Court Knocks Down Coach's Bid for Factual Innocence Finding

Justice Henry Needham Jr. concluded that while a judge found no probable cause in a case against an alleged molester, that's not the same as saying he's certainly innocent.

Scott Graham

2013-02-27 05:56:06 PM

SAN FRANCISCO — The First District Court of Appeal on Wednesday rejected an East Bay soccer coach's bid to be declared factually innocent of child molestation charges, saying a judge's finding of no probable cause was not tantamount to a finding of innocence.

Justice Henry Needham Jr. acknowledged for a unanimous panel that the definition of probable cause for purposes of a preliminary hearing "appears to mirror the definition of 'reasonable cause' for purposes of a factual innocence petition under [Penal Code] §851.8.

"But it does not follow that an order discharging a defendant for lack of probable cause means factual innocence has been demonstrated," Needham concluded, because the burden of proof falls on the accused when petitioning for factual innocence.

An attorney for Bejan Esmaili said the decision conflicts with a Fifth District ruling and that he would petition for California Supreme Court review.

In People v. Esmaili, a 15-year-old girl known as Jane Doe alleged that Esmaili had molested her four times between 2004 and 2007. Esmaili has maintained his innocence and said the girl is making it up.

Alameda County Superior Court Judge Armando Cuellar Jr. threw out the case following a 2011 preliminary hearing, saying the girl gave materially inconsistent and sometimes noncredible testimony. "I'm not saying that she is deliberately lying, but I do feel that a lot of details of this incident are confused in her mind," Cuellar said at the time.

But he rejected Esmaili's subsequent petition for factual innocence, saying it was possible the girl was telling the truth, and that the standard of proof for factual innocence is "incredibly high," requiring that he hold "no doubt whatsoever" about guilt.

Esmaili's attorney, Andrew Dhuey of Berkeley, argued to the court last week that the language of §851.8 tracks probable cause virtually word for word, and since there was no other evidence of Esmaili's guilt, he was entitled to the innocence finding.

Needham disagreed, saying the differing burdens of proof change the equation. "The magistrate may determine that the prosecution has fallen short of carrying its burden at the preliminary hearing, but that failure of proof does not mean that the defendant has automatically carried his initial burden of demonstrating his factual innocence," he wrote.

Ruling otherwise, Needham added, would violate public policy, especially in a case like Esmaili's where the trial judge had perceived a possibility of guilt, albeit not beyond a reasonable doubt.

"Given the absence of any factual finding that Doe's testimony was untruthful, we cannot say that no person of ordinary care and prudence would believe or strongly suspect appellant was guilty of the charged offense," Needham wrote.

Dhuey continued to assert Esmaili's innocence in an email Wednesday. "The First Appellate District has set the bar impossibly high for those who are wrongly charged to clear their names," he said, adding that the decision conflicts with the Fifth District's 1985 ruling in People v. Scott M.

Deputy attorney general Bruce Ortega argued the case for the state.