People v. McCann (141 Cal. App. 4th 347, 2006)

Opinion

KLEIN, P. J.

Defendant and appellant, Gerald McCann, appeals the trial court’s denial of his motion for a finding of factual innocence, under Penal Code section 851.5, following our reversal of his conviction for practicing medicine without a license (former Bus. & Prof. Code, § 2053).

The ruling is reversed, and the case is remanded to the trial court with directions to grant McCann’s motion.

BACKGROUND

After a court trial, defendant McCann, an orthopedic surgeon, was found guilty on two felony counts of violating former Business and Professions Code section 2053 (practicing medicine without a license). We reversed those convictions, holding McCann could not have violated section 2053 because he had a valid license to practice medicine at all relevant times. (People v. McCann (Feb. 23, 2005, B167088) [nonpub. opn.].)

Upon receipt of the remittitur, the trial court dismissed the charges. McCann then asked the trial court to make a finding, pursuant to section 851.8 (sealing and destruction of arrest records), that he was factually innocent. At a hearing on May 6, 2005, McCann urged the trial court to grant his section 851.8 motion.

“[Defense counsel]: [T]here were no objective factors that justified] official action. And I would base that on the discussion contained in the Court of Appeal decision, specifically at page 5, where they indicated that quote ‘McCann’s conduct did not violate [Business and Professions Code section] 2053’ and at page 6 where they indicated that ‘the Attorney General’s arguments were faulty and without support.’ [f] They went on in the opinion to say essentially that he could never be charged with practicing medicine without a license because at the time of the prosecution he in fact had a valid license issued by the medical board for all purposes. H] So I’ll submit.

“The Court: You want to be heard?

“[Prosecutor]: I will submit.

“The Court: To the extent the Court of Appeal’s decision does stand, and I respect it and I find that perhaps the actions didn’t fit technically the legal description of violation of [Business and Professions Code section] 2053, I can hardly get to the point of making a finding of factual innocence in that the actions by the doctor appeared to me to have been rather aggravated in other circumstances. And maybe they didn’t fit the language or the requirements of 2053 but to the extent to assay that there was factual innocence is beyond what I can stomach. [j[] So it is respectfully denied.”

The trial court’s minute order for May 6, 2005, states: “Defendant’s motion for factual findings of innocence is heard, argued and denied. [][] The court finds it is not supported by the evidence.”

CONTENTION

The trial court erred by denying McCann’s motion for a finding of factual innocence under section 851.8.

DISCUSSION

When this court reversed McCann’s convictions, we said: “The Attorney General’s theory lacks any apparent support from legal authority, practical usage, or the literal wording of the statute. We agree with McCann’s contention that, regardless of what other laws or regulations he may have broken, his alleged conduct could not have violated Business and Professions Code section 2053.” (People v. McCann, supra, B167088.)

McCann contends that, in light of this decision, the trial court erred when it denied him relief under section 851.8. The Attorney General claims McCann cannot seek relief under section 851.8 because he was convicted and, even if he can, that he has failed to meet section 851.8’s requirement of demonstrating there was no reasonable cause to believe he was guilty of the crimes charged. We agree with McCann that the trial court’s ruling was in error.

1. Equal protection requires that section 851.8 must apply to persons in McCann’s situation.

a. Section 851.8.

Under section 851.8 “[a]n arrested person may petition the appropriate law enforcement agency or court for destruction of an arrest record where no accusatory pleading has been filed, no conviction has occurred, or the person has been acquitted. A determination that the arrested person is factually innocent is generally required before the petition can be granted.” (4 Witkin, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 76, p. 276.)

The statute allows a person to petition the superior court for a finding of factual innocence in the following situations: “where a person has been arrested and no accusatory pleading has been filed” (§ 851.8, subds. (a) & (b)); “where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred” (§ 851.8, subd. (c)); and “[wjhenever any person is acquitted of a charge” (§ 851.8, subd. (e)).

The statute does not, on its face, offer relief to a person who has been convicted at trial and then had that conviction reversed on appeal.

McCann argues that for persons whose convictions have been reversed on appeal for insufficient evidence, it would violate equal protection to deny relief under section 851.8 and, therefore, we must construe the statute as covering this limited category of convicted defendants. We agree.

b. Equal protection principles.

“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1198 [39 Cal.Rptr.3d 821, 129 P.3d 29].) “ ‘The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. [Citation.] It also imposes a requirement of some rationality in the nature of the class singled out.’ [Citations.]” {Ibid.) “Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ [Citation.]” {Id. at p. 1199, italics added.)

“In resolving equal protection issues, the United States Supreme Court has used three levels of analysis. Distinctions in statutes that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, and can be sustained only if they are necessary to achieve a compelling state interest. Classifications based on gender are subject to an intermediate level of review. But most legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.]” {People v. Hofsheier, supra, 37 Cal.4th at p. 1199.) Under the rational relationship test, “ ‘ “ ‘a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.]’ ” ’ ” {Id. at p. 1200.) “ ‘[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts must ascertain] the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause.’ [Citation.]” {Id. at p. 1200; see People v. Fitch (1997) 55 Cal.App.4th 172, 184 [63 Cal.Rptr.2d 753] [“An equal protection challenge to a statute that creates two classifications of accused or convicted defendants, without implicating a constitutional right, is subject to a rational-basis analysis.”].)

c. McCann’s arguments.

McCann argues, “There could be no justification for allowing a defendant who is acquitted at trial to make a section 851.8 motion, while precluding such a motion from a defendant who should have been acquitted at trial, but for some egregious error by the jury or trial court. [