Recent Case Holding: People v. Bleich (denial of factual innocence motion)

Oct 13, 2009

The dismissal of terrorist threat and stalking charges against a Southern California pharmacist did not warrant a finding of factual innocence, the Fourth District Court of Appeal ruled Friday.

The Court rejected Ida Bleich’s request for the finding, concluding that other evidence did not completely exonerate her, but instead provided a strong basis from which a reasonable person would believe she committed the offenses.

An employee at the CVS Pharmacy accused his supervisor (defendant Bleich) of leaving a profanity-laden message on his voicemail in the middle of the night. The recorded call apparently threatened to slit the employee’s hroat and put him in a body bag, among other things. An officer with the El Cajon Police Department made a copy of the message on a cassette-recording device, and police confronted Bleich at the pharmacy where she worked when another CVS employee—listening to the message on the cell phone—identified her as the caller and corroborated the allegations of harassment.

According to police, Bleich specifically denied the allegations. Officers arrested Bleich, who told them that she did not have a cell phone with her, but police discovered later that her son came to the pharmacy after the arrest and retrieved a cell phone. When contacted, the son denied having the phone and avoided further calls.

Bleich was charged with making a terrorist threat and stalking. When the recording was played during a preliminary hearing, the CVS employee who had previously identified Bleich described the voice as different from what she had heard, and a police officer said the recording was “not the way the voice sounded” on the cell phone. Accordingly, San Diego Superior Court Judge William J. McGrath concluded that the recording did not sound like Bleich and—finding insufficient evidence to bind her over for trial—dismissed the charges.

Bleich then petitioned for a finding of factual innocence and for her records to be sealed and destroyed under Penal Code Sec. 851.8. The statute allows petitioners who show that the state should never have subjected them to the compulsion of the criminal law, because no objective factors justified official action, to purge the official records of any reference to such action.
Noting that he was not convinced it was Bleich on the recording, the judge said that the circumstances—particularly Bleich’s statements to police and her initial denial related to the cell phone retrieved by her son—led him “to think that there might be reasonable suspicion that she had some involvement in the making of this telephone call as an accessory or otherwise.”

On Bleich’s appeal, Justice Patricia D. Benke agreed, rejecting Bleich’s argument that the facts showed that no reasonable cause existed to believe that she committed the offenses charged.
Benke wrote that McGrath’s factual determination that the voice on the cassette-recording was not Bleich was not alone sufficient to sustain Bleich’s burden of proof to show factual innocence, and that the prosecution’s failure to present an adequate recording was an evidentiary failure that contributed significantly to the dismissal.
See People v. Bleich, D053808.