Free Declaration in Support - District Court of California - California

Case 4:07-cv-04894-SBA

Document 54-4

Filed 06/24/2008

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EXHIBIT 3

Case 4:07-cv-04894-SBA

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Case 4:07-cv-04894-SBA

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J o h n F . LernMon Law O f f i c e s o f J o h n F . LemMon, J D , MBA 1 3 7 5 0 Arnold D r i v e PO Box 826 G l e n E l l e n , CA 95442-0826 Attorney f o r Defendant R o b e r t C a r l P a t r i c k Keane

S U P B R 1 OCOURT oF ~ C o U OF SONoMA ~ ~ ~

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BY

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SONOMA
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The P e o p l e o f t h e S t a t e o f
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California,
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Plaintiff,
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VS

.
Defendant.

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R o b e r t C a r l P a t r i c k Keane,
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'~ime:
Dept :

1

C a s e N o . : SCR 502356

o t i c e of M o t i o n / P e t i t i o n and otion/Petition f o r Finding o f Factual Innocence thereon

Date:

4-2249
/30,&

3
2 %
2007 at

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15

Please
16

take

notice

that

on

&E?f

13b
Patrick

M/PM,
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o r a s soon t h e r e a f t e r a s t h e m a t t e r may b e h e a r d i n D e p r t the above-entitled court, Defendant the Robert Carl

3 of
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Keane w i l l ,
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and h e r e b y does,

move

court

for a

finding of

f a c t u a l innocence a n d o r d e r thereon.
SUMMARY
21

On
22

or

about

December

15,

2006, count

the felony and

People

of

the

State

of the

California
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filed Post

a

two

complaint

against

defendant.
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arraignment, that the

pre-preliminary was a

hearing of

investigation
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revealed

defendant

victim

R e q u e s t f o r Order: F a c t u a l I n n o c e n c e -

Law O f f i c e s o f J o h n F . LernMon, J D , MBA 1 3 7 5 0 A r n o l d D r i v e , P Box 8 2 6 O

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Case 4:07-cv-04894-SBA

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identity theft.

On March 1 3 , 2007 t h e p r e l i m i n a r y h e a r i n g was

v a c a t e d and t h e c a s e was d i s m i s s e d . This Petition to seal
and

destroy

arrest

records

under

P e n a l Code 5851.8 t i m e l y f o l l o w s .
Petition

5

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R o b e r t C a r l P a t r i c k Keane h e r e b y p e t i t i o n s f o r a d e c l a r a t i o n
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8 9

o f f a c t u a l i n n o c e n c e p e r P e n a l Code s e c t i o n 8 5 1 . 8 a n d , subsequently, f o r t h e a r r e s t record t o b e s e a l e d f o r t h r e e y e a r s from t h e d a t e o f t h e a r r e s t a n d t h e r e a f t e r d e s t r o y e d . Information r e l a t i n g t o t h e a r r e s t : Name, L a s t : Keane F i r s t : R o b e r t C a r l P a t r i c k A d d r e s s : 307 North F e r n d a l e Avenue, M i l l V a l l e y , CA Phone No. : ( 4 1 5 ) 388-7179 Date o f B i r t h : 1 2 - 1 3 - 5 7 D r i v e r ' s L i c e n s e No.: N4197894 94941

lo
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13

l4
l5

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D a t e o f A r r e s t : 12-19-06 A r r e s t i n g Agency: DEA

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C h a r g e : P e n a l Code § 5 1 1 3 5 9 , 1 1 3 6 0 ( a )
20

D a t e d H-rm~h - 2007. Z3,
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M (C n

R e s p e c t f u l l y Submitted,
22

John F. LemMon
AGREEMENT

d~&
h a s reveiewed i t ' s f i l e s i n P e t i t i o n and h a s no
O f f i c e s o f John F . LemMon, JD, MBA 13750 A r n o l d D r i v e , PO Box 8 2 6

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OFFICE OF PROSECUTOR

The Sonoma County D i t h i s m a t t e r , and h a

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R e q u e s t f o r O r d e r : Factu

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Case 4:07-cv-04894-SBA

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o p p o s i t i o n t o t h i s P e t i t i o n for F i n d i n g o f F a c t u a l I n n o c e n c e

Deputy D i s t r i c t A t t o r n e y

TO BE COMPLETED BY COURT HAVING JlTRISDICTION OVER THE OFFENSE
oma C o u n t y S u p e r i o r C o u r t

A r r e s t e d : 12-19-0

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13

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S i g n a t u r e Court O f f i c e r :
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ad
Son

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DECLARATION OF ACTUAL INNOCENCE UNDER PENAL CO E SECTION 851.8

Declared by Sonoma County S u p e r i
F o r R o b e r t C a r l P a t r i c k Keane H a v i n g j u r i s d i c t i o n i n t h e mat d e t e r m i n e d t h a t t h e above-named i n n o c e n t of t h e a r r e s t i n d i c a t e Hereafter, the a r r e s t s h a l l be

\

ence Antolini a C o u n t y S u p e r i o r Court Judge

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Request for Order: Factual Innocence- - - - - - - - - - - - - - - -- - - -- -

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Case 4:07-cv-04894-SBA

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ions relating t o t h e arrest

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7

Date: A p r i l
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9

The H o n o r a b l e L a w r e n c e Antolini S u p e r i o r C o u r t Judge

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R e q u e s t f o r Order: Factual I n n o c e n c e -

Law O f f i c e s of J o h n F. LemMon, J D , M A B 1 3 7 5 0 A r n o l d D r i v e , PO Box 8 2 6
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Case 4:07-cv-04894-SBA

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EXHIBIT 3(b)

Case 4:07-cv-04894-SBA

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STEPHAN R. PASSALACQUA, #I38293 District Attorney, County of Sonoma Hall of Justice, Room 2 12-J 600 Administration Drive Santa Rosa, CA 95403 (707) 565-23 1 I TROYE SHAFFER, #203418 Deputy District Attorney 6 Attorney for the People SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA THE PEOPLE OF THE STATE OF CALIFORNIA, ) Court No.: SCR-502356 Plaintiff. ) D.A. No.: DAR-543495 v.

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) PEOPLE'S OPPOSITION TO ) PETITION FOR A FINDING OF ) FACTUAL INNOCENCE

1

) Courtroom No.: 3

j

ROBERT CARL PATRICK KSANE, Defendant.

) Hearing: May 22.2007, at 1 :30 n m .

1

/

STATEMENT OF THE CASE

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2o

L' People respectfully request that Defendant's petition be denied at this time. The People base this
nq

1I/

I 1

Defendant, ROBERT CARL PATRICK KEANE, was charged by way of FeIony Complaint SCR-502356 with violation of Health & Safety Code 113 59, 11360(a). On March
13,2007, the People moved to dismiss the case in accordance with the interests of justice.

On April 25,2007, Defendant filed a Petition for a Finding of Factual Innocence. The

opposition on the ground that at the time of Defendant's arrest for the offenses, probable cause 23

11 indeed existed for the arrest.

28
OPPOSITION TO PETITION FOR A FINDING OF FACTUAL INNOCENCE

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FACTUAL SUMMARY

On November 29,2006, Maureen McGuigan, owner of the Petaluma Mail Depot, received a package from a customer identifying hinlself as Robert Carl Patrick Keane. The box for shipment listed the man's return address as 307 North Ferndale Avenue, in Mill Valley, California, zip code 94941. The addressee was listed as Kerry Keane, 39 Sandy Point, Bricktown, New Jersey, zip code 08723. Ms. McGuigan requested the sender's telephone number in order to contact him if there were problems with the delivery. The sender refused, stating that he did not want to receive

4
5

G 7 8
9

10 marketing calls. Ms. McGuigan explained that the request was for her database only, and would 11
not be seen by others. The man firmly refused. Ms. McGuigan was suspicious, and asked the

12 man if he was attempting to ship narcotics. He replied that he was sending clothes to his niece

13 for her birthday. Ms. McGuigan recognized the man's name in her computer as a previous 14 customer, however, and let the subject drop. 15
After the customer left, he called Ms. McGuigan to change the address on the package.

16 Her suspicions unyielding, she opened the parcel in accordance with the Mail Depot's reserved

17 right to open any package. Cutting through one of the bundles within the box, Ms. McGuigan 18 smelled a strong odor of marijuana. At this time, she transported the box to the Petaluma Police 19 Department and met with Sergeant Stephenson. 20 21 22 23 24
25 26 Drug Enforcement Administration Special Agent McMullen responded to the station and assumed custody of the package of marijuana bundles. A controlled FedEx delivery to the New Jersey address was organized with the DEA and Detective Shepherd of the Brick Township Police Department in that state. Suspects Brian and Susanne Keane were consequently arrested on suspicion of receiving the marijuana. The addressee on the package, Kerry Keane, is the couple's three-year-old daughter.
/I

27 28

N
N
OPPOSITION TO PETITION FOR A FINDING OF FACTUAL INNOCENCE
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In the interim, on November 30, 2006, Agents McMullen and Hoyt spoke with Ms.
2

)/ McGuigan at the Mail Depot, and showed her a photograph of a possible suspect responding to

3

4

5
6

11I
1 I I

l

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the name of Robert Carl Patrick Keane. Ms. Guigan positively identified the photograph as depicting the customer who attempted to ship marijuana on the prior day. From her database, Ms. McGuigan was also able to tell the agents that the same customer had sent a package to the identical New Jersey address on May 3 1,2006.
.

l

Subsequently, Ms. McGuigan reviewed a photographic lineup and selected a photograph which did not depict Defendant. She remained steadfast in her identification of Defendant from the November viewing. As far as law enforcement is aware, the available evidence does not

I
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I

8
9
10

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12 November 29,2006.

I 1 I

I conclusively establish that Defendant was not the individual who successfully shipped a package I
on May 3 1,2006, and attempted to ship a package of marijuana from the Mail Depot on

111.

ARGUMENT
DEFENDANT IS NOT ENTJTLED TO A FINDING OF FACTUAL INNOCENCE.

California Penal Code $85 1.8(c) states: 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 which dismissed the action for a finding that the defendant is factually innocent of the charges for which the -arrestwas made. A copy of such petition shall be served on the district attorney of the county in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner's factual innocence. The district attorney may present evidence to the court at such hearing. Such hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the cour-t shall grant the relief as provided in subdivision (b).
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I

(1

In the case of People

I.

Adair (2001) 29 Cal. 4th 895, the jury found the defendant not

guilty of the charged offenses. The defendant then petitioned the court for a finding of factual innocence, which the trial court granted. The People appealed, and the Court of Appeals reversed, holding that the trial court abused its discretion. The Califor~lia Supreme Court affirmed, stating that ll[t]lle arrestee [or defendant] thus must establish that facts exist which
OPPOSITION T O PETlTlON FOR A FINDING OF FACTUAL INNOCENCE

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would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged. [Citation.]" People 1). Aduir, szpru, 29 Cal. 4th 895,904. The Court emphasized, "a finding of factual innocence 'shull not be mode unless the court finds that no reasonable cause exists to

2
3

4

5 believe' the defendant committed the offense charged." (Italics in original.) People v. Aduir,

6 szpru, 29 Cal. 4th 895, 906.
7 In the matter at bar, an arrest was made based upon probable cause. Law enforcement

8 received information from a witness, made further inquiries, and corroborated the information 9 with results of their investigation. A warrant was issued on the basis of these representations.
10 Subsequently, the strength of the initial information shifted; initially resolute in her
.. I 1

I l (1

identification, the witness changed her mind after reviewing additional photographs. At the time
of Defendant's arrest, there was a clear showing of probable cause. Based on the California

I I1

Supreme Court's interpretation of Penal Code 85 1.8 in Adair, Defendant is not entitled to a finding of factual innocence at this time. Moreover, if there is a pending civil action filed against the arresting officers or respective agencies, there is no relief available at this time to Defendant, pursuant to Penal Code §851.8(1~). It is Defendant's burden to establish that relief is proper and to produce evidence in promotion of any claims of factual innocence.

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IV. CONCLUSION On the basis of the foregoing facts and case law, the People respectfully request that Defendant's petition be denied at this time.

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DATED:

5/1-7107

Respectfully Submitted:

8 9
10 11 12 13
14

STEPHAN R. PASSALACQUA, District Attorney County of Sonoma, State of California

BY:

Prepared by Caitlin M. Casey, Certified Law Student

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OPPOSITION TO PETITION FOR A FINDING OF FACTUAL INNOCENCE

Case 4:07-cv-04894-SBA

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PROOF OF SERVICE STATX OF CALIFORNIA, COUNTY OF SONOMA
I, the undersigned, state that I am employed in the County of Sonoma; I am over eighteen years of age and not a party to the within-entitled action; my business address is Hall of Justice, 600 Administration Drive, Santa Rosa, California, 95403-2870.

I am serving today the following document(s) described in

PEOPLE'S OPPOSITION TO PETITION FOR A FINDING O F FACTUAL INNOCENCE on the interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as iollow:

JOHN I?. LEMMON L a w Offices of John F. LernMon P.O. Box 826 Glen Ellen, CA 95442
Attorney for Defendant

ROBERT CARL PATRTCK KEANE

17

BY MAIL: I am "readily familiar" with this office's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on the same day with postage thereon fully prepaid at Santa Rosa, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter,date is more than one day after date of deposit for mailing in affidavit.

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BY FACSIMILE: I am serving said document(s) to be transmitted by facsimile pursuant to Rule 2008 of the California Rules of Court. The telephone number(s) of the sending facsimile machme is 707-565-2482 or 707-565-2762. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. I am prepared to present a transmission report confirming that the transmission was complete and vrrithout error issued by the sending facsimile machine (or the machine used t o forward the facsimile).
BY HAND DELIVERY: I caused such document(s) to be delivered by hand t o the office
or proper representative of the addressee(s).

17

d

BY ATTORNEY BOX: I caused such document(s) to be delivered to the specified courthouse box of the foregoing attorney andlor firm:-.

I declare under penalty of perjury under the laws of the State of California that tile foregoing is true and correct. Executed 7 / 1 7 107 , at Santa Rosa, Californi

-44.

cdC;eY Certified Law Clerk

Case 4:07-cv-04894-SBA

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Case 4:07-cv-04894-SBA

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PageCOURT FILE COPY 15 of 15

Case # S C R - 5 0 2 3 5 6 Judge: L G R N T O L I N I Deputy D.A.: I'EOPLE \IS.

Bate:

KEFINE,
Agency # Charges:

ROBERT CFIRL P R T R I C K
DDL:

SUPERIOIZ C:0URrr OIi CALIl~ORI\lIA COUI'IITJ' 0 : SONOlr?A 1 1 /09/87 S / 22 / 0 T i m e : 0 1 3 0 C 0 ~ 1 r t r o o H ~ 1 3 1 1 st App: Tarpet: Repor~er: U F)LER I E El P R P Sworn I ~ i ~ e r p ~ . e t c r : -I'INTl . Cle~.h: T E N R HUDSON [I 1.21 Interpreter. needecl nest date InE #
CR N 4 1 9 7 8 9 4

DER-878813

DOB:

12/13/57

1231 Stipulales to arrnignmeol 1241 Aclvised of constitu~ic~nal rights M'aives 125:l re:iclilig 1261 fi11.1heradvisement of rights Con~plaint filed 1271 Defend:unt disclliirgecl 1281 Continued for complaint ~iol 1291 I\llutual tliscovery granted b y . [30] Jutlge recuses self per 170.I CCP 1311 170.6 CCI' filed re: Juclge by [A) DA [HI Ilefense P.O. 1321 present [A:] gives oral report 1331 City Attorney present 1341 C~irninalProtective Orde~.FA] issued & filed IU] vacated IC] served n l a . @ . ~ U O I B ~ " &, 1; !Y?AR:WWT-[XS],:MCALEED remains out . . . . . . . . . . ., . . . . . [I81 j ~j . [A] as set [20] NO BAIL R M[1 . . . . . ~ .L E ~ S E D : ~ R. O M 1 ; ; C U S T O Dly Bail set $ E* 2 . . . . . . Bail C21] increased to $ ]:BAE 131 forfeitetl [4] reinsta~etl[S] exonerated [7] ~'einstatedand exon I' . . . [22] reduced to $ Mtn. for [24] OR [25] Sup. OR [A] granted [B] denied [C] conditions attached Bail $ [8] Bench warrant to issue per [26] OR 1271 Sup. OR [A] reinslated [B] revoked [C] terminated [I)] continued Do not [9] cite outlrelease on OR [lo] recalendar [Ill Bail may be forfeited in lieu of appearance [12] EXECUTION STAYED 1281 Snmmar)l .iudgnlenl extellded 10 [29] Reassumption of liability filed Declaration 6: warrant to be ure~aredbv r131 DA 1141 Citv Attornev [13] assigned [34] appointed [A] reg fee 1151 relieved Amended complaint filed [1w Complaint filed [17] (181 Defense provided with [A] complain^ [B:l Reporl ICJ Cite 1191 Complaint amendecl to [20] Charge(s) amended to

Kz,[ll

. . . . . . . .

[I] to counsel [2J of time for trial 11 to conflonticross exam \viuiesses 3 [4] against self-incrimination [5] to jury/cous~trial [GI to VOP hearing [7] possible assessment of P.D. 181 alien advisement per 1016.5PC fees [9] Faretta adviselnent given re: counsel & waivecl

[12] does not ~ l a i v e time [13] withdraws time waiver [I41 waives VOP hearilig [Is] waives jury trial [16] People waive jury trial DNA test [DN41] ordered [DNA21 previously done
Qu;llif sing offense

[I) Guilty [A] NGI [2] Not goilry plea w/dra\rjn 'Enters [28] Asbuckle 1291 Harvey waives Not rs denied [S] Enhancements/allegatio~lsdenied [ 3 0 ] ~ e f e r r e d [31] Accepcecl in [A] 1210 PC Court [B] Drug Court to Advisecl of [6] max. peualties [7] future consequences [8] understancls 6r. [C] DV Court [Dl FACT Court waives each sight [9] Defense Csl. joins in waiver [lo] TAHL waiver filecl iCRIMINkL:PROCEEDINGS [32] suspended [33] reinstated Reier to [34] Piojeci ~ntercept[35] Educa~ionalSentencing - contacl w/in 48 hrs [:IT] GUILTY 1121 NO CONTEST priors [14] enhancement [15] enhancemenl stricken [36] P.I. 1371 ESJ' 1381 NBRC on ct(s) -[L] accepted [B] clenied [C] vacated ~dmib [13] Terminate 1.391 successfully [40] uns~~ccessfully P.I. [R] NBRC [!A] [ l ~Violation of Probation [A] denied [B ] admitted [C] droppecl ] found constitutionally [A] valid [B] invalid 1411 GUILTY plea for deferred elltry of judg~nenton ct(s) [17] Priors Deferred elltry complelecl 141A] successf~~lly141121 uns~~ccessfi~lly [18]j~ti~u'iates,..to factual basis for plea [B] probable cause for arrest [A] 1421 Dr. appointed to examine defenclaut [C] commissioner [19] Reporlln~emofiled (A] Bail [U] PI ., apj)ointecl per C.OURTF1NDS 1201 factual basis for plea 1211 ad~iiissiori[22] Def. knowingly 1431 Report due intelligently, fi.eely, voluntarily waives rights [23] Def guilty 1241 i n Viol. Prob. 'DEEFENDANT [44] fo~~ncl mentally [A] competent [B] incompetent [25] People's motion to dismiss remaining counls at ti~neof sentencing yrnriled 14.51 conimitted to Norto11 Center [A] contested [:I%]uncontested (461 If sen~encedlo Jail, tcrm \voulcl be yrshnos. Credits DEPENDANT waives time for [26] sentencing 1271 referral to Probation [F] Otl~ci. [7] Conl. to (I] Referred tu Prob. Uept. for RPO [2] re-referr~~l 011 Usil Recluctio~iIU] Presenlence [C] VOP ID] NBRC [El Pus[ Se~itencr IAl j[3];:PROBATION.SU.MRURILY REVOKED 141 Prob. lip[ filed [5] See P.O. today 161 Test today Ctr~n 181 Refer to (A] Mental He:~lth [B] Mental Health Review Team [9]Repor1 clue . C t r n i [A] C t r m [A] C t r r n [A] C t r 1 1 1 - (A] Ctsm -[A]

[I] Sett. Co~ii',sel [2] Readiness Conf. set
!3] Jury trial set

1101 Proceeding suspended 6 c m e Certified to Juvenile Courl : MOTION [IT.] 1538.5 TIC L12] 1050 PC 1131 Other
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