Filed 8/29/13 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. FRANCISCO JAVIER RODRIGUEZ, Defendant and Appellant. H038055 (Santa Clara County Super. Ct. No. C1077096)

Defendant Francisco Javier Rodriguez appeals from the denial of a petition for a finding of factual innocence. Defendant contends that his trial testimony shows that he killed in self-defense, and that the trial c ourt therefore erred in failing to declare him factually innocent of the charges of murder a nd attempted murder. We conclude that the trial court properly denied defendant’s fact ual innocence petition, and we accordingly
will affirm.
F ACTUAL AND P ROCEDURAL H ISTORY On the night of May 15, 2010, defendant we nt to Club Bahia, a Milpitas nightclub, with a few friends, including Er ic Flores and Israel Quinte ro. That same night, Jorge Soto went to Club Bahia with a group of friends, including Ed win Reyes, Marobert2 Flores, 1 and Gabriel Diaz. When Club Bahia clos ed at 1:30 a.m. on May 16, 2010, Soto and members of his group fought with member s of defendant’s group. Eric suffered a punch to the face during the fight. Security guards used pepper spray to break up the fight. After the fight ended, Diaz heard defendant tell Soto, “I’m gonna catch you slipping.” 2 That phrase is slang for sneaking up on someone or retaliating against

someone. Soto’s group and defendant’s group left Club Bahia. Soto’s group went to Tacos al Carbon, a San Jose restaurant. One of defendant’s friends drov e defendant, Eric, and Quintero to defendant’s house. Defendant, Er ic, and Quintero got in to defendant’s SUV,
and defendant drove toward Tacos al Carbon. During the drive, Er ic complained about being punched and said that he “wanted to get them back.” Defendant’s SUV pulled into the Tacos al Carbon parking lo t 15 to 20 minutes after Soto’s group had arrived at Tacos al Carbon. Soto, Reyes, and several of their friends were standing in the parking lot. Quin tero heard Eric say, “There’s the guy over there.” Quintero heard defendant respond, “N ah, it’s too much of a coincidence that he
would be here too.”

1 Because Eric Flores and Marobert Flor es share the name Flores, this opinion will refer to the men as Eric and Marobert.

2 A police officer spoke with Diaz shortly after the charged offenses occurred. The police officer testified that Diaz stated that the “suspect” yelled and cursed at Soto at Club Bahia, and that the “suspect” said, “[W] e’re gonna catch you s lipping.” Defendant contends that the suspect refe rred to by the offi cer was Eric. Defendant’s contention is unpersuasive. Given Diaz’s te stimony that defendant argued with Soto at Club Bahia and Diaz’s testimony that he told the officer that de fendant was in an alte rcation with Soto at Club Bahia, we cannot conclude that the susp ect referred to by the officer was necessarily Eric. Moreover, Diaz’s trial testimony rega rding defendant’s “slipping” comment was consistent with his preliminary hearing testim ony. At the preliminary hearing, Diaz also testified that defendant told Soto, “I’m gonna catch you slipping.”3 Reyes saw defendant’s SUV stop “in the mi ddle of the parking lot, lights off, for a cool minute.” Soto said, “It’s the guys we were fighting at the club.” Reyes said, “Fuck
it. Let’s do them one on one.” Defendant’s SUV began driving through the parking lot, and Soto, Reyes, and five to 10 of their friends ran toward the SUV. When Soto’s group was approximately eight feet away from the SUV, Reyes saw defenda nt reach under his seat. Reyes believed that defendant was reachi ng for a gun. Defendant smiled, and Soto said that defendant was “bluffing.” Defendant then pulled out a gun, continued driving, and fired at Soto’s group. Reyes felt a bulle t go by his head. Two bu llets hit Soto, fatally wounding him. Defendant acce lerated and drove the SUV out of the parking lot. After the SUV left the parking lot, Reyes sa w that Marobert’s arm was injured.
Marobert testified that he was intoxicated at the time of the shooting, and that he did not remember whether he was present in the parking lot when the shooting occurred. At trial, defense counsel asked Reyes wh ether Marobert was running behind Reyes toward defendant’s SUV. Reye s responded, “I guess. I don’t know. I guess he was.” At the preliminary hearing, Reyes testified that Marobert ran with Soto and Reyes toward
defendant’s SUV.
Defendant fled the San Jose area after the shooting, and he was arrested at the Mexican border on May 17, 2010. Defendant spoke with the police. Defendant never told the police that he fired the gun in self-d efense, and he never told the police that he believed his life was in dange r in the parking lot. Police found two 25-caliber shell casings in defendant’s SUV. Immediately after the shooting, police found two 25-caliber she ll casings near Soto’s body. Two bullets were removed from Soto’s body. The defense theory of the case was self-defense. Defendant testified that he drove to Tacos al Carbon, the only restaurant open la te at night, in order to get burritos. He4 explained that the gun was in the SUV because Eric had left it there several hours before the shooting. Defendant never checked to see if the gun was loaded. Defendant testified that when he pulled his SUV into the Tacos al Carbon parking lot, “a lot of people” ran toward the SUV. The people were screaming and cursing at defendant. They said, “Stop the fucking truck. We’re gonna fucking fuck you up.” They also said, “Where’s your little faggot ass sc rap homey?” The use of the word “scrap” made defendant believe the people were members of the Norteño gang. Defendant noticed that some of the people in the advanc ing group had been involved in the fight at
Club Bahia. Defendant was afraid that the people were going to punch him. When the person at the front of the advancing group was approximately eight feet away from defendant’s SUV, defendant fired a warning s hot to scare the group away. Reyes said, “You think you’re gonna scare me with that shit?” Defendant saw Reyes lift up his shirt
and reach toward his waist. Defendant fe ared that Reyes was going to “take out a weapon and start shooting,” so defendant lean ed forward and fired the gun. Defendant quickly drove out of the parking lot becaus e he feared he was going to be shot. Defendant explained that he fled to Mexico because he fe ared Norteño gang members would retaliate against him. Defenda nt admitted that his fear of “going to jail for the rest of [his] life” also caused him to flee. Defendant denied making a comment rega rding “slipping” at Club Bahia, and he explained that he merely pulled Eric away from the fight. Defendant denied stopping his SUV in the Tacos al Carbon pa rking lot. He explained that he was driving while the group ran toward his SUV, and that he was dr iving while he fired the shots. Defendant also denied that Eric pointed out Soto’s gr oup when defendant drove into the Tacos al Carbon parking lot. Defendant ad mitted that he fired at least f our bullets at Soto’s group.5 An information charged defendant with murder of Soto (Pen. Code, § 187), 3 attempted murder of Reyes (§§ 664/187 ), and attempted murder of Marobert (§§ 664/187). The information alleged th at defendant personally and intentionally discharged a firearm in the commission of th e charged offenses (§ 12022.53, subds. (c) & (d)), and that defendant intentionally k illed by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)). Defendant’s case proceeded to a jury trial. At the close of th e prosecution’s casein-chief, defendant move d, pursuant to section 1118.1, fo r a directed verdict of acquittal on the charge of attempted murder of Marobert. The trial court granted the motion. The jury acquitted defendant of the remaining charges. Defendant filed a petition for a finding of factual inno cence, pursuant to section 851.8, arguing that the evidence established that he acted in self-defense. The trial court denied the factual innocence petition, finding that there was reasonable cause to believe
that defendant committed the ch arged offenses. In support of its conclusion, the trial
court cited the fact that defe ndant “did not see anyone from Mr. Soto’s group brandish a weapon,” the fact that defendan t “fired from a moving vehicle,” and the fact that the gun “could have been removed from [defendant ’s] vehicle earlier in the evening.” Defendant filed a notice of appeal, stating th at he sought to appeal the denial of the factual innocence petition. Defendant’s timely appeal followed.
D ISCUSSION Defendant contends that th e trial court erred in deny ing his factual innocence petition, and he urges us to reverse the denial of the petition. Defendant argues that he is factually innocent of all the charged offenses because the evidence—particularly his trial testimony—shows that he acted in lawful self-d efense. He alternatively argues that “this

3 Subsequent unspecified statutory references are to the Penal Code.6 court should at the very least reverse the de nial as to the char ge against Marobert” because Marobert failed to testify that he was part of the group that ran toward the SUV.
We conclude that there is reasonable cause to believe that defendant committed the charged offenses. We therefore will affi rm the trial court’s denial of the factual innocence petition. The Statutory Framework of Section 8 51.8 and the Standard of Review Section 851.8 permits a pe rson who has been arrested and charged with an offense, but not convicted of th e offense, to petition the trial court for a finding of factual innocence. (§ 851.8, subds. (c) & (e).) Section 851.8, subdivision (b) sp ecifies that a finding of factual innocence “shall not be ma de unless the court finds that no reasonable
cause exists to believe that the arrestee co mmitted the offense for which the arrest was made.” Section 851.8, subdivision (b) further states: “[T]he initial burden of proof shall rest with the petitioner to show that no reasonab le cause exists to believe that the arrestee
committed the offense for which th e arrest was made. If the c ourt finds that this showing of no reasonable cause has been made by th e petitioner, then the bu rden of proof shall shift to the respondent to show that a reasona ble cause exists to believe that the petitioner
committed the offense for which the arrest was made.”
“ ‘ “ ‘Reasonable cause’ ” ’ is a well-estab lished legal standard, ‘ “defined as that
state of facts as would lead a man of or dinary care and prude nce to believe and conscientiously entertain an honest and stro ng suspicion that the person is guilty of a crime.” ’ ” ( People v. Adair (2003) 29 Cal.4th 895, 904 ( Adair ).) Thus, to be entitled to
relief under the reasonable cause standard artic ulated in section 851.8, a petitioner “must
establish that facts exist wh ich would lead no pe rson of ordinary care and prudence to believe or conscientiously entertain any hon est and strong suspicion that the person arrested is guilty of the crimes charged.” ( People v. Matthews (1992) 7 Cal.App.4th 1052, 1056; see Adair, supra, 29 Cal.4th at p. 904.) “To meet this burde n, the petitioner7 must show more than a viable defense to the crime. He . . . must establish ‘ “that there was no reasonable cause to arrest him in the first place.” ’ ” ( People v. Medlin (2009) 178 Cal.App.4th 1092, 1102.) Petitioners must “ ‘show that the state should never have subjected them to the compulsion of the criminal law—because no objective factors justified official action . . . .’ ” ( Adair, supra, 29 Cal.4th at p. 909.) “In sum, the record must exonerate, not merely raise a s ubstantial question as to guilt.” ( Ibid. ) Section 851.8 therefore “precludes a finding of factual innocence if any reasonable cause exists to believe the [petitioner] committed the charged offense.” ( Id. at p. 907, italics in original.) When ruling on a section 851.8 petition, a court is “ not limited to the evidence presented at trial.” ( Medlin, supra, 178 Cal.App.4th at p. 1101.) The court “may consider any evidence relied upon to arrest an d charge,” as well as “facts disclosed after arrest.” ( Id. at pp. 1101-1102.) The court “may consider otherwise inadmissible evidence—such as police reports and evidence suppressed pursuant to section 1538.5.” ( Adair, supra, 29 Cal.4th at p. 905.) When reviewing a trial court’s ruling on a section 851.8 petition, an appellate court “must apply an independent standard of review and cons ider the record de novo in deciding whether it supports the trial court’s ruling.” ( Adair, supra, 29 Cal.4th at p. 905.) “[A]lthough the appellate court should defer to the trial court’s factual findings to the extent they are supported by substantial evidence, it must inde pendently examine the
record to determine whether the [petitioner] has establishe d ‘that no reasonable cause exists to believe’ he or she committed the offense charged.” ( Id. at p. 897.) The Trial Court Properly Denied Defendant’s Petition The trial court properly concluded that there is reasonable cause to believe that
defendant committed murder of Soto and attempted murder of Reyes and Marobert. Contrary to defendant’s assertion, the eviden ce does not establish that he fired the gun in
lawful self-defense.8 The “right of self-defense is limited to the use of such force as is reasonable under the circumstances.” ( People v. Pinholster (1992) 1 Cal.4th 86 5, 966, overruled on another point in People v. Williams (2010) 49 Cal.4th 405, 459 .) A defendant therefore
does not act in lawful self-defense where he employs “deadly force to repel a nonlethal attack.” ( Ibid. ) Here, defendant used deadly force in response to nonlethal conduct. The
evidence shows that members of Soto’s group threatened to fight defendant and ran
toward defendant’s SUV. Defe ndant continued to drive as So to’s group advanced toward
the SUV. None of the members of Soto’s group brandished a wea pon, and defendant did not testify that he saw anyone carrying a weap on. Rather, defendant testified that he merely saw Reyes lift his shirt and reach toward his waist. Given the circumstance that no one in Soto’s group displaye d a deadly weapon, combined with the circumstance that defendant was protected by his moving SUV, we cannot conclude that defendant was
entitled to use lethal force. Defendant’s firi ng of the gun therefore cannot be considered a lawful act of self-defense. (See generally People v. Clark (1982) 130 Cal.App.3d 371, 380, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92 [a
misdemeanor assault must be suffered withou t the privilege of re taliating with deadly force].) Moreover, the evidence suggests that defe ndant planned to kill members of Soto’s group, thereby providing reason able cause to believe that defendant committed murder and attempted murder. (See People v. Leon (2010) 181 Cal.App.4th 452, 463 [a defendant is guilty of premed itated murder or attempted mu rder where he engages in premeditation and acts with the specific intent to kill].) Immediatel y after the fight at Club Bahia, Diaz heard defendant make a threat to retaliate against Soto. Shortly after the fight, defendant brought a lo aded gun to the Taco s al Carbon parking lot, the location at which Soto’s group was socializing. Upon arriving at the parking lot, Quintero heard Eric tell defendant, “There’s the guy over ther e.” Reyes testified that defendant’s SUV9 stopped for a “cool minute” after it pulled into the parking lot, and that defendant then smiled and fired multiple shots at Soto’s gro up. Because the foregoing evidence suggests
that defendant traveled to the parking lot with the intent to kill members of Soto’s group,
the record does not exonerate defendant of th e crimes of murder and attempted murder. Indeed, the circumstance that defendant fled to Mexico after the shooting bolsters the
conclusion that defendant is not factually innocent. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1030 [flight after the commission of a crime shows consciousness of guilt].) The trial court therefore properly co ncluded that defendant is not factually
innocent of the crimes of murd er and attempted murder. Finally, we conclude that there is r easonable cause to believe that defendant committed attempted murder of Marobert. A lthough Marobert testified that he did not
remember the events surroundi ng the shooting, other evidence suggests that defendant committed attempted murder of Marobert. At the preliminary hear ing, Reyes testified
that Marobert ran with Soto an d Reyes toward defendant’s SUV. At trial, Reyes testified
that he noticed an in jury on Marobert’s ar m after the shooting. A police report regarding the shooting states that “[f]ra gments from one bullet struck Marobert” and caused “minor injury.” 4 This evidence provides reasonable cause to believe that defendant fired a shot
at Marobert. Defendant therefore is not f actually innocent of attempted murder of Marobert. (See generally People v. Medlin, supra, 178 Cal.App.4th at p. 1102 [to establish factual innocence, a defendant must show that there was no reasonable cause to arrest him in the first place].)

4 The parties do not mention the police repor t in their briefs. The police report is located at page five of the of the clerk’s tr anscript. Because we are required to consider the record de novo, we may consider the polic e report in determining the issue of factual innocence. (See Adair, supra, 29 Cal.4th at p. 905 [when reviewing a trial court’s ruling on a factual innocence petition, the reviewing c ourt “must apply an independent standard of review and consider the record de novo”].)10 In summary, the evidence pr ovides reasonable cause to believe that defendant committed the charged offenses. We accordingly conclude that the trial court did not err in denying defendant’s factual innocence petition.
D ISPOSITION The order denying de fendant’s petition for a finding of factual innocence is
affirmed.

__________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ ELIA, J.