THE PEOPLE v. COSME ENRIQUE SANCHEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Cosme Enrique Sanchez appeals from an order of the superior court, denying his petition under Penal Code section 851.8, subdivision (b) to destroy his arrest records of July 20, 1967.   We affirm.

Appellant was charged in 1967 with various burglary and robbery counts, including assault with intent to commit robbery, in violation of the version of Penal Code section 220 in effect at the time.¹  The information alleged the offenses occurred on July 17, 1967.   He was convicted by jury of robbery and assault with intent to commit robbery.

A new case was brought against appellant in 1978.   A June 1978 amendment to the information erroneously described his prior conviction as assault with intent to commit rape, rather than assault with intent to commit robbery.

Appellant was arrested again in 1997 and charged with narcotics offenses.   The probation officer's report repeated the error that appellant's 1967 conviction was for assault to commit rape.   Appellant was sentenced to a term of 25 years to life and received by the California Department of Corrections and Rehabilitation on July 16, 1997.

In 1998, a state prison classification committee report stated that appellant was arrested on July 20, 1967 for assault to commit rape.   The report further noted, however, that a probation records report showed that the arrest was for a robbery and an assault with no indication of an attempted rape, so an “R” suffix, for a sex offender, was not assessed.  (Cal.Code Regs., tit. 15, § 3377.1, subd. (b).)  A 2001 report similarly cited the alleged 1967 arrest for assault to commit rape, but stated that the “R” suffix was deemed inappropriate.   A 2002 initial classification report again noted that despite a July 20, 1967 arrest for assault to commit rape, the “R” suffix was not appropriate.

In 2005, appellant appeared before another classification committee after staff members saw some inmates commit a battery against him.   Appellant explained that he was not arrested for assault to commit rape, correctly pointing out that the definition of Penal Code section 220 had changed.   The committee decided to keep appellant segregated from the general prison population, but appellant disagreed with the decision and asked that his arrest history be reviewed.

Appellant appealed the decision, stating that he was afraid he would be assaulted by other inmates because of the erroneous statement that he was arrested for a sex offense.   The appeal was denied in April 2006.   A June 2007 review again declined to address appellant's concern, stating that appellant was arrested on July 20, 1967 for assault to commit rape.

Appellant's petitions for writ of habeas corpus were denied by the superior court, this court, and the California Supreme Court.

On October 30, 2008, Robert Santos, the Assistant Manager of the Record Support Section of the Bureau of Criminal Identification and Information, wrote appellant a letter in response to appellant's various inquiries.   Santos wrote that the Los Angeles County Sheriff's Office stated that appellant was arrested on July 20, 1967 for robbery and assault to commit robbery, and that both of those offenses were related to his arrest on July 17, 1967.   He included an amended copy of appellant's state criminal history record, indicating the correction of the July 20, 1967 arrest as being for assault to commit robbery.   However, the record still erroneously stated that the arrest was on July 20, 1967, rather than July 17, 1967.

On September 28, 2009, Santos again wrote to appellant, this time acknowledging that the report erroneously stated that appellant was arrested on July 20 rather than July 17.   Santos “acknowledge[d] that this entry is connected to your arrest of July 17, 1967, and not a new event,” and stated that a “comment” was added “to show this relationship.”   Santos stated, however, that the July 20, 1967, entry “can only be deleted at the direction of the contributing agency or by order of a court having jurisdiction over the criminal matter.”

Appellant mailed an application to the Los Angeles County Sheriff's Department, requesting the sealing or destruction of the July 20, 1967 arrest record.   On December 1, 2009, the Sheriff's Department replied that it was unable to comply with his request without a petition from the court under Penal Code section 851.8 ordering the record sealed.

In January 2009 appellant petitioned for an order to seal and destroy his 1967 arrest records pursuant to Penal Code section 851.8.   On July 19, 2010, appellant again petitioned for an order to seal and destroy his 1967 arrest records pursuant to Penal Code section 851.8.

On August 10, 2010, the trial court held a hearing and denied the petition.   Appellant filed a timely notice of appeal.

After review of the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On January 28, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   On February 25, 2011, we denied appellant's motion to relieve appointed counsel and appoint new counsel, and gave him a new deadline of March 21, 2011 to file a supplemental brief.   On March 17, 2011, appellant filed a supplemental brief, asking this court to correct his arrest record of July 20, 1967.

“ ‘ “Section 851.8 is for the benefit of those defendants who have not committed a crime.   It permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law—because no objective factors justified official action—to purge the official records of any reference to such action․”  [Citation.]’  [Citation.]  ‘[A] reviewing court must apply an independent standard of review and consider the record de novo in deciding whether it supports the trial court's ruling [on a section 851.8 motion].’  [Citation.]”  (People v. McCann (2006) 141 Cal.App.4th 347, 357.)

The letters from Santos state that appellant's record has been corrected.   It is not appropriate to delete the July 1967 arrest record entirely because appellant was arrested in July 1967 for assault with intent to commit robbery, and Santos indicated in appellant's record that the July 20 arrest was not a new event, but was connected to his July 17 arrest.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112–113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Penal Code section 220 proscribes assault with intent to commit a felony and, at the time of the offense, robbery was one of the enumerated felonies;  however, the statute was amended in 1978 to delete the reference to robbery.  (Stats.1978, ch. 579, § 12, p.1982;  see also People v. Pinette (1985) 163 Cal.App.3d 1122, 1125;  People v. Soto (1977) 74 Cal.App.3d 267, 277, fn. 4.).  FN1. Penal Code section 220 proscribes assault with intent to commit a felony and, at the time of the offense, robbery was one of the enumerated felonies;  however, the statute was amended in 1978 to delete the reference to robbery.  (Stats.1978, ch. 579, § 12, p.1982;  see also People v. Pinette (1985) 163 Cal.App.3d 1122, 1125;  People v. Soto (1977) 74 Cal.App.3d 267, 277, fn. 4.)

EPSTEIN, P. J. MANELLA, J.