Filed 1/8/16
                          CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION ONE


WILLIAM FETTERS,                                B252287, B253082

        Plaintiff and Respondent,               (Los Angeles County
                                                Super. Ct. No. BC437875)
        v.

COUNTY OF LOS ANGELES et al.,

        Defendants and Appellants.




        APPEAL from a judgment and an order of the Superior Court of Los Angeles
County, Ernest M. Hiroshige, Judge. Reversed.
        Collins, Collins, Muir + Stewart, Melinda W. Ebelhar, Nicole Davis Tinkham,
Catherine M. Mathers, Christian E. Foy Nagy, Eric C. Brown and David C. Moore for
Defendants and Appellants.
        Law Offices of Goldberg & Gage, Bradley C. Gage, Terry M. Goldberg, Milad
Sadr; Law Offices of Robert R. Shiri, Robert R. Shiri; Sanford M. Gage; Benedon &
Serlin, Gerald M. Serlin, Douglas G. Benedon and Wendy S. Albers for Plaintiff and
Respondent.
                                    ——————————
       On Sunday, May 10, 2009, when he was 15 years old, William Fetters (Fetters)
was shot by a Los Angeles County Sheriff’s deputy. Just prior to his shooting, Fetters
had been playing “cops and robbers” with friends while riding his bicycle and carrying a
replica of a semiautomatic pistol. Two deputies, while responding to a trespassing call,
spotted Fetters on his own with the imitation pistol riding down a sidewalk in the
direction opposite to which they were traveling. The deputies made an immediate U-turn
and approached Fetters in their patrol car from behind. The deputies ordered Fetters to
stop, which he did. What happened next is disputed. Either Fetters complied with the
deputies’ directive to drop the imitation firearm or he turned toward the deputies with the
replica in his hand. In either event, one of the deputies fired a single shot, wounding
Fetters in the chest.
       Fetters was subsequently charged with three misdemeanor accounts of brandishing
an imitation firearm so as to cause the deputies and a third party fear of bodily harm. In
September 2009, pursuant to a plea bargain, Fetters admitted the brandishing charges and
was placed on six months informal probation. In March 2010, following his successful
completion of probation, the charges against Fetters were dismissed. In May 2010,
Fetters filed suit against the deputies and the County of Los Angeles (the County),
alleging, among other things, violation of his federal civil rights under title 42 United
States Code section 1983 (section 1983). Defendants, pursuant to Heck v. Humphrey
(1994) 512 U.S. 477 [114 S.Ct. 2364, 129 L.Ed.2d 383] (Heck), argued that Fetters’s
section 1983 claim was barred by Fetters’s plea in the juvenile court proceeding. The
trial court bifurcated the Heck issue from the liability phase of the case. After a six-day
bench trial, the trial court ruled in favor of Fetters on the Heck issue.
       A subsequent jury trial was held on only the section 1983 claim against the deputy
who shot Fetters (summary judgment having been awarded to the other deputy) and the
County, the latter having previously agreed that a finding against the remaining deputy on
the section 1983 claim would constitute a finding that both the deputy and the County
committed battery against Fetters. The jury returned a partial verdict in favor of Fetters,

                                               2
finding that the deputy used excessive force and awarding him approximately
$1.1 million in compensatory damages; the jury, however, was unable to reach a verdict
on the issue of punitive damages. In addition, Fetters was awarded over $2 million in
attorney fees.
       The County appeals from both the judgment and the attorney fees award. One of
the County’s central contentions on appeal is that the trial court erred by concluding that
Fetters’s section 1983 claim was not barred under Heck, supra, 512 U.S. 477. We agree
and remand for further proceedings consistent with our holding.
                                    BACKGROUND
I.     Fetters’s criminal proceeding
       On August 3, 2009, a criminal petition was filed against Fetters. Fetters was
charged with three counts of brandishing an imitation firearm in violation of Penal Code
section 417.4.1 Each count was identical except for the names of the three different
alleged victims: the two deputies, Stephen Sorrow (Sorrow) and Andrew Campbell
(Campbell), and a third person. For example, the count regarding Sorrow, the officer that
fired the shot that wounded Fetters, states as follows: “On or about 05/10/2009 within
the County of Los Angeles, the crime of BRANDISHING A REPLICA GUN, in

       1 Penal Code section 417.4 provides as follows: “Every person who, except in
self-defense, draws or exhibits an imitation firearm . . . in a threatening manner against
another in such a way as to cause a reasonable person apprehension or fear of bodily
harm is guilty of a misdemeanor punishable by imprisonment in a county jail for a term
of not less than 30 days.” An “imitation firearm” is defined as any BB device, toy gun,
replica of a firearm, or other device that is so substantially similar in coloration and
overall appearance to an existing firearm as to lead a reasonable person to perceive that
the device is a firearm.” (Pen. Code, § 16700, subd. (a) [previously Pen. Code, § 12550,
subd. (c)].)
       When prosecuting the crime of displaying an imitation firearm by a minor, the
prosecution need not prove the minor knew or should have known he was displaying the
imitation weapon in a manner likely to cause another to experience apprehension or fear
of bodily harm. (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) In addition, courts
have construed the term “reasonable person” in section 417.4 to refer to “anyone who
witnesses the actions of the perpetrator, not just to the person against whom the device is
drawn or exhibited.” (Id. at p. 123.)

                                             3
violation of PENAL CODE 417.4, a Misdemeanor, was committed by said minor, who
did unlawfully draw and exhibit an imitation firearm in a threatening manner against
S. SORROW in such a way as to cause a reasonable person apprehension and fear of
bodily harm.” At the August hearing, Fetters appeared with counsel and denied the
petition’s allegations.
       On September 14, 2009, Fetters appeared once more in juvenile court, again
represented by counsel. The minute order from the September hearing indicates that
Fetters changed his plea and admitted the charges against him—the preprinted minute
order has two boxes that the court can check to record the juvenile defendant’s plea:
“admits” or “pleads no contest.” The “admits” box is checked. The juvenile court also
checked boxes indicating, among other things that Fetters understood “the nature of the
conduct alleged in the petition and the possible consequences of an admission,” that his
admission was “freely and voluntarily made,” and that “there is a factual basis for the
admission.” The juvenile court further found that “[t]he petition is . . . true and said
petition is sustained.”
       The minute order from the September hearing indicates further that the court “read
and considered the Probation Officer’s Report filed herein and said report is admitted into
evidence by reference.” A probation report prepared on September 10, 2009, contains the
following summary of the “elements and circumstances” of the charges against Fetters:
“On May 10, 2009 at 7:52 p.m., the minor was riding his bicycle and holding what
appeared to be a firearm. The minor was contacted by deputies and instructed to put the
gun down. The Minor pointed the gun at the deputies in a threatening manner. The
minor was shot by Deputy Sorrow, and then transported to Holy Cross Hospital for
treatment. The firearm was later identified as a plastic replica pistol, with simulated
wood grips and a painted black barrell [sic.].” The probation report identified both
deputies as “victims” of Fetters misconduct. The probation report recommended that
Fetters be placed on informal probation without wardship.




                                              4
       At the September hearing, the juvenile court, over the objection of the prosecutor,
placed Fetters on informal probation without wardship for six months.2 Fetters accepted
the terms and conditions of his probation. According to Fetters’s counsel, he changed his
plea from denying the allegations to admitting them in order to receive six months of
probation.
       On March 15, 2010, six months later, the juvenile court granted Fetters’s motion
to withdraw his plea and dismiss the case, finding that Fetters “successfully completed all
terms and conditions” of his probation. Accordingly, the juvenile court “terminated” its
prior order and dismissed the petition against Fetters.
II.    Fetters’s civil proceeding
       On May 17, 2010, Fetters filed his initial complaint against the deputies and the
County, alleging, inter alia, negligence, battery, and intentional infliction of emotional
distress, as well as a violation of “civil” and “constitutional” rights.”3 Fetters’s core
allegations were that the deputies used “excessive and unreasonable force” against him
and that the County had been “negligent in the administration, supervision and



       2 At the subsequent Heck hearing during the civil case, the prosecutor testified that
due to the “very serious nature of the charges,” he was seeking, not the “informal”
probation that was recommended by the probation officer and ultimately granted to
Fetters, but a more “formal” probation that would make Fetters a ward of the court and
might include “some sort of custody time.”
       3 Although Fetters’s original complaint did not contain a separate and distinct
cause of action for violation of section 1983, it did contain a cause of action for violation
of “civil rights” protected by Civil Code section 52.1, which protects against the
interference or the attempt to interfere “with the exercise or enjoyment by any individual
or individuals of rights secured by the Constitution or laws of the United States, or of the
rights secured by the Constitution or laws of this state.” (Civ. Code, § 52.1, subd. (a).)
In addition, the original complaint also contained a cause of action for violation of
“constitutional rights.” Both of these causes of action referred to Fetters’s right to be
“free from excessive and unreasonable force.” As evidenced by the court’s ruling on the
County’s motion for summary judgment and by the subsequent Heck hearing, discussed
infra, both the parties and the trial court treated these causes of action as though they
encompassed an express claim for violation of section 1983.

                                              5
entrustment” of the deputies. With regard to the allegedly excessive and unreasonable
force, Fetters alleged that he was shot “in his back” after he dropped the “toy cap gun.”
       On January 6, 2012, the trial court granted summary judgment as to Campbell, but
denied it as to Sorrow and the County, finding that “there is a triable issue as to the basis
for Plaintiff’s conviction and specifically whether he brandished the gun at the time he
was shot by Deputy Sorrow. [Citation.] Thus, assuming Plaintiff did plead guilty to a
violation of Penal Code § 417.4, a trial or Heck hearing would be required to determine
the factual basis for the [plaintiff’s] conviction.”
       A Heck mini-trial was held over the course of six days in January and February
2012. With regard to whether Fetters pointed the imitation firearm at the deputies
immediately before being shot, the testimony was conflicting. On the one hand, Fetters
and a nonparty adult eyewitness testified that he never pointed the gun at the deputies
prior to getting shot, with Fetters affirmatively stating that he had dropped the gun at the
direction of the deputies prior to being shot. On the other hand, both deputies testified
that Fetters not only had the gun in his hand before being shot, but that as he turned
toward them he pointed the gun at them.4 Adding to the conflicting testimony, a
nonparty adult eyewitness testified that Fetters did not drop the gun before being shot and
that he did turn toward the deputies; however, this witness could not tell if Fetters was
pointing the gun toward the deputies when he turned toward them.
       There was, however, general agreement on the how long the encounter between
the deputies and Fetters lasted. According to Campbell, from the time he spotted Fetters
riding his bicycle in the opposite direction that the patrol car was traveling until Sorrow
shot Fetters a total of just “30 seconds” elapsed. According to Sorrow, from the time he
began issuing commands to Fetters until he shot Fetters “probably seven seconds or less”

       4 An adult witness testified that earlier in the day of the shooting, Fetters had
pointed what looked like a “9 millimeter” pistol at the witness and his daughter who were
sitting on the front porch of their house. The witness testified that because the pistol did
not have a red tip on it, it looked “real” and, as a result, Fetters’s actions made him
“nervous,” so nervous in fact that he told his daughter to get inside the house and stay
there and then told Fetters to go to his own house.

                                               6
elapsed. According to the nonparty witnesses, the incident between Fetters and the
deputies—from the time the deputies pulled up behind Fetters on his bicycle until he was
shot—lasted a “few seconds,” “three maybe four seconds”; it was an “instant. It was
seconds. Everything from the beginning to end it just went very quickly.”
       With regard to the criminal proceeding itself, there was even more agreement.
Both Fetters’s defense counsel and the prosecutor testified at the Heck hearing, and both
affirmed that at the September 14, 2009 hearing, Fetters admitted the factual basis for the
petition.
       After independently securing copies of the minute order dismissing the criminal
petition, the trial court requested supplemental briefing from the parties regarding the
effect of the dismissal on the Heck issue. On September 18, 2012, after receiving the
parties’ supplemental submissions, the trial court denied the “Heck defense,” because
there was “no underlying conviction to support” such a defense: “[T]his Court finds that
at the time this civil case was filed there was no existing prior conviction or admission or
sentence that would bar the civil case before this Court either under Heck and its
subsequent case progeny because the theory that the subsequent civil action against the
police officers was a collateral attack on either the prior criminal conviction, admission or
sentence is inapplicable.” (Boldface omitted.)
       On or about November 27, 2012, Fetters filed a first amended complaint (FAC).5
The County and Sorrow answered the FAC on February 25, 2013.
       On February 27, 2013, opening statements in the liability phase of the trial were
delivered to the jury. Before the case was submitted to the jury, the County, Sorrow, and
Fetters entered into a stipulation by which Fetters did not proceed with his negligence and
Bane Act (Civ. Code, § 52.1) causes of action against the County. In exchange, the
County agreed that if the jury found that Sorrow violated section 1983 such a finding
“would constitute a finding that both Sorrow and the County committed battery, making
the County liable for all sums under the judgment except for punitive damages.”

       5 The   FAC contained an express cause of action for violation of section 1983.

                                              7
       On March 26, 2013, after a week of deliberation, the jury returned with a partial
verdict on three of the four questions presented to them, finding that Sorrow used
excessive force when he shot Fetters and awarding Fetters $1,127,600 in compensatory
damages. On the following day, the jury resumed deliberations on the remaining
question (punitive damages), but could not reach a decision, leading the trial court to
declare a mistrial on that issue. Following the denial of its motion for a new trial, the
County timely appealed on November 1, 2013 (B252287).
       In October 2013, Fetters moved for his attorney fees. On December 3, 2013, the
trial court awarded Fetters $2, 317,043 in attorney fees. On December 5, 2013, the
County and Sorrow timely appealed from the attorney fees award (B253082). On
May 15, 2014, pursuant to a stipulation by the parties, the two separate appeals were
consolidated for all purposes.
                                       DISCUSSION
I.     Standard of review
       The sole question before the trial court at the Heck hearing was whether Fetters’s
section 1983 claim was foreclosed by the United States Supreme Court’s holding in
Heck, supra, 512 U.S. 477. The trial court answered that question in the negative. There
was no substantial conflict in the testimony of the witnesses with regard to Fetters’s
criminal proceeding. The issues presented at the Heck hearing involved questions of law,
which we review de novo. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106
Cal.App.4th 662, 669–670 [reviewing de novo trial of special defense where there were
no disputed factual issues resolved by trial court].)
II.    Fetters’s section 1983 claim is barred
       Heck, supra, 512 U.S. 477, bars a section 1983 claim if it is inconsistent with a
prior criminal conviction or sentence arising out of the same facts, unless the conviction
or sentence has been subsequently resolved in the plaintiff’s favor. (Id. at pp. 486–487.)
In essence then, Heck requires the reviewing court to answer three questions: (1) Was
there an underlying conviction or sentence relating to the section 1983 claim? (2) Would
a “judgment in favor of the plaintiff in the section 1983 action ‘necessarily imply’ . . . the

                                              8
invalidity of the prior conviction or sentence?” (3) “If so, was the prior conviction or
sentence already invalidated or otherwise favorably terminated?”6 (Magana v. County of
San Diego (S.D.Cal. 2011) 835 F.Supp.2d 906, 910 (Magana).) In Yount v. City of
Sacramento (2008) 43 Cal.4th 885, 893–894 (Yount), our Supreme Court adopted Heck,
supra, 512 U.S. 477.
       Here, we find that (a) there was an underlying conviction and/or sentence relating
to Fetters’s section 1983 claim for the purposes of the Heck inquiry, (b) a judgment in
favor of Fetters in the section 1983 action would necessarily imply that the prior



       6 The trial court, based on a subsequent post-Heck decision by the United States
Supreme Court, Wallace v. Kato (2006) 549 U.S. 384 [127 S.Ct. 1091, 166 L.Ed.2d 973],
concluded that Fetters’s section 1983 claim was not barred by Heck because there was no
underlying conviction that could be attacked since the juvenile court later allowed Fetters
to change his plea and dismissed the petition. The trial court’s conclusion was based on a
misreading of Heck and Wallace. In Heck, the court did not limit its holding to a criminal
conviction, but repeatedly stated that its holding applied to a “conviction or sentence.”
(Heck, supra, 512 U.S. at pp. 486, 487, 488, 489, & 490, italics added.) The court in
Heck did not limit the scope of either “conviction” or “sentence,” but left those terms
undefined. (Id. passim.) In Wallace, the court did not clarify what is meant by a
“conviction or sentence” for purposes of the Heck bar. (Wallace, passim.) Instead, the
court was focused entirely on when a claim for false arrest or false imprisonment accrues,
holding that Heck does not apply to “an anticipated future conviction,” stating that “the
Heck rule for deferred accrual is called into play only when there exists a ‘conviction or
sentence that has not been . . . invalidated.’” (Id. at p. 393.) Here, there was no
anticipated future conviction. Rather, there was an effective conviction and an informal
sentence. As a result, the central issue is whether the subsequent withdraw of that
admission following completion of the sentence was a favorable termination of the
criminal proceeding.
       In other words, based on its misreading of Heck, supra, 512 U.S. 477 and Wallace
v. Kato, supra, 549 U.S. 384, the trial court erred in its analysis by collapsing two
separate inquiries under Heck—whether there ever was a conviction or sentence and
whether that prior conviction or sentence was subsequently invalidated or otherwise
terminated in Fetters’s favor. As discussed in more detail herein, there was a “conviction
or sentence” (as that term has been interpreted by both California and federal courts) that
could be collaterally attacked by Fetters’s section 1983 action, a “conviction or sentence”
that was not resolved in Fetters’s favor as that concept is understood under California law
and relevant federal case law.

                                             9
conviction or sentence was invalid, and (c) Fetters’s prior conviction or sentence was not
invalidated or terminated in his favor.
       A.     Fetters was convicted and/or sentenced for brandishing
       Fetters contends that his “admits” plea in the criminal proceeding was of no
meaningful significance. Specifically, Fetters argues that because his plea was made
“[p]ursuant to People vs. West [(1970) 3 Cal.3d 595],” it was a plea of nolo contendre
and, as such, it did not admit the truth of the factual predicates for the petition’s
allegations, thereby rendering it of no consequence to his subsequent section 1983 claim.
Fetters’s argument is unpersuasive for several reasons.
       First, a plea entered pursuant to People v. West, supra, 3 Cal.3d. 595, does not
mean that the plea was necessarily a nolo contendre plea. Although the facts of West did
involve a nolo contendre plea, West’s holding was not limited to such pleas. In West, our
Supreme Court was not concerned with nolo contendre pleas or guilty pleas per se;
rather, it was focused on how a defendant came to offer any plea—either a guilty plea or
a nolo contendre plea. More specifically, the West court was concerned with plea
bargains. As the very first sentence of the opinion makes clear, the underlying purpose of
the decision was to legitimize plea bargains and clarify the procedure by which such
pleas should be entered: “We undertake here to confirm the legality of the plea bargain
and to set up procedures for its acceptance or rejection in the strong light of full
disclosure.” (Id. at p. 599.)7 Because the court in West was concerned with plea
bargains, it repeatedly stressed that its holding applied to “a plea of guilty or nolo
contendre.” (Id. at pp. 600, 604, 610, 612, 613.) In other words, when the September
2009 minute order states that Fetters’s plea was made “[p]ursuant to People vs. West,”
it simply means that the plea was the result of a plea bargain. (See People v. Collins
(2001) 26 Cal.4th 297, 309, fn. 4.)

       7 Atthe time People v. West, supra, 3 Cal.3d. 595 was decided, plea bargains
needed to be legitimized and the proper procedure settled, because, although such
arrangements were in “widespread use,” they were often regarded as “constitutionally
suspect.” (Id. at p. 605.)

                                              10
       Second, as the court in People v. West, supra, 3 Cal.3d. 595, emphasized, whether
the bargained-for plea is guilty or nolo contendre, it is an admission of the truth of the
facts in the petition: “A defendant who knowingly and voluntarily pleads guilty or nolo
contendere can hardly claim that he is unaware that he might be convicted of the offense
to which he pleads; his plea demonstrates that he not only knows of the violation but is
also prepared to admit each of its elements.” (Id. at p. 612.) In other words, even if
Fetters’s plea was nolo contendre, it would still indicate his willingness to admit all of the
elements of the brandishing charges. (See Nuno v. County of San Bernardino (C.D.Cal.
1999) 58 F.Supp.2d 1127, 1135 [for Heck analysis, nolo contendere plea “has the same
effect as a guilty plea or jury verdict of guilty”].) This very point was recently
emphasized by our Supreme Court in In re Alonzo J. (2014) 58 Cal.4th 924: “In a
[juvenile] delinquency proceeding, there is no basis to conclude that the legal effect of a
no contest plea differs in any way from that of an admission. . . . Thus, both a no contest
plea and an admission have the effect of establishing the truth of the petition’s
allegations . . . .” (Id. at p. 934, fn. omitted, italics added.) Indeed, at the Heck hearing,
Fetters’s counsel testified repeatedly that his client “admitted to the factual basis” that
served as the foundation for the brandishing charges.
       Third, even if there was a meaningful distinction between a guilty plea (or an
admission in the context of a juvenile case) and a plea of nolo contendre with regard to
the truth of the predicate facts, Fetters’s plea was not a nolo contendre plea. The
September 2009 minute order contains two boxes with regard to the criminal petition:
“admits” or “pleads no contest.” The box for “pleads no contest” is unchecked. The box
for “admits,” however, is checked. As a result of Fetters’s admission, the petition was
deemed “true” and, accordingly, “sustained.”
       Fourth, even if Fetters’s plea could reasonably be construed as nolo contendre,
such a plea constitutes a conviction subject to an inquiry under Heck, supra, 512 U.S.
477. In Yount, supra, 43 Cal.4th 885—the decision adopting Heck—the plaintiff entered
a plea of no contest to driving under the influence and, among other things, was placed on
probation. (Yount, at p. 891.) The court regarded plaintiff’s unelaborated, bare plea of no

                                              11
contest as a criminal conviction for purposes of its analysis of Heck: “To the extent the
Court of Appeal believed that Heck was inapplicable here merely because Yount had
entered a no contest plea without a preliminary hearing and without explicit identification
of which of the multiple acts of resistance formed the factual basis for his conviction, it
was mistaken.” (Yount, at p. 895.)
       Fifth, even if Fetters’s “admits” plea did not somehow constitute a conviction, he
did receive a sentence, six months of informal probation. Both California and federal
courts outside the Heck context regard probation as a “form of punishment”: “‘While
probation may be considered a mild form of ambulatory punishment imposing
meaningful restraints, its true nature is an act of judicial grace. The [L]egislature has
granted to the judiciary discretionary power to grant probation as a means of testing a
convicted defendant’s integrity and future good behavior. Unlike parole, granted by an
administrative agency, probation is granted by the court when the sentencing judge
deems the protection of society does not demand immediate incarceration. It is not
granted because of any merit or worthiness of the wrongdoer.’” (In re Marcellus L.
(1991) 229 Cal.App.3d 134, 142, italics omitted; see People v. Rodriguez (1990) 51
Cal.3d 437, 442 [describing a probationer as having only “conditional liberty”]; see also
United States v. Bosser (9th Cir. 1989) 866 F.2d 315, 316–317 [Hawaii’s “deferred-
acceptance rule,” which imposes a “probation-like sentence” is a “form of punishment”];
United States v. Sylve (9th Cir. 1998) 135 F.3d 680 [Washington’s deferred prosecution
program is a “form of punishment”].)
       In sum, the first inquiry under Heck, supra, 512 U.S. 477 is answered in the
affirmative: there was a conviction and a sentence, which, because it involved the same
set of facts and circumstances, related directly to Fetters’s subsequent section 1983 claim.
We turn now to whether a judgment in Fetters’s civil action would necessarily imply the
invalidity of his conviction and sentence.




                                             12
       B.     A judgment for Fetters in his section 1983 action would necessarily imply
the invalidity of his conviction and sentence
       The Fourth Amendment’s prohibition on “unreasonable . . . seizures” protects
individuals from excessive force in the context of an arrest or seizure. (U.S. Const., 4th
Amend.; see Graham v. Connor (1989) 490 U.S. 386, 394 [109 S.Ct. 1865, 104 L.Ed.2d
443] (Graham ).) Graham explained that “all claims that law enforcement officers have
used excessive force—deadly or not—in the course of an arrest, investigatory stop, or
other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard . . . .” (Id. at p. 395.)
       The United States Supreme Court has “long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” (Graham, supra, 490 U.S. at p. 396.)
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
[Citation.] . . . ‘Not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers,’ [citation] violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” (Id. at
pp. 396–397.)
       “As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry
in an excessive force case is an objective one: the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation. [Citations.] An officer’s
evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.” (Graham, supra, 490 U.S. at p. 397.)
       In Yount, supra, 43 Cal.4th 885, our Supreme Court held that an arrestee’s section
1983 excessive force claim was barred under Heck, supra, 512 U.S. 477. In that case

                                               13
Steven Yount suffered injuries when a police officer, Thomas Shrum, shot him in the
buttocks while trying to transport him to jail following his arrest for driving under the
influence. (Yount, at p. 888.) Yount—struggling, swearing and yelling at officers—had
been placed in the patrol car. After he shattered the window by kicking it, officers
attempted to transfer Yount to another car. During the ensuing struggle Yount kicked an
officer in the groin and spat on him. Officers succeeded in restraining Yount’s legs and
ankles, but he still tried to bite, kick and spit at them. Officer Shrum, intending to subdue
Yount with his taser, mistakenly drew his pistol and shot him. (Id. at pp. 890–891.)
       Yount, who was charged with driving under the influence, violent resistance and
battery on a peace officer, pleaded no contest to driving under the influence and a single
count of misdemeanor resisting arrest. He also stipulated to a factual basis for the plea
without a recitation of what those facts were. (Yount, supra, 43 Cal.4th at p. 895.) Yount
subsequently sued Officer Shrum and the City of Sacramento for violating his civil rights,
alleging, when he was shot, he was “arrested, handcuffed, and hobbled at the time and
was not then attempting to interfere with the officers; that Yount at no time posed any
reasonable threat of violence to Officer Shrum or did anything to justify the force used
against him; and that the force used against him was excessive, unnecessary, and
unlawful.” (Id. at pp. 891–892.) The trial court ruled that Yount’s section 1983 claim
was barred under Heck, supra, 512 U.S. 477. The Court of Appeal reversed, “finding the
possibility that Officer Shrum’s alleged use of excessive force may have been temporally
distinct from the acts that formed the basis of Yount’s no contest plea to resisting the
officers sufficient to avoid the Heck bar.” (Yount, at p. 888.)
       The Yount court, affirmed the Court of Appeal’s decision, but only in part.
Building off of the notion of a temporal distinction, the court in Yount, supra, 43 Cal.4th
885 found that although there was one “‘continuous chain of events,’” those events gave
rise to “‘two isolated factual contexts . . . , the first giving rise to criminal liability on the
part of the criminal defendant, and the second giving rise to civil liability on the part of
the arresting officer.’” (Id. at p. 899.) On the one hand, Yount’s section 1983 claim was
barred as inconsistent with his conviction for driving under the influence and a single

                                                14
count of misdemeanor resisting arrest “to the extent it alleges that Officer Shrum lacked
justification to arrest him or to respond with reasonable force to his resistance.” (Ibid.)
On the other hand, Yount’s claim regarding the use of deadly force following his arrest
was not barred by Heck, supra, 512 U.S. 477: “the record at the Heck hearing did not
support the use of deadly force against Yount, nor did the criminal conviction in itself
establish a justification for the use of deadly force.” (Yount, at p. 898.) In deciding to bar
part of Yount’s section 1983 claim, the court noted that Yount had “obtained substantial
benefit from his general plea. . . . It would be anomalous to construe Yount’s criminal
conviction broadly for criminal law purposes so as to shield him from a new prosecution
arising from these events but then, once he had obtained the benefits of his no contest
plea, to turn around and construe the criminal conviction narrowly so as to permit him to
prosecute a section 1983 claim arising out of the same transaction.” (Id. at p. 897.)
       In recognizing the role that temporality plays in the Heck analysis, the court in
Yount, supra, 43 Cal.4th 885, relied upon Susag v. City of Lake Forest (2002) 94
Cal.App.4th 1401 (Susag). In Susag, the court affirmed summary judgment for the
deputies and the municipalities because the plaintiff, who was convicted of resisting
arrest, “alleged no claims of excessive force that took place after he was finally subdued
and placed in the patrol car.” (Id. at p. 1410, italics added.) As a result, the plaintiff’s
allegations that he was subjected to excessive force, if proven, would necessarily imply
the invalidity of his conviction for resisting an officer. (Id. at p. 1412.) In Susag, as in
Yount, the court identified several public policy concerns that compelled its holding:
Susag could not profit from his own illegal act and should bear the sole responsibility for
the consequences of his act, and a determination contrary to the result in the criminal
proceedings would engender disrespect for the courts and discredit the administration of
justice. (Susag, at p. 1412.)
       Here, specific factual allegations in Fetters’s complaint (Sorrow used “excessive
and unreasonable force”) are necessarily inconsistent with the validity of his admission in
his criminal proceeding that he brandished the imitation firearm in a threatening manner
against Sorrow in such a way as to cause “a reasonable person apprehension and fear of

                                              15
bodily harm.” In his civil complaint and in his testimony at the Heck hearing, Fetters
denied brandishing the imitation firearm in any way against Sorrow. Put a little
differently, Fetters’s admissions in his criminal proceeding established a justification for
Sorrow’s split-second use of deadly force—he admitted brandishing an imitation firearm
that put Sorrow in reasonable fear of his life.
       Moreover, unlike in Yount, there were not two isolated factual contexts, but one
continuous and very brief factual situation that lasted just seconds. To try to parse the
relevant facts at issue here into two separate and distinct incidents, as Fetters attempts to
do, would be to engage in the kind of “temporal hair-splitting” that California and other
courts correctly refuse to perform. (Truong v. Orange County Sheriff’s Dept. (2005) 129
Cal.App.4th 1423, 1429.) In Truong, the Court of Appeal affirmed the trial court’s
finding that plaintiff’s section 1983 claims were barred because “[t]his was not a case
where the acts alleged to be violations of plaintiff’s civil rights occurred hours, or even
minutes after the act which led to the plaintiff’s conviction; the acts occurred mere
moments later.” (Ibid.) Similarly, in Smith v. City of Hemet (9th Cir. 2005) 394 F.3d
689, the Ninth Circuit recognized that an allegation of excessive force by a police officer
would not be barred by Heck, supra, 512 U.S. 477 if it were distinct temporally (or
spatially) from the factual basis for the person’s conviction. (Smith, at p. 699). For
example, the Smith court noted that “Smith would be allowed to bring a § 1983
action . . . if the use of excessive force occurred subsequent to the conduct on which his
conviction was based.” (Id. at p. 698.) In other words, where there is “no break”
between a plaintiff’s “provocative act . . . and the police response that he claims was
excessive,” section 1983 claims are barred under Heck because such claims would
necessarily call into question the criminal conviction. (Cunningham v. Gates (9th Cir.
2002) 312 F.3d 1148, 1155; see Beets v. County of Los Angeles (2012) 669 F.3d 1038,
1044–1045 [affirming Heck preclusion because “no separation” between criminal actions
and alleged “excessive force”].) Here, there was no meaningful temporal break between
the provocative act that Fetters admitted to in his criminal proceeding—brandishing an


                                              16
imitation firearm so as to put Sorrows in reasonable fear of his life—and the use of force
by Sorrows that he claims was excessive and unreasonable.
       In short, a verdict in Fetters’s favor on his section 1983 claim “would tend to
undermine” (Beets v. County of Los Angeles, supra, 669 F.3d at p. 1040) his conviction
and sentence: if Sorrow was found under the Fourth Amendment’s “reasonableness”
standard to have used excessive force it would necessarily suggest that Fetters’s
conviction for brandishing a imitation firearm in such a way as to cause a reasonable
person apprehension or fear of bodily harm was without a basis in fact, and that is all that
is required under this prong of the Heck inquiry. The Heck inquiry does not require a
court to consider whether the section 1983 claim would establish beyond all doubt the
invalidity of the criminal outcome; rather, a court need only “consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction
or sentence.” (Heck, supra, 512 U.S. at p. 487, italics added.) As the Ninth Circuit has
clarified, Heck bars suits “based on theories that ‘necessarily imply the invalidity of [the
plaintiff's] conviction[s] or sentence[s].’” (Cunningham, supra, 312 F.3d at p. 1153,
italics added.)8
       Since a favorable verdict on the section 1983 would tend to undermine or imply
the invalidity of Fetters’s conviction and/or sentence, we need to consider next whether


       8  Fetters attempts to convince us that his section 1983 claim did not necessarily
imply that his conviction and/or sentence was invalid by relying on Estate of Srabian v.
County of Fresno (E.D.Cal. 2012, Dec. 12, 2012, No. 1:08-CV-00336-LJO-SMS) 2012
WL 5932938, which found that brandishing was not inconsistent with an award in an
excessive force section 1983 case. Fetters’s reliance is misplaced because the
brandishing statute at issue in that case (Pen. Code, § 417, subd. (a)(2)) is significantly
different than the one at issue here (Pen. Code, § 417.4). In Srabian, the brandishing
statute at issue does not require that a victim be put in reasonable fear of bodily harm; it
merely requires that a person draw or exhibit a firearm “in a rude, angry, or threatening
manner.” (Pen. Code, § 417, subd. (a)(2).) In order to receive probation, Fetters
admitted to Penal Code section 417.4, which meant that he admitted that he brandished
an imitation firearm in such a way as to put Sorrow in reasonable fear for his life. As a
result, a verdict finding that Sorrow used unreasonable force would necessarily call into
question Fetters’s admission.

                                             17
Fetters’s criminal proceeding was terminated in his favor as that concept is understood in
a legal sense. From a practical and subjective perspective, Fetters’s criminal proceeding
was undoubtedly resolved in his favor—he did not have to serve any jail time and the
petition was ultimately dismissed clearing Fetters’s way forward in life. But, as we
discuss in the next section, from a legal perspective, the criminal proceeding was not
resolved in Fetters’s favor.
       C.     Fetters’s criminal proceeding was not terminated in his favor
       In order to affirm the trial court’s decision below, we would need to conclude that
the dismissal of the criminal petition against Fetters following his successful completion
of probation was tantamount to an acquittal. This we cannot do. As explained in more
detail below, the law required Fetters to show that there was not even a residue of doubt
that he was innocent of the brandishing charges. Fetters, however, could not make such a
showing.
       First, there is scant indication from Fetters himself in the criminal proceeding that
he was innocent. With the advice of counsel, he changed his plea and “admit[ted]” the
charges, and, in so doing, also admitted that he understood “the nature of the conduct
alleged in the petition and the possible consequences of an admission,” that his admission
was “freely and voluntarily made,” and that “there is a factual basis for [his] admission.”
       Second, and more critically, there is no indication from the dismissing parties—
the juvenile court and the prosecutor—that they regarded Fetters as being innocent of the
brandishing charges. In fact, the prosecutor was so convinced of Fetters’s guilt that he
only reluctantly agreed to informal probation.
       Third, the petition was not ultimately dismissed because some exculpatory
information came to light establishing Fetters’s innocence. Rather, the petition was
dismissed because Fetters successfully completed his sentence of informal probation. In
exchange for admitting the truth of the petition, Fetters received a lesser sentence than he
might have received if he had gone to trial and been found guilty.




                                             18
       Because there is more than a residue of doubt about Fetters’s innocence, we
cannot find that the criminal proceeding was terminated on a favorable basis for Fetters.
Accordingly, his section 1983 claim is barred.9
              1.      In order to pursue his section 1983 claim Fetters was required to
show a favorable termination of his criminal proceeding
       In Heck, supra, 512 U.S. 477, the United States Supreme Court held that a
plaintiff cannot maintain a section 1983 action for excessive force absent proof that his or
her conviction or sentence has been invalidated by appeal or other proceeding. (Heck, at
484–490.) The Heck court, citing to a California Supreme Court decision (Carpenter v.
Nutter (1899) 127 Cal. 61), analogized a section 1983 claim in such circumstances to the
common law cause of action for malicious prosecution, which similarly includes the
termination of the prior proceeding in favor of the accused as an element of the cause of
action. (Heck, at p. 484.) The favorable termination requirement “‘avoids parallel
litigation over the issues of probable cause and guilt . . . and it precludes the possibility of
the claimant [sic] succeeding in the tort action after having been convicted in the
underlying criminal prosecution, in contravention of a strong judicial policy against the
creation of two conflicting resolutions arising out of the same or identical transaction.’
[Citation.] Furthermore, ‘to permit a convicted criminal defendant to proceed with a
malicious prosecution claim would permit a collateral attack on the conviction through
the vehicle of a civil suit.’ [Citation.] This Court has long expressed similar concerns for
finality and consistency and has generally declined to expand opportunities for collateral


       9  Although Yount, supra, 43 Cal.4th at p. 902, found that the Heck bar applies
equally to state law tort claims, such as battery, the issue of whether all claims in the
operative pleading at the time of the Heck hearing would be barred was not briefed below
(or at least not included in the record submitted to us) on appeal. In addition, it is unclear
from the record below whether Fetters could amend his claims to add claims that are not
subject to the Heck bar. Accordingly, we remand for further proceedings consistent with
our holding.
       We decline the County’s invitation to direct that further proceedings be heard
before a different trial judge.

                                              19
attack. [Citations] We think the hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments applies to § 1983
damages actions that necessarily require the plaintiff to prove the unlawfulness of his
conviction or confinement, just as it has always applied to actions for malicious
prosecution.” (Id. at pp. 484–486, fns. omitted.) Thus, “in order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make
such a determination, or called into question by a federal court’s issuance of a writ of
habeas corpus [citation].” (Id. at pp. 486–487, fn. omitted, italics added.) The
requirement that the section 1983 plaintiff’s conviction or sentence have been reversed,
expunged, or invalidated “is called the ‘favorable termination’ requirement of Heck.”
(S.E. v. Grant County Bd. of Educ. (6th Cir. 2008) 544 F.3d 633, 637.)
       In Yount, supra, 43 Cal.4th 885, our Supreme Court held, consistent with Heck,
supra, 512 U.S. 477, that a plaintiff cannot maintain a section 1983 civil rights claim for
excessive force absent proof that his/her conviction has been invalidated by appeal or
other proceeding. (Yount, supra, at pp. 894–895.) In reaching its decision, the Yount
court quoted extensively from the discussion in Heck analogizing section 1983 claims to
malicious prosecution claims. (Yount, at pp. 893–894.) The Yount court adopted Heck’s
favorable termination requirement even though such a requirement might have harsh
consequences: “[T]his court has recently reiterated its concern about the use of civil suits
to collaterally attack criminal judgments in the context of a convicted criminal
defendant’s civil action against his or her attorney for legal malpractice. [Citation.] In
holding that a criminal defendant must obtain exoneration by postconviction relief as a
prerequisite to obtaining relief for the legal malpractice that led to that conviction, we
recognized that our ruling would preclude recovery ‘even when ordinary collateral
estoppel principles otherwise are not controlling, for example because a conviction was
based upon a plea of guilty that would not be conclusive in a subsequent civil action

                                             20
involving the same issues.’ [Citation.] Our justification for a bar of that scope included
the promotion of judicial economy and the ‘“‘strong judicial policy’”’ recognized in Heck
itself ‘“‘against the creation of two conflicting resolutions arising out of the same or
identical transaction.’”’ [Citation.] [¶] In light of the fact that Heck and California law
express similar concerns about judicial economy and the avoidance of conflicting
resolutions, we conclude that the [Heck] analysis in the preceding sections applies
equally to Yount’s common law claim for battery.” (Yount, supra, at p. 902, italics
added.)
       It is undisputed that Fetters’s conviction and/or sentence was not “reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such a determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” (Heck, supra, 512 U.S. at p. 487.) However, as a result of
Fetters’s successful completion of his informal probation sentence, the petition was
dismissed. As a result, we need to determine (a) whether this result constitutes a
favorable termination under California law and (b) whether federal courts regard pretrial
criminal diversion or informal probation programs similar to what Fetters participated in
as favorable terminations sufficient to negate the Heck bar.
              2.     Under California law, a favorable termination of a criminal
proceeding must indicate the plaintiff’s innocence
       California courts have consistently held that favorable termination in the context
of a malicious prosecution action requires a plaintiff to show more than a mere dismissal
of the underlying action; he or she must show facts establishing his or her innocence. For
example, in Pattiz v. Minye (1998) 61 Cal.App.4th 822, the court explained that “[t]he
element of ‘favorable termination’ requires a termination reflecting the merits of the
action and plaintiff’s innocence of the misconduct. [Citation.] ‘“The theory underlying
the requirement of favorable termination is that it tends to indicate the innocence of the
accused. . . .” [Citation.]’ [Citation.] ‘Where a proceeding is terminated other than on
the merits, the reasons underlying the termination must be examined to see if the
termination reflects the opinion of either the court or the prosecuting party that the action

                                             21
would not succeed.’ [Citation.] [¶] Thus plaintiff must establish more than that he
prevailed in the underlying action. [Citation.] He must prove a termination that reflects
on his innocence. [Citation.] If the resolution of the underlying action leaves some doubt
concerning plaintiff’s innocence or liability, it is not a favorable termination sufficient to
allow a cause of action for malicious prosecution.” (Id. at p. 827, italics added.) In other
words, for a malicious prosecution claim to proceed, the underlying action must reflect
“‘“the opinion of someone, either the trial court or the prosecuting party, that the action
lacked merit or if pursued would result in a decision in favor of the defendant.’”
[Citation] [¶] . . . [¶] The test is whether or not the termination tends to indicate the
innocence of the defendant or simply involves technical, procedural or other reasons that
are not inconsistent with the defendant’s guilt. [Citations.] The focus is not on the
malicious prosecution plaintiff’s opinion of his innocence, but on the opinion of the
dismissing party.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 881.)
       The favorable termination requirement from malicious prosecution actions has
been applied by California courts to section 1983 claims. In Susag, supra, 94
Cal.App.4th 1401, Cory Susag was tried and convicted of resisting an officer during an
incident with the Orange County Sheriff’s Department. (Id. at p. 1406.) After he was
convicted, Susag filed a lawsuit against the deputies and the Sherriff’s department,
alleging a section 1983 claims and various state law claims (assault, battery, use of
excessive force, false imprisonment, and intentional infliction of emotional distress).
Susag’s lawsuit arose from the same incident with the Orange County Sheriff for which
he was convicted. (Susag, at p. 1407.) The trial court granted summary judgment for the
defendants and the Court of Appeal affirmed concluding that Susag’s section 1983 claim,
as well as his state law claims, were “precluded by his standing conviction for resisting or
obstructing a peace officer.” (Susag, at pp. 1412–1413.) As the court in Susag
explained, the termination of the underlying proceeding “must ‘reflect[ ] on the merits of
the action and the plaintiff’s innocence of the misconduct alleged. [Citations.] When the
proceeding terminates other than on the merits, the court must examine the reasons for
termination to see if the disposition reflects the opinion of the court or the prosecuting

                                              22
party that the action would not succeed. If resolution of the underlying action leaves a
residue of doubt about the plaintiff’s innocence or liability, it is not a favorable
termination. . . .’” (Id. at p. 1411, italics added.)
       The requirement that the underlying criminal action be resolved in such a way as
to indicate the section 1983 plaintiff’s innocence was recently considered in Lujano v.
County of Santa Barbara (2010) 190 Cal.App.4th 801 (Lujano). Lujano is of particular
significance here because it concerns the resolution of a criminal charge through informal
probation. In that case, the plaintiff was arrested for obstructing a police investigation.
(Id. at p. 804.) The charge was subsequently resolved before a petition was even filed by
the plaintiff’s agreement to six months informal probation under Welfare and Institutions
Code section 654. (Lujano, at pp. 805, 807.) After successfully completing her
probation, the plaintiff in Lujano brought a section 1983 action against the deputies and
the county, among others. The trial court granted summary judgment to the defendants
and the Court of Appeal affirmed. Noting that a favorable termination under California
law requires a strong indication of the plaintiff’s innocence, the court in Lujano found
that acceptance of informal probation was “not a favorable termination allowing for civil
tort liability.” (Lujano, at p. 808.) The court explained as follows: “Lujano accepted
section 654 management. In doing so, she consented to participate in counseling or
education programs as well as, inter alia, temporary placement in shelter care facilities
should that be merited. [Citation.] Moreover, successful completion of the specific
program or programs delineated under section 654 would result in a bar to further
prosecution for the offense. [Citations.] Having elected to proceed under section 654,
having submitted to the power of the state and its programs for counseling and
education, and having obtained a shield to further prosecution upon successful
completion of the program, Lujano may not now complain that she is barred from
seeking civil redress under section 1983. Her option was to deny her culpability and put
the state to its proof. [Citation.] What she may not do is take advantage of the leniency
of the state and thereafter pursue a civil claim for damages.” (Id. at p. 809.)


                                               23
       If the plaintiff in Lujano, supra, 190 Cal.App.4th 801, was prohibited by Heck,
supra, 512 U.S. 477 from bringing her section 1983 claims even though a criminal
petition was never filed against her (and correspondingly she was never convicted or
even forced to enter a plea), then it logically and fairly follows that Fetters, who also
accepted the leniency of the state10 but only after admitting the allegations of the petition
filed against him, is precluded from exploiting that leniency as legal vindication. To
paraphrase Yount, supra, 43 Cal.4th at p. 897, because Fetters obtained substantial benefit
from his “admits” plea, it would be anomalous to construe Fetters’s plea and informal
probation sentence broadly as adequate resolution for the criminal law charges against
him “but then, once he had obtained the benefits of [that] plea, to turn around and
construe the outcome of the criminal proceeding narrowly so as to permit him to
prosecute a section 1983 claim arising out of the same [exact events].”
       As discussed in more detail in the next section, by holding the criminal defendant
and subsequent section 1983 plaintiff accountable for her choices—both those choices
that landed her in the criminal justice system and those that allowed her to escape from
that system with leniency and without the risk and expense of a trial on the merits—the
court in Lujano, supra, 190 Cal.App.4th 801 effectively adopted the reasoning and logic
underlying decisions by federal courts holding that informal resolution/pretrial diversion
programs should not be considered a favorable termination of a criminal proceedings.
              3.     Federal courts do not regard the informal resolution of a criminal
proceeding as necessarily a favorable termination
       A number of states, like California, allow for the resolution of various criminal
charges through various informal mechanisms, such as probation and other pretrial
diversion programs. Federal courts, both before and after Heck, supra, 512 U.S. 477,
have evaluated such programs and have held that participation in them does not constitute
a favorable termination that would permit a defendant to bring a subsequent section 1983

       10 Penal Code section 417.4 provides for a punishment of “not less than 30 days”
in county jail. Instead of jail time or, as the prosecutor preferred, becoming a ward of the
court, Fetters merely received six months informal probation.

                                              24
claim. As discussed below, these courts do not regard a defendant’s participation in these
programs as akin to being acquitted or found innocent.
          For example, in Singleton v. City of New York (2d Cir. 1980) 632 F.2d 185
(Singleton), the Court of Appeals for the Second Circuit considered a mechanism under
New York Criminal Procedure “‘adjournment in contemplation of dismissal.’” Under an
adjournment in contemplation of dismissal, after the accused serves a probationary
period, the charges are dismissed. The Singleton court likened the adjournment in
contemplation of dismissal to a consent decree, reasoning that both leave open the
question of guilt. (Id. at p. 193.) The court, however, refused to equate dismissal with
acquittal. (Ibid.) The court found significance in the probationary period, calling it an
unfavorable “period of observation . . . to determine whether the prosecutor’s
acquiescence in the adjournment was justified.” (Id. at p. 194.) Regarding expungement
of the records related to the charge, the court found this erased “the stigma that might
otherwise be borne by the defendant,” but did not constitute a finding of “‘not guilty.’”
(Ibid.)
          Similarly, in Roesch v. Otarola (2d Cir. 1992) 980 F.2d 850 (Roesch), the Second
Circuit held that dismissal of a Connecticut criminal prosecution under its “accelerated
pretrial rehabilitation” program was not sufficiently favorable to support a section 1983
malicious prosecution claim. (Roesch, at p. 853.) In that case, the plaintiff was arrested
for, among other things, breach of the peace and harassment. (Id. at p. 852.) After
completing a two-year probationary period, the charges against the plaintiff were
dismissed. (Ibid.) The district court dismissed the plaintiff’s section 1983 claim and the
Court of Appeals affirmed, reasoning that permitting “a criminal defendant to maintain a
section 1983 action after taking advantage of accelerated rehabilitation, the program,
intended to give first-time offenders a second chance, would become less desirable for
the State to retain and less desirable for the courts to use because the savings in resources
from dismissing the criminal proceeding would be consumed in resolving the
constitutional claims.” (Roesch, at p. 853.)


                                               25
       In DeLeon v. City of Corpus Christi (5th Cir. 2007) 488 F.3d 649, the plaintiff was
charged with aggravated assault of a police officer, pleaded guilty, and received a
deferred adjudication; the plaintiff then filed a section 1983 claim against the arresting
officer. (DeLeon, at p. 651.) The plaintiff argued that his civil rights suit was not barred
by Heck, supra, 512 U.S. 477 because under Texas’s deferred adjudication program there
is no conviction or finding of guilt—that is, “if he successfully completes his deferred
adjudication period, the charge against him will be dismissed.” (DeLeon, at pp. 652–
653.) The Fifth Circuit affirmed the dismissal of the section 1983 claim, holding the “a
deferred adjudication order is a conviction for the purposes of Heck’s favorable
termination rule.” (Id. at p. 656, italics added.) The DeLeon court explained that
“although there is no finding of guilt, there is at least a judicial finding that the evidence
substantiates the defendant’s guilt, followed by conditions of probation that may include
a fine and incarceration.” (Ibid.)
       In Gilles v. Davis (3d Cir. 2005) 427 F.3d 197, the Third Circuit found that the
section 1983 claims of a plaintiff whose criminal charges had been resolved by
participation in Pennsylvania’s Accelerated Rehabilitation Disposition (ARD) program
were barred by Heck, supra, 512 U.S. 477. (Gilles, at pp. 210–211.) In reaching its
decision, the court in Gilles reasoned that although “[t]he ARD program is a court-
supervised compromise,” it nevertheless “imposes several burdens upon the criminal
defendant not consistent with innocence,” including among other things a probationary
term. (Id. at p. 211, italics added.) Accordingly, the court held that even though
“successful completion of the ARD program results in dismissal of the criminal charge
and expungement of the arrest record,” it is “not a favorable termination under Heck.”
(Id. at p. 211 & fn.13.)11



       11 The decision in Gilles v. Davis, supra, 427 F.3d 197 was in accord with prior
decisions interpreting the ADR program. (See Nardini v. Hackett (E.D.Pa. Sept.19, 2001,
No. 00 CV 5038) 2001 WL 1175130, at p. *4 [holding ARD program “not sufficiently
favorable to satisfy the common law requirements for malicious prosecution”]; Davis v.
Chubb/Pac. Indem. Group (E.D.Pa. 1980) 493 F.Supp. 89, 91–92 [“an A.R.D.
                                              26
       Federal district courts have construed similar pretrial diversion/informal probation
programs in other states and have found them to exclude subsequent section 1983 claims
under Heck, supra, 512 U.S. 477. For example, in Bates v. McKenna, (W.D.La. Aug. 13,
2012, No. 11–1395), 2012 WL 3309381, the court held that a plaintiff who voluntarily
participated in and completed a pretrial intervention program after being arrested for
interference with a police officer and resisting an officer was barred from raising a
section 1983 claim for false arrest against those officers. The court in Bates noted that
Heck’s favorable termination rule “is also applicable to pretrial programs such as pretrial
diversion agreements, accelerated rehabilitation disposition programs, deferred
adjudication orders, and pretrial intervention programs, wherein charges are dismissed
only after the criminal defendant successfully completes a probationary period.” (Bates,
at p. *4.) The court concluded that the plaintiff’s participation in the pretrial intervention
program, which resulted in the dismissal of the plaintiff’s criminal charges “after the
successful completion of a probationary period,” was a conviction for the purposes of
Heck. (Bates, at pp. *4–5.) Similar conclusions have been reached with respect to
pretrial diversion programs in Massachusetts and Kentucky. (Cardoso v. City of
Brockton (D.Mass. 2015) 62 F.Supp.3d 185, 186; Everage v. Whitaker (E.D.Ky. Mar. 27,
2006, No. 05-CV-115-KKC) 2006 WL 782744 at p. *6.)12


disposition . . . [is not] a favorable termination” because it is not “‘consistent with
innocence’”].)
       12 Federal courts have also ruled similarly with regard to federal pretrial diversion
programs. In Cissell v. Hanover Ins. Co. (E.D.Ky. 1986) 647 F.Supp. 757, the court
granted summary judgment to state police officers who were sued under section 1983 for
malicious prosecution because the plaintiff’s voluntary participation in the federal pretrial
diversion program was not a favorable termination of plaintiff’s underlying criminal
proceeding. The court, adopting the reasoning of Singleton, supra, 632 F.2d 185,
explained: “‘To hold otherwise would be to allow a criminal defendant to side-step
criminal prosecution, to forego litigation of his guilt or innocence, to benefit from a
rehabilitative program, and then to turn around and to use this process which was
designed to help him as a sword against the state in a civil action.’” (Cissell, at p. 758,
quoting Lindes v. Sutter (D.N.J. 1985) 621 F.Supp. 1197, 1201–1202). Similarly, in
Taylor v. Gregg (5th Cir.1994) 36 F.3d 453 (Taylor), the Fifth Circuit affirmed summary
                                              27
         Fetters has not directed us to any California state court cases holding that
participation in a pretrial diversion/informal probation program in exchange for an
eventual dismissal of the charges constitutes a favorable termination under Heck, supra,
512 U.S. 477 or any other legal doctrine.13 He has, however, directed us to several
federal cases holding that participation in pretrial diversion/informal probation programs
did not, under Heck, bar a subsequent section 1983 claim. We are not persuaded by those
cases.
         For example, one of the cases upon which Fetters relies is McClish v. Nugent (11th
Cir. 2007) 483 F.3d 1231. In that case, the section 1983 plaintiff was arrested for
interfering with the arrest of another. (McClish, at p. 1251.) The charge was eventually
dismissed pursuant to Florida’s pretrial intervention program (PTI). (Ibid.) The district

judgment against plaintiffs alleging a section 1983 claim. The court in Taylor adopted
the reasoning of Singleton and Roesch in holding that a federal “pre-trial diversion
agreement” was not a favorable termination. The court in Taylor explained that the
plaintiffs’ section 1983 claims were barred because by entering into the pretrial program
they were “effectively foregoing their potential [section 1983 claim] in exchange for
conditional dismissal of their criminal charges.” (Taylor, at p. 456.)
         13 Fetters
                  has identified several California decisions that involve the withdrawal of
a plea, but none of those cases (People v. Scheller (2006) 136 Cal.App.4th 1143; People
v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256; People v. Haro (2013) 221
Cal.App.4th 718; People v. Uhleman (1973) 9 Cal.3d 662) involve the analysis of a
pretrial diversion program under Heck, supra, 512 U.S. 477. Moreover, even leaving
aside the absence of a pretrial diversion program, all of these cases are either factually
inapposite or otherwise unhelpful to Fetters’s cause. For example, in Scheller, supra,
136 Cal.App.4th 1143, the defendant after entering a guilty plea and then withdrawing
that plea, was convicted in a jury trial. (Id. at pp. 1146–1147.) In People v. Superior
Court (Garcia), the court held that when a defendant withdraws his guilty plea both the
defendant and the prosecutor are returned to the status quo ante, allowing the prosecutor
to not only restore counts dismissed pursuant to a plea agreement but also augment those
restored counts by alleging special circumstances to warrant an even harsher punishment.
(Id. at pp. 258–259.) The one California case upon which Fetters relies that does involve
a dismissed juvenile petition, Haro, supra, 221 Cal.App.4th 718, says nothing about the
consequences of a dismissed criminal action against a minor in a subsequent civil suit for
damages arising out of the conduct that led to the arrest; Haro simply holds that a
previously dismissed juvenile petition cannot not be used as a strike under the Three
Strikes law in a subsequent criminal proceeding. (Id. at pp. 721–724.)

                                               28
court, in reliance on decisions by the Second, Third and Fifth Circuits (Roesch, supra,
980 F.2d 850, Gilles, supra, 427 F.3d 197; Taylor, supra, 36 F.3d 453) concluded that the
plaintiff’s “‘participation in PTI . . . is not a termination in his favor and therefore, he is
barred from bringing a § 1983 claim for false arrest.’” (McClish, at p. 1251.) The
McClish court reversed, because the plaintiff “was never convicted of any crime.” (Ibid.)
The McClish court, however, reached its decision without ever discussing the decisions
by the Second, Third, and Fifth Circuits relied upon by the district court, decisions in
which the plaintiffs also were never formally convicted of any crime, but were found for
purposes of the Heck inquiry to have been convicted due to their participation in the
pretrial diversion program. As a result, the court in McClish never addressed the
concerns that the courts in those cases and in Lujano, supra, 190 Cal.App.4th 801, found
so important: that allowing a criminal defendant to use the leniency of the state’s pretrial
diversion program as both a shield (no risk of trial or further prosecution upon successful
completion of pretrial program) and a sword (able to seek damages against the state in a
subsequent civil suit) makes little sense from a practical or jurisprudential perspective.
       Not only is the analysis in McClish, supra, 483 F.3d 1231, wanting in this regard,
but the facts of that case are readily distinguishable from the case at bar. Here, in
contrast to McClish, there was a conviction and a sentence. Fetters entered a plea
equivalent to a guilty plea. As a result of this plea, he was sentenced to six months of
informal probation. In brief, there was no indication in the instant criminal proceeding
of Fetters’s innocence, where there may have been one in McClish.
       Fetters also relies upon Butler v. Compton (10th Cir. 2007) 482 F.3d 1277. In
Butler, as in McClish, supra, 483 F.3d 1231, there is no discussion of the public policy
concerns discussed in Lujano, supra, 190 Cal.App.4th 801. Moreover, the facts in Butler
are readily distinguishable from those at issue here. In Butler, the plaintiff brought a
section 1983 suit alleging various Fourth Amendment violations stemming from his
arrest for burglary. The charges against the plaintiff, however, were later dismissed as
part of a plea agreement in which he agreed to plead guilty to three unrelated burglary
charges stemming from a completely different incident. (Id. at pp. 1279–1280.) In

                                               29
holding that Heck, supra, 512 U.S. 477 did not bar plaintiff’s section 1983 action, the
court in Butler emphasized that plaintiff did “not challenge any conduct relating to his
conviction on the three burglary charges to which he pled guilty,” but that “[h]is sole
challenge is to the constitutionality of . . . conduct during his arrest for the burglary
charges that were dismissed.” (Butler, at p. 1280.) Accordingly, the court found that
“[t]here is no related underlying conviction therefore that could be invalidated by
[plaintiff’s] § 1983 action.” (Id. at p. 1280.) In contrast, the prosecutor in Fetters’s
criminal proceeding did not agree to dismiss the charges against Fetters upon his
successful completion of probation in exchange for Fetters’s agreement to plead guilty to
charges arising out of a separate and wholly unrelated incident. Instead, Fetters accepted
a plea agreement that allowed him to resolve the charges that stemmed from the arrest
that is the subject of his section 1983 claim. In other words, Fetters’s conviction and
sentence, unlike the one in Butler, arise out of the same incident that led to the original
charges. In short, Fetters’s reliance on Butler is misplaced because that case is neither
apposite nor instructive.
       Fetters also relies on two district court decisions, Magana, supra, 835 F.Supp.2d
906; and Medeiros v. Clark (E.D.Cal. 2010) 713 F.Supp.2d 1043. In each instance, the
district court ruled that the section 1983 claims were not barred by Heck, supra, 512 U.S.
477 even though the plaintiffs had participated in pretrial diversion programs. In both
cases, the district court found that Heck did not bar the plaintiffs’ civil rights claims
because there was no conviction or even any admission of wrongdoing: “Magna
appeared in juvenile court . . . and denied all charges and allegations” (Magana, at
p. 908, italics added); “[Medeiros] refused to plead guilty to any of the frivolous charges”
(Medeiros, at p. 1046, italics added). Here, in contrast to both of these cases, Fetters
“admit[ted]” the charges alleged against him.
       Both Magana and Medeiros also found that Heck did not apply because the
plaintiff in each case did not have “recourse to the habeas statute.” (Magana, supra, 835
F.Supp.2d at p. 911; see Medeiros, supra, 713 F.Supp.2d at pp. 1055–1056 [same].)
Both courts based their decision on a Ninth Circuit opinion, Nonnette v. Small (9th Cir.

                                              30
2002) 316 F.3d 872 (Nonnette). (Magana, at p. 912; Medeiros, at pp. 1055–1056.)
Based on these cases, Fetters argues that because he “was not in custody during the Heck
hearing, and habeas relief was unavailable, Heck did not bar his [section] 1983 suit.” We
are unconvinced by Fetters’s argument.
       First, the conclusion by Nonnette, supra, 316 F.3d 872, that Heck, supra, 512 U.S.
477 does not bar a claim when the plaintiff had no habeas remedy available is based, not
on a definitive holding by a majority of the United States Supreme Court ruling in one
case, but on a combination of concurring and dissenting opinions in two separate cases.
(See Nonnette, supra, at pp. 876–877; see also Heck, at pp. 498–500 (conc. opn. of
Souter, J.); Spencer v. Kemna (1998) 523 U.S. 1, 19–21 [118 S.Ct. 978, 140 L.Ed.2d 43]
(conc. opn. of Souter, J., joined by O’Connor, Ginsburg, and Breyer, JJ.); id. at p. 21
(conc. opn. of Ginsburg, J.); id. at p. 25, fn. 8 (dis. opn. of Stevens, J.).) Second,
subsequent decisions by the Ninth Circuit have sharply circumscribed Nonnette. (See
Guerrero v. Gates (9th Cir. 2006) 442 F.3d 697, 704–705.) Third, given the patchwork
nature of the basis for its holding, the Nonnette decision has not been universally
endorsed by other circuits. In fact, the First, Third, Fifth, Sixth, and Eighth Circuits have
all concluded that the language in Heck makes it clear that where favorable termination
cannot be shown, a petitioner is barred regardless of whether a habeas remedy is or ever
was available. (See White v. Gittens (1st Cir. 1997) 121 F.3d 803, 806; Williams v.
Consovoy (3d Cir. 2006) 453 F.3d 173, 177–178; Gilles, supra, 427 F.3d at pp. 209–210;
Randell v. Johnson (5th Cir. 2000) 227 F.3d 300, 301; Schilling v. White (6th Cir. 1995)
58 F.3d 1081, 1086; Entzi v. Redmann (8th Cir. 2007) 485 F.3d 998, 1003.) Finally, we
are neither bound nor inclined to accept Fetters’s invitation to follow Nonnette and cases
that share its reasoning, because, although the United States Supreme Court has
acknowledged that the circuits hold contrasting views regarding Heck’s application to
section 1983 petitioners not in custody, it has chosen not to provide any guidance. (See
Muhammad v. Close (2004) 540 U.S. 749, 752, fn. 2 [124 S.Ct. 1303, 158 L.Ed.2d 32].)
Fetters has obtained the justice to which he is entitled.


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                                   DISPOSITION
      The judgment and the attorney fees order are reversed. The parties are to bear
their own costs on appeal.
      CERTIFIED FOR PUBLICATION.


                                        JOHNSON, J.


We concur:


             ROTHSCHILD, P. J.


             CHANEY, J.




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