away, but heard the front door close behind him. When he turned
around, he saw Burleson standing outside the door pointing a shotgun in his direction.
Gruytch explained that he was a process server and had legal documents for Erin Blanco.
Burleson became agitated, pointed his shotgun at Gruytch's face, and told him to "get the
fuck off the property." Gruytch threw the legal papers down, left the scene, and called
the police.
B. Burleson's Testimony
Burleson testified that at around 8:00 p.m. he heard knocking at the front door,
which became increasingly louder. Aggravated, he went to the door, peered through the
1 All further statutory references are to the Penal Code unless otherwise noted. 2 peephole, and saw a stranger. Concerned for the safety of his family, Burleson attempted
to call the police, but his cellphone did not work. Burleson retrieved a shotgun from his
bedroom, placed some shotgun shells in his pocket, and told his wife and children to stay
in the back of the house. He went to the front door and again asked who was there, but
received no response. He looked through the peephole and saw Gruytch.
Burleson opened the door and stepped outside, pointing the shotgun barrel at the
ground. Gruytch asked for Blanco, but Burleson denied knowing her and told Gruytch to
leave or he would have him arrested for trespassing. After the men exchanged a few
words, Gruytch dropped papers in front of Burleson and left. Although Burleson felt
threatened by Gruytch, he denied pointing the shotgun in Gruytch's direction. He also
claimed that Gruytch never identified himself as a process server.
C. Procedural History
A jury convicted Burleson of improper exhibition of a firearm under section 417,
but acquitted him of assault with a firearm. On appeal Burleson contended that the trial
court should not have refused to instruct the jury on self-defense. We agreed, reversed
the conviction for violation of section 417, and remanded the case to the trial court for
further proceedings. (See People v. Burleson (Mar. 18, 2014, D063898 [nonpub. opn.].)
Upon remand, the district attorney dismissed the charges against Burleson "in the
interest of justice" based primarily on his lack of a criminal record before and after his
conviction. Thereafter, Burleson moved under section 851.8 for a finding of factual
innocence. After a brief hearing in which no new evidence was presented, the court
denied his motion. Burleson appeals the resulting order.
3 DISCUSSION
A. The Legal Standard for Determining Factual Innocence
"In any case where a person has been arrested, and an accusatory pleading has
been filed, but where no conviction has occurred, the defendant may, at any time after
dismissal of the action, petition the court that dismissed the action for a finding that the
defendant is factually innocent of the charges for which the arrest was made." (§ 851.8,
subd. (c).) A judicial determination of factual innocence may be based upon declarations,
affidavits, police reports, or any other material, relevant and reliable evidence. (§ 851.8,
subd. (b).)
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
(People v. Adair (2003) 29 Cal.4th 895, 904), i.e., that the state of facts would not have
" 'lead a man of ordinary care and prudence to believe and conscientiously entertain an
honest and strong suspicion that the person [was] guilty of a crime.' " (People v.
Rhinehart (1973) 9 Cal.3d 139, 151, disapproved on another ground in People v. Bolton
(1979) 23 Cal.3d 208, 213-214; People v. Price (1991) 1 Cal.4th 324, 410.) Sufficient
evidence to establish probable cause will generally preclude a finding of factual
innocence. (People v. McCann (2006) 141 Cal.App.4th 347, 358 [finding factual
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.)
4 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
5 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
6 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