The People v. Uribe

WEINGART, J.

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County, No. BA490398, BA490395, BA490396 Michael E. Pastor, Judge. Reversed.

George Gascon, District Attorney, Cassandra Thorp and Elizabeth Marks, Deputy District Attorneys, for Plaintiff and Appellant.

Werksman Jackson &Quinn and Caleb E. Mason for Defendants and Respondents.

WEINGART, J.

The People charged three Los Angeles police officers- respondents Rene Braga, Julio Garcia, and Raul Uribe-with one count each of preparing false documentary evidence (Pen. Code, § 134). In addition, the People charged Braga and Uribe with one count each of filing a false report (§ 118.1). The charges pertain to field identification cards (FI cards) that the respondent officers filled out after stopping certain suspects on the suspicion of committing minor offenses. The People alleged that the officers falsely wrote on the FI cards that the suspects admitted to being gang members. After a preliminary hearing, the trial court dismissed the charges, finding that the People had failed to produce sufficient evidence of the officers' guilt. The court also granted the officers' petition under section 851.8 for a declaration of factual innocence.

Unless otherwise specified, subsequent statutory references are to the Penal Code.

The People have appealed the latter order, arguing that even if there was insufficient evidence to hold the officers to answer, the record did not exonerate them, as is required for a finding of actual innocence. (See People v. Adair (2003) 29 Cal.4th 895, 909 (Adair).) We agree and reverse.

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

This case arose from an audit ordered by the Los Angeles chief of police to review the circumstances in which Los Angeles Police Department (LAPD or the department) officers flagged members of the public as possible gang members. A team of internal affairs officers reviewed footage recorded by cameras the officers wore to determine whether the body-cam footage appeared to match the officers' written descriptions of events, including on FI cards.

In the course of this investigation, the three respondents in this case came to be suspected of filing false reports. Braga, Garcia, and Uribe did not work together, but all were assigned to the department's Metropolitan, or Metro, Division, a specialized unit that operated throughout the city focusing on crime suppression. In many instances, officers in the division were assigned to areas with high rates of gang-related crime. The three incidents at issue in this case are broadly similar. In each case, Metro officers detained one or more subjects on suspicion of a minor offense, questioned them, and then released them without arresting or ticketing them. After each incident, one of the respondents filled out an FI card indicating that one of the suspects admitted to being a member of a street gang. In each instance, body-cam footage of the incident showed that the suspects did not orally state that they were gang members.

Because all three cases presented similar issues, they were consolidated for purposes of the preliminary hearing. The same attorney jointly represented all three officers at the preliminary hearing and in this appeal.

We begin by describing the LAPD policies surrounding the use of FI cards in gang cases before describing each of the incidents in detail.

A. LAPD Policies and Practices with Gang FI Cards LAPD officers routinely use FI cards to identify members of the public with whom they come in contact and document their interactions with them, including in situations where no gang activity is suspected. The cards include spaces for basic biographical information, such as the subject's name, address, and physical features. At the time of the events of this case, in 2018, they also had spaces for officers to list a person's gang affiliation and moniker or alias. On the back side of the card, there is a space where the officer can describe the nature of the encounter and write additional notes.

According to the Metro Division officers who testified at the preliminary hearing, at the scene of the encounter with the subject, officers generally filled in the portions of FI cards corresponding to the subject's name, address, and basic biographical information. They finished filling in the cards later, often at the station house at the end of the shift, when they had access to police databases, the internet, and the expertise of other officers.

When they were finished, officers turned over their FI cards to a watch commander for review. The watch commander in turn gave any cards containing gang information to a gang detail for review to determine whether they met the criteria for inclusion in Calgang, a database used by law enforcement agencies in California and other states to track gang members.

In June 2020, the LAPD stopped participating in Calgang, and the FI cards were redesigned so that they no longer included designated spaces for officers to write a suspect's gang and moniker. Except when otherwise specified, this opinion refers to LAPD policies in effect in 2018.

A subject was eligible for inclusion in Calgang only if he met at least two of the following eight criteria, according to the department's official policies: "Subject has admitted to being a gang member; Subject has been arrested for offenses consistent with gang activity; Subject has been identified as a gang member by a reliable informant/source; Subject has been seen associating with documented gang members; Subject has been seen displaying gang symbols and/or hand signs; Subject has been seen frequenting gang areas; Subject has been seen wearing gang dress: or, Subject is known to have gang tattoos." (Italics and formatting removed.) The LAPD manual in effect in 2018 did not include any further explanation of the meaning of these criteria. In particular, there was no formal, written definition of "admitted to being a gang member."

After a suspect was entered in the Calgang database, the LAPD sent him a notification letter, as required under section 186.34, subdivision (c). If the suspect believed the department's determination was in error, he could send the LAPD a request for removal from the database, which the department was required to review and respond to within 30 days. (See § 186.34, subd. (e).)

All three respondents had received instruction on the Calgang database as part of their training. This training included both formal and informal components, and the officers who testified in this case gave different accounts of the content of the training. During the course of the department's internal investigation into the events of this case, Sergeant Enrique Vaca, who was Garcia's partner, stated that "during [Calgang] school they break down what each criteri[on] means in the legal sense and practical sense. And also the training I received from senior gang officers, we also did a breakdown of exactly what the self-admit criteri[on] [was] composed of." In his subsequent testimony at the preliminary hearing, Vaca suggested that his statements to investigators referred to training he took part in after the department revised its policies with respect to FI cards in 2020. Other officers indicated that they learned how to fill out FI cards largely informally, by following the practices of more senior officers.

After the department's internal investigators advised him of his Miranda rights, Vaca declined to give a voluntary statement as part of the investigation. He agreed to answer the investigators' questions only after they informed him that his "silence could be deemed as insubordination and lead to administrative discipline," including "discharge or removal from office," and that his statement could not be used against him in any future criminal proceedings.

The department kept the original FI cards even after subjects were entered into Calgang, and officers relied on them both as a memory aid in their own cases and when investigating subjects who had previously been interviewed by others. Two officers who worked as gang officers in the department in 2018 testified that they frequently relied on FI cards as a basis of their opinions as to whether or not a criminal defendant was a gang member. One of these officers testified that he gave copies of FI cards to the prosecution in advance of his testimony, and Braga himself testified that he understood the audience for the FI cards he filled out could include prosecutors and judges, in addition to his fellow officers.

The department's training materials directed officers to be thorough when filling out FI cards and to include their "hunch" about a suspect. On one sample card where an officer wrote that a suspect denied being a gang member, the training material stated that this was a "good clue to dig more." The officers who testified at the preliminary hearing uniformly agreed that different officers filled out FI cards differently. Official LAPD materials acknowledged this reality. The department created a guide for officers to prepare to testify as experts in gang cases. It included the following sample cross-examination questions: "You are aware that officers often times have differing ways of filling [out] field interview cards, correct?" "You are aware that some officers will only put down that someone was a gang member if the person actually uttered those words to them personally?" "However, other officers will 'mark the box' so to speak if they are 'known to have admitted some time in the past,' right?" According to Officer Bradley Nielson, who was working as Braga's partner on the day he filled out the FI card at issue in this case, many officers relied on information they found in the Calgang database when filling out FI cards. As a result, multiple FI cards might repeat the same incorrect information on a suspect, requiring Nielson to contact the officers individually to find out what actually happened. FI cards might also tell an incomplete or misleading story simply because they provided a limited space to describe the details of an event.

Officers testified that they were judged in part on their productivity in producing FI cards. According to Nielson, within the Metro Division, "There was a large amount of pressure put on individual officers to have contacts with gang members and [gun] arrests." Supervisors within the division measured officers' productivity in part by counting the FI cards they produced in the course of a shift. The supervisors cared particularly about the number of FI cards relating to gang members and gave benefits to officers based on these numbers. Nielson felt he was a victim of this system and believed his supervisors had retaliated against him for failing to produce enough gang FI cards.

In September 2021, after the internal investigation that led to this case concluded, the LAPD issued a new policy regarding the use of FI cards. The new policy stated that when filling out FI cards, "Officers may denote specific and articulable facts related to gang activity[;] however, officers shall not document opinions, including an opinion that the person is a member or affiliate of a gang, unless they indicate the specific and articulable facts upon which they base that conclusion."

B. Braga

On July 28, 2018, Braga and his partner, Nielson, stopped a car at a convenience store in Watts because the car did not have license plates. Lewis M., who had been riding in the front passenger seat, stepped out of the car. Braga asked him if he was on parole or probation or if he had any weapons in the car, and Lewis said no. Braga looked into the back seat of the car and saw another man, Anthony F., sitting there. Braga asked Lewis if he was working at the convenience store, and Lewis responded that he was working at Saturday Night Lights, a city program to provide activities for teens in city parks on Saturday nights. Braga did not ask, nor did Lewis speak with Braga, about whether Lewis was a gang member.

We use first names and last initials pursuant to the guidance of California Rules of Court, rule 8.90(b).

The driver of the car, Shawn M., stepped out of the car and gave Nielson his driver's license and registration. The back seat passenger, Anthony, also exited the car, and Nielson asked him about a blue bandana he had in his possession. Anthony told Nielson that the bandana was not gang paraphernalia. Instead, Anthony was wearing it to cover staples on the back of his head from where he fell at work. Anthony turned his back to the officer and pointed to the back of his head, but no staples or scars were visible in the bodycam video. Nielson went back to the police car to look up the juveniles in the database. In the meantime, Braga asked the car's driver why he had not put license plates on the car, and the driver responded that he had purchased the car recently and had not yet received the plates. Braga then asked Lewis and Anthony for their names and dates of birth and began filling out FI cards for them. At this point, Braga and Nielson received a radio summons to another location, and they drove away. Nielson testified at the preliminary hearing that he did not hear Anthony admit that he was a gang member during the stop.

Lewis testified at the preliminary hearing that he had never seen Anthony with staples in his head.

Braga later submitted an FI card for Anthony on which he wrote that Anthony met three of the criteria for gang membership: he admitted to being a gang member, he was traveling with another gang member (identified on the card as Lewis), and he was in a location frequented by gangs. Braga wrote that Anthony was a member of the "PJ Crip," or Project Watts Crips, gang. Sergeant Season Nunez, who led the internal investigation into Braga, testified that she was unable to find an FI card for Lewis. Nevertheless, both Lewis and Anthony received letters stating that they had been listed in the Calgang database as gang members following their encounter with Braga and Nielson.

The People did not charge Braga for his actions with respect to Lewis.

Braga testified in his own defense at the preliminary hearing. He stated that he knew the convenience store where the stop took place "is a stronghold for the P.J. Watts Crips," because of its location next to the Imperial Courts projects, which served as the gang's primary turf. He became suspicious of Anthony's involvement in the gang because of the blue bandana. To wear a bandana in such a location is "an outward, ultimate admission of gang membership." Braga also viewed Anthony's comments about using the bandana to cover staples in his head as a joke. "When [Nielson] made a joke about how chicks dig scars and everyone laughed, I mean, that was a universal communication to me that he was not being direct and truthful about what the blue bandanna represented to him."

Braga noted that he and Nielson were called away to another location immediately after the stop ended. As a result, he did not have time to finish Anthony's FI card until later. Braga acknowledged that he did not remember the stop, which took place more than three years before he testified at the preliminary hearing. Nevertheless, he knew the practices he follows when filling out FI cards, and on that basis knew how he investigated Anthony and Lewis after the stop. According to Braga, when completing an FI card for a potential gang member, he checks department databases and social media accounts, and consults with other officers who are nearby.

Braga's attorney showed Braga photos taken from Lewis's Twitter account depicting Lewis making signals with his hands.Braga testified that the hand signals were gang signs and believed he must have seen the photos as part of his investigation. Braga's attorney also showed him a screenshot from an Instagram account named gengi776. Beneath the picture appears a comment from a user named dodge.city.crip. The comment states, "My ugly tiny Loc big homie west hannin AntMalone." Braga testified that the photo depicted Anthony, and the commenter "referr[ed] to Anthony F[.] as a Loc, which is vernacular for being a Crip." Braga interpreted the name AntMalone as "the moniker of Anthony." According to Braga, "Ant is an abbreviation or a nickname for Anthony," and gang members commonly use the name "Malone."

In his testimony, Lewis acknowledged the picture depicted him, but claimed he was not making gang signs.

Braga concluded that by putting "those facts combined with the facts that I observed during the traffic stop," he reached the conclusion "that Anthony F[.] was an outward, open, admitted, self-admitted gang member with P.J. Watts Crips." Braga believed that in applying the term "admitted" or "self-admitted" in this manner, he was acting consistently with his training. He denied that he intended to make any false statements on Anthony's FI card or to produce the card for a fraudulent purpose.

C. Garcia

On the evening of March 21, 2018, Garcia and his partner, Sergeant Matthew Stickney, stopped two people, Inocencio A. and Kristin A. (no relation), on suspicion of jaywalking near the corner of Denni Street and Avalon Boulevard in Wilmington in the Harbor area of Los Angeles.

According to one of the officers who testified at the preliminary hearing, Avalon Boulevard marks the border between the two rival gangs with which Inocencio was alleged to be associated. The Westside Wilmas claimed the territory to the west of the boulevard, and the Eastside Wilmas claimed the territory to the east.

Garcia asked Inocencio to put his hands behind his back and patted him down, then asked Inocencio if he lived nearby and where he was headed. Inocencio said he was heading home but did not have his ID with him, and in fact had never had a California ID. He told Garcia his name, date of birth, and address. Inocencio also told Garcia that he was on probation for trespassing but did not need to check in with a probation officer. Garcia's partner, Vaca, took Inocencio's information back to his police car to check for warrants. While they were waiting for Vaca to return, Inocencio recommended that the officers eat at Charlie's, a sandwich shop located nearby.

As Garcia was questioning Inocencio, Stickney questioned Kristin. Stickney asked if Kristin had any weapons in her possession. She said no, and he briefly looked through her purse. Kristin denied having any ID or phone but gave Stickney her name and address. She said she had been arrested once in school for fighting at a football game but was not on probation. She said she had no tattoos and was unemployed. Stickney told Kristin that he did not usually work in this part of the city. Kristin asked why the officers were in the area, and Stickney responded that it was due to a beef involving the Wilmas gang.

Vaca returned from the police car and reported that there were no outstanding warrants for Inocencio, and that Kristin's name did not appear in the database. Garcia asked Inocencio for his phone number and whether he had a job or any tattoos. Inocencio said he did not have any tattoos but rolled up his sleeve to show the officers a mole on his upper right arm. The officers then let Inocencio and Kristin go.

Garcia submitted an FI card for Inocencio. In the box labeled gang/club, he wrote "E/S Wilmas," short for Eastside Wilmas. He also wrote "S/A 38894." The notation S/A was short for self-admit, and 38894 was Garcia's serial number. In the box labeled "moniker/alias," Garcia wrote "Gordo." Stickney also prepared an FI card for Kristin in which he wrote that Kristin did not claim to be a gang member.

The department's internal investigation showed that Inocencio had not previously been included in the Calgang database, and there is no indication in the record that he was added to Calgang following his encounter with Garcia. There were previous FI cards for Inocencio, one of which stated that he was a member of the Westside Wilmas, not the Eastside Wilmas as Garcia wrote. Another officer, Detective Robert Hargrove, testified that he had stopped Inocencio several times and arrested him more than once. Hargrove believed Inocencio was an associate of the Westside Wilmas gang, and in November 2017 filled out an FI card stating as much. Hargrove also wrote that Inocencio's moniker was Chencho, and a previous FI Card dated April 2016 listed the same nickname.

Garcia testified in his own defense. He did not have an independent recollection of the encounter with Inocencio, but he knew the practices he ordinarily followed when completing an FI card for a suspected gang member, and he must have followed them in this case. During the encounter with Inocencio, Garcia became suspicious that Inocencio was a gang member based on his baggy clothing, shaved head, and his presence near the border between the Westside and Eastside Wilmas. In addition, Garcia suspected that Inocencio, who claimed he was on probation for trespassing, was minimizing the nature of the offense in a manner common to gang members. Garcia admitted that these suspicions alone would not have been enough for him to write on the FI Card that Inocencio was a gang member. For this reason, Garcia was certain that he must have conducted additional research on Inocencio. When he did so, he discovered the multiple prior notations in the database pertaining to Inocencio, and that confirmed his prior suspicions. Garcia believed he had acted consistently with his prior training when he wrote that Inocencio admitted his gang membership, and had not acted with the intent to make a false statement. Garcia noted that Chencho, the moniker reported by Hargrove, means fat in Spanish, as does Gordo, the word he wrote on the FI card as Inocencio's moniker. Garcia thought it possible that he had simply confused the two synonymous words when filling out the FI card.

D. Uribe

On June 28, 2018, Uribe and his partner, Officer Nicholas Martinez, stopped a car near the corner of Keniston Avenue and Slauson Avenue in the View Park-Windsor Hills area of Los Angeles County. The officers asked the driver, Devon T., to step out of his car, face a wall, and put his hands behind his back. Uribe approached and told Devon that he was driving with illegally tinted windows. Uribe handcuffed Devon, patted him down, and asked him for his ID. Devon told Uribe that he was on both parole and probation for offenses he committed several years earlier. Uribe noticed that Devon was wearing a Rolex watch, but Devon said it was a fake.

Martinez began searching Devon's car, and Uribe began copying biographical information from Devon's driver's license to an FI card. Uribe asked Devon if he was in the gang files. Devon said he was not, but Uribe gestured at Devon's tattoos and asked him, "Where [are] you from?" Devon said he had gone to school and graduated out of state, and Uribe answered, "You've got neighborhoods tying you to the local gangs here. Just be honest with me, man. What neighborhood were you from? I ain't saying you're banging now, currently, but who'd you used to hang out with?" Devon replied, "I mean, I grew up right here, but I'm not from here, never been in no gang files."

Uribe continued pressing Devon, noting that Devon had tattoos that "clearly [let] me know . . . you have some kind of ties to the neighborhood." Devon answered that he used to hang out around West Boulevard and Hyde Park, but "I'm not from no gang." Uribe asked what they used to call Devon. Devon answered that they call him by his last name. Martinez searched Devon's car while Uribe spoke with Devon about his parole officer. Uribe returned to the police car and searched for Devon in the police database. When the search revealed no warrants, Uribe released Devon from his handcuffs and let him go.

On an FI card, Uribe wrote that Devon's moniker or alias was Devon's last name T., and that he was a member of the Rollin 60's gang. Next to both of these entries, Uribe wrote, "S/A to Uribe." Devon's name was entered in the Calgang database for the first time following the stop.

Uribe testified in his own defense. He noted that the stop took place about five blocks west of a clothing store that was a stronghold of the Rollin 60's Neighborhood Crips. Uribe believed he had seen Devon earlier that day near the store. The location of the traffic stop, together with Devon's tattoos and Rolex watch, both of which were associated with the Rollin' 60's Crips, and the fact that he was on both parole and probation, made Uribe suspicious of Devon's potential connection with the gang. According to Uribe, the watch and tattoos together communicated with those in the neighborhood that Devon was a gang member. Uribe also recognized that West Boulevard and Hyde Park, the areas where Devon claimed he used to hang out, were strongholds for the Rollin 60's.

Uribe acknowledged that he had only a partial recollection of the events surrounding his encounter with Devon, which he supplemented by watching the video recording and taking into account his standard practices. Before finishing a gang FI card, Uribe would normally do additional research on the surrounding circumstances. After he was accused of wrongdoing in this case, he re-created what that research would have entailed. He searched the police database for records involving the car Devon was driving and discovered that it had been stopped several times with Devon in the car accompanied by other documented gang members. The car was driven so frequently by gang members that Uribe regarded it as a "hood car," shared among members of a gang to help them commit crimes and for general transportation.

Uribe testified that he remembered seeing Devon in the parking lot of the clothing store earlier that day as part of a vigil for the rapper Nipsey Hussle, who owned the store and who had been murdered in its parking lot. Uribe saw Devon in the crowd as he was driving past the store and recognized him because of the distinctive tattoo on his triceps.

In light of this information, and in view of his own understanding of the meaning of "admitted" and "self-admit," Uribe concluded that he was correct to write "S/A" on Devon's FI card. It did not mean that Devon had verbally admitted to being a gang member, but rather that Uribe himself had concluded that he was one. Uribe did not believe he had written anything false, nor with the intent to deceive.

E. Trial Court Proceedings

The trial court held a lengthy preliminary hearing, with 17 nonconsecutive days of proceedings filling more than 2,000 pages of the reporter's transcript.

At the conclusion of the hearing, the court granted the respondents' motion under section 871 to dismiss all the charges for insufficient evidence. The court noted that the police witnesses for both the prosecution and defense had testified to "a great number of varying interpretations" of the key terms in the case, namely "admitted," "self-admitted," and "s/a." With no clear definition of those terms, and nothing authoritative to contradict the respondents' interpretations, the court found that "the overwhelming evidence supports this court's conclusion that the officers did not have the specific intent to make false statements and did not make false statements and did not have a fraudulent or deceitful purpose."

The court found that Braga, Garcia, and Uribe "were encouraged by training officers and colleagues and supervisors to utilize their experience and their knowledge from training and their expertise and their access to social media and research to go beyond the limited nature of express verbal statements. And as far as this court is concerned, that's what all three officers did in this particular case." The court continued, suggesting that the blame for the situation belonged at more senior levels: "there's a notion of trickle-down responsibility in this case; namely, that the rank and file of Metro officers are being prosecuted based upon interpretations in later years that were, in fact, made and encouraged by higher-ranking individuals at L.A.P.D., and, as such, they are not culpable in terms of any count in this case."

Following the trial court's ruling, the respondents filed a petition for a finding of factual innocence under section 851.8. After both sides had an opportunity to argue for their positions and submit additional evidence in support, the court held a hearing on May 6, 2022. The court stated that it had considered all materials submitted by both sides, then found "that the defense has met its burden of demonstrating probable cause for factual innocence." The court stated that its "ruling is based upon the overall state of the evidence," but did not make any new factual findings.

The People filed timely appeals of the trial court's order finding Braga, Garcia, and Uribe factually innocent. (See § 851.8, subd. (p)(1).)

DISCUSSION

The People contend that we must reverse the trial court's finding of factual innocence because the respondents failed to show "that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (§ 851.8, subd. (b).) They argue that the evidence showed a general agreement among officers within the department as to the meaning of "admit" and "self-admit" that was inconsistent with the way the respondents claimed to understand those terms, and the evidence would lead a reasonable person to conscientiously entertain a strong suspicion that the respondents deliberately made false statements on their FI cards when they claimed the subjects admitted being gang members.

The respondents disagree. They argue that the People failed to introduce any evidence at all that any of them acted with the specific intent to make false statements. We find the People's argument more persuasive, as we explain below.

A. Background on Findings of Factual Innocence and Standard of Review

In any case where the People have filed an accusatory pleading against a defendant, but the action has been dismissed, "the defendant may . . . 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).) To obtain relief, the defendant must "show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (Id., subd. (b).) If the defendant succeeds in making this case, "the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the [defendant] committed the offense for which the arrest was made." (Ibid.) The court may not grant relief unless it ultimately "finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (Ibid.)

At first glance, the standard for determining factual innocence appears closely related to that for dismissing a complaint. The magistrate must dismiss a complaint if "it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense." (§ 871.)" 'The term "sufficient cause" [as used in section 871 . . .] is generally equivalent to "reasonable and probable cause," that is, such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.'" (People v. Esmaili (2013) 213 Cal.App.4th 1449, 1459-1460 (Esmaili).)

Despite this apparent similarity, "it does not follow that an order discharging a defendant for lack of probable cause means factual innocence has been demonstrated." (Esmaili, supra, 213 Cal.App.4th at p. 1460.) The difference between the two standards is partly a matter of the burden of proof. "At the preliminary hearing, the burden is on the prosecution to show there is probable cause to believe the defendant committed the charged offense. [Citation.] When bringing a petition under section 851.8, the defendant has the initial burden of showing the converse-that there is no reasonable cause to believe he committed the offense." (Ibid.) In addition, a magistrate takes a more active role in assessing the facts at a preliminary hearing. At this stage, "the magistrate may 'weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.' [Citation]." (Ibid.) Section 851.8, by contrast, "impose[s] an objective legal standard . . ., and do[es] not accommodate any exercise of discretion." (Adair, supra, 29 Cal.4th at p. 908.) The evidence on the record may be insufficient to require a defendant to stand trial for an offense while nevertheless "leav[ing] a person of ordinary care and prudence believing there is an honest and strong suspicion [the defendant] was guilty." (People v. Bleich (2009) 178 Cal.App.4th 292, 300 (Bleich).) In such a scenario, the defendant is not entitled to a finding of factual innocence. (Ibid.)

Our standard of review reflects the objective nature of the inquiry regarding claims of factual innocence, and its difference from a magistrate's decision following a preliminary hearing. When reviewing a magistrate's decision following a preliminary hearing," 'A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate ....' [Citation.]" (People v. Williams (1988) 44 Cal.3d 883, 925.) In contrast, when the trial court grants or denies a petition under section 851.8, "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." (Adair, supra, 29 Cal.4th at p. 905.) Although we must defer to the trial court on purely factual issues and matters of witness credibility, we must reach our own independent conclusions as to the implications of those determinations. (Id. at pp. 906-907.)

Respondents argue that we should review the trial court's finding that they did not act with the specific intent to deceive for substantial evidence. We disagree. In Adair, the Supreme Court indeed stated that when reviewing a finding of factual innocence, "the appellate court should defer to the trial court's factual findings to the extent they are supported by substantial evidence" (Adair, supra, 29 Cal.4th at p. 897), but the court clarified that this standard applies only to pure questions of fact and determinations of credibility: "For example, in a rape prosecution the victim may testify she did not consent to an act of sexual intercourse, and the defendant may counter that she did. Following acquittal, the trial judge may determine not simply that the defendant succeeded in raising a reasonable doubt as to the victim's veracity but that, in fact, she was lying, and on that basis make a finding of factual innocence that would be binding on review if supported by substantial evidence." (Id. at p. 906.) The question of whether the respondents here acted with the specific intent to deceive is not, however, a question of pure fact, "even [if] the underlying inquiry is fact intensive." (Id. at p. 907.) With respect to such questions, we do not defer to the trial court's conclusions, but rather must "independently review[ ] the record to determine 'that facts exist which 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.]' [Citation.]" (Ibid.)

Thus, a defendant seeking relief under section 851.8 faces a difficult path. In Esmaili, the defendant objected to the trial court's description of the burden to establish innocence under section 851.8 as" 'incredibly high.'" (Esmaili, supra, 213 Cal.App.4th at p. 1459.) The Court of Appeal rejected the argument "because the [trial] court's characterization of the standard was apt." (Ibid.) As our Supreme Court explained in Adair, to be entitled to relief under section 851.8, "Defendants must 'show that the state should never have subjected them to the compulsion of the criminal law-because no objective factors justified official action ...." [Citation.] In sum, the record must exonerate, not merely raise a substantial question as to guilt. [Citation.]" (Adair, supra, 29 Cal.4th at p. 909.)

Defendants have succeeded in overcoming this very high barrier when they have been able to demonstrate a decisive defect in the prosecution's case. For example, in People v. Laiwala (2006) 143 Cal.App.4th 1065, a defendant convicted of grand theft of a trade secret showed he was entitled to a finding of factual innocence because there was no evidence that the item the defendant was accused of stealing was actually a trade secret. (Id. at p. 1072.) Similarly, in People v. McCann (2006) 141 Cal.App.4th 347, where the record showed the defendant "had a valid license to practice medicine at all relevant times" (id. at p. 351), he was factually innocent of practicing medicine without a license. (Id. at p. 358.)

On the other hand, defendants have generally not been successful when their claims of innocence depend on the interpretation of the evidence. For example, in Bleich, the trial court dismissed charges of terrorist threats (§ 422) and stalking (§ 646.9) against a defendant because the voice in a recorded threatening phone call did not sound like the defendant's voice. (Bleich, supra, 178 Cal.App.4th at p. 298.) The court denied the defendant's petition for a finding of factual innocence, however, and the Court of Appeal affirmed, noting that the quality of the recording was poor, and that witnesses who heard a better version of the recording believed it was the defendant's voice. (Id. at pp. 302-303.)

Similarly, in People v. Medlin (2009) 178 Cal.App.4th 1092, a jury acquitted the defendants of dependent adult abuse (§ 368, subd. (b)(1)), and the trial court granted the defendants' petition for a finding of factual innocence, but the Court of Appeal reversed. (Medlin, supra, at p. 1094.) One of the defendants, Monterroso, who worked as a nurse at a long-term care facility, was accused of inserting the wrong sized feeding tube in a paraplegic patient and inserting the tube incorrectly, causing the patient's death. The other defendant, Medlin, who was the director of nursing at the facility, was accused of failing to train the first defendant properly, and of failing to recognize the patient's deteriorating condition in time to save his life. (Id. at pp. 1098-1099.) The prosecution's case suffered when its expert witness acknowledged during cross-examination that he had been mistaken about the size of the feeding tube-Monterroso had inserted the same size tube that the victim had always used. (Id. at p. 1103.) Nevertheless, the court held that the defendants were not entitled to a finding of factual innocence because the expert's error "did not negate all legal cause to suspect criminal negligence." (Id. at p. 1104.) There remained significant evidence of misconduct by both defendants, such that "we cannot conclude that' "no objective factors justified official action ...." '" (Ibid., quoting Adair, supra, 29 Cal.4th at p. 909.)

B. Elements of the Offenses

We agree with respondents that, in determining whether they are entitled to a finding of factual innocence, lack of evidence as to a single element of an offense may be dispositive. (People v. Laiwala, supra, 143 Cal.App.4th at p. 1072 [where the prosecution failed to produce evidence that the information the defendant took was a trade secret, the defendant was entitled to a finding of factual innocence on the charge of theft of trade secrets without the need to consider the evidence as to the other elements of the offense].)

We will therefore consider the elements of section 134, the charge brought against all three respondents, separately. The statute provides that, "Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony." (Ibid.) The court in People v. Lucero (2019) 41 Cal.App.5th 370 described the elements of the offense as follows:" '(1) the defendant prepared a false or antedated book, paper, record, instrument in writing, or other matter or thing, (2) with the intent to produce it, or allow it to be produced as genuine or true, upon any trial, proceeding, or inquiry authorized by law, (3) for any fraudulent or deceitful purpose.' [Citation.]" (Id. at p. 405.)

Braga and Uribe were also charged with violating section 118.1. The version of section 118.1 under which Braga and Uribe were charged mirrored section 134 in that it barred peace officers from "knowingly and intentionally mak[ing a] statement regarding any material matter in [a] report which the officer knows to be false." (Former § 118.1, as amended by Stats. 1992, ch. 427, § 134; the statute has subsequently been amended by Stats. 2021, ch. 267, § 2.) Braga and Uribe do not deny the materiality of the allegedly false statements at issue here. Our analysis of section 134 thus covers the same disputed elements at issue with regard to section 118.1.

The respondents contend that they are factually innocent because of a failure of proof as to two of these elements. They argue that they did not make false statements, and that they did not act with specific intent to defraud or for deceitful purpose.We consider each of these assertions in turn.

Before the trial court, the respondents alleged the People's case failed for a third reason, that the FI cards were not intended to be produced in "any trial, proceeding, or inquiry." (§ 134.) The trial court rejected that argument, anticipation of a potential challenge under section 186.34, subdivision (c) by the subject to his inclusion in the Calgang database, and that proceedings in response to such a challenge constituted a trial, proceeding, or inquiry for purposes of section 134. We perceive no error in the trial court's reasoning on this point, and the respondents offer no reasoned argument against it.

1. False Statements

According to the People, this is a simple matter. In their view, the department did not provide an express definition of the terms "admit" and "self-admit" because "they are self-explanatory-there is simply no need to interpret or define words with a clear, plain meaning." The bodycam footage shows unequivocally that none of the subjects told any of the three respondent officers that he was a gang member. Indeed, Devon and Anthony both denied that they were gang members, and Garcia did not broach the subject of gang membership when speaking with Inocencio. Ergo, in the People's view, when the respondents wrote on the FI cards that these individuals admitted being gang members, the respondents made false statements.

We do not find this rigid, wooden interpretation of "admit" and/or "self-admit" persuasive. When questioned on the subject during cross-examination, virtually all of the many officers who testified at the preliminary hearing stated that they believed a subject could admit gang membership nonverbally, for example by pointing to a tattoo or to gang graffiti. The People argue that this reflects a reluctance by the officers to incriminate their colleagues, but we view it as an ordinary and reasonable interpretation of the word admit. If you ask someone if he just came back from the beach, and the person is wearing a swimsuit and points to sand clinging to his wet and sunburned feet, it would be natural to interpret the gesture as a form of admission even if no oral statement is made.

Such a natural extension of the meaning of "admit" can make it hard to determine how far the definition can stretch. Robert Martinez, the officer who entered the information from Anthony's FI card into the Calgang database, summarized the difficulty when asked a hypothetical about a man with a very obvious gang tattoo: "Would I say that a guy with 'Florencia' tattooed on his forehead is admitting to be a Florence gang member? Yeah, but I would probably more describe it like, I can identify him as a Florencia gang member. But he's advertising it, so he is admitting it if he has a giant tattoo on his head and he's not covering it. So would I describe it as admission? Probably not, but if you want to peel back the onion, could you say that by not hiding your tattoo, you're letting the world know and admitting that you're a Florence gang member? Yes."

Again, we do not interpret Martinez's difficulty as a hesitation to testify against a fellow officer, but rather a genuine struggle to apply limits in the absence of an authoritative definition.

Nevertheless, it does not follow that for purposes of assessing reasonable cause any reasonable finder of fact would be compelled to find the terms "admit" and "self-admit" devoid of meaning and susceptible to any interpretation an officer decided to apply. The officers who testified may have had a difficult time defining the outer limits of the term "admit," but they broadly agreed as to how it was used in practice. Contrary to Braga, Garcia, and Uribe's claims, all of the other Metro Division officers who were present during the events at issue in this case, as well as several other officers who testified at the preliminary hearing, stated that they would not have written "admit" or "self-admit" on an FI card unless the subject made a statement or nonverbal response that either explicitly or obliquely acknowledged his ties to a gang.

Judged by the standard of review applicable to a section 851.8 petition, a reasonable factfinder could conscientiously entertain an honest and strong suspicion that the respondents understood the terms "admit" and "self-admit" did not stretch to the lengths they claimed after the fact, and that they were making false statements by writing that Inocencio, Anthony, and Devon self-admitted being gang members.

2. Specific Intent to Deceive

To violate section 134, a defendant must not merely make a false statement, but must do so "with the intent to produce it or allow it to be produced as genuine or true for a fraudulent or deceitful purpose." (CALJIC No. 7.27.1.) Thus, section 134 requires proof of the defendant's "specific intent to produce a false instrument." (People v. Horowitz (1945) 70 Cal.App.2d 675, 701.) Because it is typically not possible to obtain direct evidence of a defendant's mindset at the time of a crime, intent "often must be inferred from circumstantial evidence surrounding the crime." (People v. Canizales (2019) 7 Cal.5th 591, 606.)

In this case, an honest and strong suspicion of an intent to deceive can be derived from the mismatch between the FI cards and the body-cam footage, as well as from inconsistencies in the respondents' testimony at the preliminary hearing. Even under the most expansive reasonable definition of "admit" or "selfadmit," there was no evidence that any of the FI card subjects admitted to being gang members. None of the subjects made a nonverbal motion that could be interpreted as a de facto admission. The respondents may have suspected that these individuals were gang members. We do not know one way or the other if that is correct, and the respondents could have been right. But to be a gang member is not the same as to admit being a gang member.

Inconsistencies in the respondents' testimony provide additional support of an objective belief about the defendants' intent to deceive. None of the respondent officers claimed to remember the investigations they performed regarding the subjects of the FI cards; that was certainly understandable given the length of time between the detentions and their testimony about what happened at them. Instead, they reconstructed what they must have done on the basis of their ordinary practices. Braga, Garcia, and Uribe each presented evidence regarding the subject's association with a gang, and testified that he must have relied upon that evidence three years earlier when filling out the FI cards. Thus, Braga presented Instagram postings from Anthony and Lewis from 2018 that suggested they had gang connections. In Garcia's case, the defense showed that other officers had filled out several previous FI cards for Inocencio, which would have been available to Garcia when filling out his own FI card. Uribe, the only officer who claimed to remember anything about originally encountering the subjects, testified that he saw Devon earlier the same day associating with other gang members at a known gang location.

The content of the FI cards, however, was inconsistent with the officers' explanations. Braga testified that when someone referred to Anthony as AntMalone in a 2018 Instagram comment, Braga understood that to refer to Anthony's gang moniker. Yet on the FI Card, Braga did not write AntMalone as Anthony's moniker. The previous FI cards for Inocencio stated that he was affiliated with the Westside Wilmas, with a moniker of Chencho, but Garcia wrote that he was a member of the archrival Eastside Wilmas, and that his moniker was Gordo. The officer who filled out the prior FI cards and claimed to have spoken with Inocencio many times testified that he had never heard Inocencio referred to as Gordo. Uribe testified that he recognized Devon because he had seen him earlier the same day at a known gang location at a vigil or memorial for the slain rapper Nipsey Hussle, who had ties to the Rollin 60's Crips. But Hussle was murdered in March 2019, nine months after Uribe filled out an FI card for Devon.

At the People's unopposed request, we take judicial notice of a Los Angeles Times article dated April 1, 2019, detailing Hussle's murder the previous day, https://www.latimes.com/local/lanow/la-me-ln-nipsey-hussle-shooting-20190401-story.html [as of October 2, 2023].

To be clear, in describing the inconsistencies in the respondents' testimony, we reach no conclusion on their ultimate veracity. Unlike the magistrate deciding a motion to dismiss at the preliminary hearing, who may" 'weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses'" (Esmaili, supra, 213 Cal.App.4th at p. 1460), we must "impose an objective legal standard . . ., [that] do[es] not accommodate any exercise of discretion." (Adair, supra, 29 Cal.4th at p. 908.) In other circumstances, an uncertainty in the facts is resolved in favor of a criminal defendant. In the context of a petition for a finding of factual innocence, however, it is the defendant who bears a high burden of proof, to demonstrate that no person of ordinary care and prudence could believe or conscientiously entertain any honest and strong suspicion that the defendants are guilty of the crimes charged. (Id. at p. 907.) The respondents in this case did not fully dispel all suspicion regarding their intentions in filling out the FI cards. Therefore, they are not entitled to a finding of factual innocence.

Although we reverse the trial court on the finding of factual innocence, we echo the trial court's assessment, upon dismissing the charges, that "there's a notion of trickle-down responsibility in this case," in which three officers are singled out to face criminal charges under a poorly drafted and administered policy, while higher authorities within the department escape similar levels of scrutiny. Although the respondents in this case failed to meet the" 'incredibly high'" burden for a finding of factual innocence (Esmaili, supra, 213 Cal.App.4th at p. 1459), that in no way suggests that we believe the trial court erred when it dismissed the charges against the officers after the preliminary hearing. The People conceded the dismissal was proper when they failed to challenge it, and have not presented any arguments here for us to disagree with the magistrate's conclusion.

DISPOSITION

The trial court's orders granting the respondents' petition for a finding of factual innocence are reversed.

We concur: ROTHSCHILD, P. J. BENDIX, J.