Filed 2/26/14 P. v. Navarro CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058744

v.                                                                       (Super.Ct.No. SWF023049)

MARIO NAVARRO,                                                           OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.

Affirmed.

         Christian Buckley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         After defendant and appellant Mario Navarro’s acquittal on various charges

stemming from an alleged sexual assault, defendant petitioned to have his arrest record

sealed and destroyed and for a finding of factual innocence under Penal Code sections



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851.8, subdivision (e), and 851.85.1 The trial court denied the petition, and defendant

appealed. We will affirm the order.

                                                 I

                      FACTUAL AND PROCEDURAL BACKGROUND

         Jane Doe and defendant went on several dates in 2007 when Jane was 35 years

old. Jane had lived at home her entire life. She claimed that she was a virgin who was

planning on waiting until marriage to have sexual intercourse.

         On September 29, 2007, Jane went to defendant’s apartment around 9:00 p.m.

After defendant and Jane kissed for 10 to 20 minutes, defendant carried Jane into his

bedroom. Defendant laid on the bed with Jane and continued kissing Jane. Defendant

then laid on top of Jane and spread her legs with his legs and rubbed up against her. Jane

tried to push her legs together but defendant prevented her from doing so. Defendant

then undressed Jane, lowered his shorts, and continued to rub his penis on her vagina

over her underwear. Defendant sucked on Jane’s breasts for 10 to 20 minutes and

digitally penetrated her vagina. Jane repeatedly told defendant to stop. Defendant then

took off Jane’s underwear and continued to penetrate her vagina with his finger and

penis.

         After about an hour, defendant stopped and the two talked while lying on the bed.

Jane said that she did not want to lose her virginity to defendant; defendant replied that he

respected that. The two again began to kiss. Later, defendant knelt on the floor, spread

         1   All future statutory references are to the Penal Code unless otherwise stated.


                                                2
Jane’s legs and performed oral sex on her for 20 to 30 minutes. He then got a condom,

put it on, and had sex with Jane. Jane told defendant to stop and that it was hurting her.

After defendant stopped, Jane grabbed her clothes, and left at around 2:00 a.m.

       The following morning Jane called the police and went in for a sexual assault

examination. Jane noticed that she had bruising on her legs. The examination revealed

that Jane had sucking marks on each of her breasts; abrasions, tenderness and redness on

her vagina; and a tear on her anus. The findings were consistent with Jane having sexual

contact as Jane described including penetration to the vagina and anus. Jane also had

bruising on her thighs.

       Defendant stated that his penis had vigorously rubbed Jane’s vaginal area while

they were clothed. He admitted to fondling and kissing Jane’s breasts and touching her

vaginal area with his mouth and fingers. Defendant also admitted to retrieving a condom

but denied having sexual intercourse with Jane, sexually penetrating Jane, and having

contact with Jane’s vagina except over her underwear. Defendant stated that he may

have slightly penetrated Jane with his finger, penis, and tongue over her underwear.

Defendant asserted that he never had sexual intercourse with Jane and never did anything

against her will or after she told him to stop.

       On April 2, 2008, an amended information was filed charging defendant with

unlawful sexual intercourse by force or fear (§ 261, subd. (a)(2)); unlawful sexual

penetration by force or fear (§ 289, subd. (a)(1)); and unlawful oral copulation by force or

fear (§ 288a, subd. (c)(2)).



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       On September 17, 2008, a jury found defendant not guilty of all the charges,

including the lesser included offenses.

       On March 19, 2010, defendant filed a petition for a finding of factual innocence

under sections 851.8, subdivision (e), and 851.85. An evidentiary hearing was held on

April 30, 2010, before Judge Mark Mandio. In May 2010 Judge Mandio denied the

petition without prejudice to defendant bringing the motion before Judge Albert J.

Wojcik who had presided over the trial.

       On July 6, 2012, defendant re-filed his petition for a finding of factual innocence

with Judge Wojcik.

       On September 7, 2012, Judge Wojcik denied defendant’s petition for a finding of

factual innocence. Judge Wojcik explained: “In reviewing the moving papers, reviewing

[his] notes, reviewing the transcript provided, it appears to the Court that that evidence

was reasonable relative to reasonable cause in believing that [defendant] did commit the

crimes. Whether or not it was proof beyond a reasonable doubt, obviously no. In

evaluating the record and the evidence, it might raise a substantial question as to guilt,

but it fails to completely exonerate the defendant.”

       On May 1, 2013, we granted defendant’s petition for writ of habeas corpus to

establish the constructive timely filing of a notice of appeal. On May 8, 2013, defendant

filed a notice of appeal challenging the denial of his petition for a factual finding of

innocence.




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                                            II

                                     DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a

summary of the facts and potential arguable issues, and requesting this court conduct an

independent review of the record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                            III

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              RAMIREZ
                                                                                      P. J.
We concur:


RICHLI
                          J.


KING
                          J.



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