P. v. Offerman
Filed 7/18/13 P. v. Offerman CA2/6
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE
PEOPLE,
Plaintiff and Respondent,
v.
DONALD
MONROE OFFERMAN,
Defendant and Appellant.
2d Crim. No. B245259
(Super. Ct.
Nos. CR16764
CR16725, CR46459)
(Ventura
County)
Donald Monroe Offerman
appeals an order denying his petitions for a certificate of rehabilitation and
pardon, commonly known as a "certificate of rehabilitation." (Pen. Code, § 4852.03; see People v.
Blacker (2010) 190 Cal.App.4th 438, 440, fn. 2.)
court impliedly found that appellant had not demonstrated good moral
character over a sustained rehabilitation period but could refile the petitions
in 2015. We affirm. (§§ 4852.11; 4852.13, subd. (a); People v.
Failla (2006) 140 Cal.App.4th 1514, 1522.)
Procedural History
In 1981 appellant was
convicted of five counts of grand
theft-property (§ 487.1) and two counts of
numbers CR16725 and CR16764. Appellant was sentenced to five years state
prison, served part of the prison term, and was released on parole and returned
to custody multiple times before he was discharged from parole on November 25, 1988.
In 1999, appellant was
convicted by plea of battery on a peace officer
(§
243, subd. (c)) and sentenced to a four year prison sentence. (CR46459.)
Appellant served part of the prison term, was paroled and rearrested,
and scheduled for a December 24, 2004
parole release date.
MDO Commitment
On December 12, 2004, appellant was found to be a
(MDO; § 2962 et seq.) and committed to Atascadero
State Hospital
for treatment. The MDO commitment was
extended three times based on jury findings that appellant suffered from a
severe mental disorder that was not in remission and he was a substantial risk
of harm to other people.
name="_ftnref2" title="">[2] (§ 2972.)
Appellant was released from the MDO commitment on March 26, 2010.
Petitions For Certificate of
Rehabilitation
On January 13, 2012, appellant filed a petition for
criminal case. (§ 4852.01 et seq.) The petitions alleged that appellant was discharged
from parole on November 25, 1988,
in case numbers CR16725 and CR16764 (the grand theft and burglary
convictions) and discharged from parole
on June 8, 2006, in CR46459
(battery on officer conviction). The
Ventura County District Attorney opposed the petitions on the ground that the
statutory rehabilitation period had not passed (§ 4852.03, subds. (a)(3) &
(b)) and appellant had not demonstrated good moral character (§ 4852.05).
The trial court denied
the petitions based on the theory that the seven-year rehabilitation period
appellant was released from the MDO commitment.
"[I]f he's found to be a mentally disordered parolee and taken back
into custody into a state hospital setting and then released back into the
community on a civil commitment that doesn't expire until 2010, it seems he
still remains under the supervision of State parole and/or mental health
authorities."
Appellant brought a
motion for reconsideration. Denying the
motion, the trial court found that the petitions were filed "a few months
too soon" and appellant could refile the petitions in 2015.
Rehabilitation Period Start Date
Appellant contends that
the trial court erred in finding that the rehabilitation period did not
commence to run until 2010 when appellant was released from his MDO
commitment. The Attorney General agrees
that a MDO commitment does not delay the rehabilitation period start date. Section 4852.03, subdivision (a) provides
: "The period of rehabilitation
shall begin to run upon the discharge of the petitioner from custody due to his
or her completion of the term to which he or she was sentenced or upon his or
her release on parole or probation, whichever is sooner."
In Ayala v. Superior
Court (1983) 146 Cal.App.3d 938 we held that a mentally disordered sex
offender's (MDSO; former Welf. & Inst. Code, § 6300 et seq.) outpatient
status did not toll or change the rehabilitation period start date. (Id., at p. 942.) "The statutory scheme governing parolees
does not apply to MDSO outpatients. [Citation.]
The confinement of MDSO's is for the purpose of treatments not
punishment. [Citation.] " (
reason why, for the purposes of timely filing a petition for rehabilitation,
[Ayala] ought to be treated any differently than would have been the case had
be been given the bureaucratic label of a 'parolee' rather than an 'MDSO
outpatient.'" (
The same principle
applies to a MDO commitment which is a civil commitment for treatment, not
punishment. (See In re Qawi
(2004) 32 Cal.4th 1, 9 [MDO Act is not punitive but to provide treatment while
at same time protecting general public.)
Appellant served part of his four year prison sentence in CR46459 and
was discharged from parole on June 8,
2006 which is the rehabilitation period start date. (§4852.03, subd. (a); 3 Witkin
& Epstein, Cal.
Criminal Law, Punishment (4th ed. 2012) § 833, p. 1283.)
Good Moral Character
The Attorney General
argues that the judgment should be affirmed on the ground that appellant failed
to demonstrate "good moral character" during a sustained period of
rehabilitation. (§ 4852.13, subd.
(a).) A ruling or decision, itself
correct in law, will not be disturbed on appeal merely because given for a
wrong reason. (People v. Smithey (1999)
20 Cal.4th 936, 971-972.)
Section 4852.05 provides
that the person seeking a certification of rehabilitation "shall live an
honest and upright life, shall conduct himself or herself with sobriety and
industry, shall exhibit a good moral character, and shall conform to and obey
the laws of the land." The trial
court may deny a petition for certificate of rehabilitation where the
petitioner refuses to admit criminal culpability. (People v. Blocker (2010) 190
Cal.App.4th 438, 445 [refusal to admit guilt on underlying offenses of assault,
battery and molestation].) "
'[A]cknowledgement of guilt is a critical first step towards rehabilitation.'
[Citations.]" (
442.)
With respect to the 1999
conviction for battery on an officer, a California Highway Patrol officer tried
to escort appellant off the railroad tracks but appellant broke loose and
ran. The petitions state that appellant
is innocent, that appellant "did not touch him," and the officer
"tackled me and beat me."
Appellant's refusal to take responsibility for his actions reflects
poorly on his moral character and is grounds alone for denying the petitions
for a certificate of rehabilitation. (People
v. Blocker, supra, 190 Cal.App.4th at p. 445.)
Conclusion
At the hearing on the
motion for reconsideration, the trial court noted that appellant's severe
mental disorder was a contributing cause of the 1999 offense and an ongoing
concern. In the adjudicated MDO
recommitments, the juries found that the severe mental disorder was not in
remission and that appellant represented a substantial danger of physical harm
to others. (§ 2972, subd. (a).) The MDO findings were based on appellant's long
history of violence, his substance abuse, his dangerous behavior at Atascadero
State Hospital in which he kicked and spit on staff, and his refusal to follow
the treatment plan. (B217017,
B192769.)
Sections 4852.11 and 4852.12 provide that a
trial court, in ruling on a petition for certificate of rehabilitation, may
consider "all violations of law" regardless of whether it resulted in
an arrest or conviction, "the conduct of the petitioner during his period
of rehabilitation, . . . and any other information the court may deem necessary
in making its determination." (§ 4852.12, subd. a).) The decision to grant a certificate of
rehabilitation is discretionary and the standards for determining whether
rehabilitation has occurred are "high." (People v. Ansell, supra, 25 Cal.4th at p.,
887.) The trial court must "conduct
a thorough inquiry into the applicant's conduct and character from the time of
the underlying crimes through the time of the certificate of rehabilitation
proceeding. [Citations.]" (
Where an ex-felon denies
criminal culpability, has a long history of violence, and is a substantial
threat of harm to others, the trial court may deny the petition for certificate
of rehabilitation and order a new rehabilitation period. (§ 4852.11; People v. Failla,
140 Cal.App.4th 1522.) That
is the case here. In the words of the
trial court, appellant is "a few months too soon. I think he'll reach that
period soon enough. I think right now is
not enough time."
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Donald D. Coleman, Judge
Superior Court County of Ventura
______________________________
Gerald J. Miller, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney
General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code. Where the trial court finds that
the petitioner is both rehabilitated and fit to exercise the rights and
privileges lost by reason of his or her conviction, it may enter a certificate
of rehabilitation order recommending that the Governor grant a full
pardon. (§ 4852.13; People v. Ansell (2001)
25 Cal.4th 868, 875-876.)
name="_ftn2" title="">[2] We take judicial notice of this court's
unpublished opinions affirming the MDO commitment extension orders. (People v. Offerman (July 17, 2007, B192769),
People v. Offerman (April 15, 2008, B200645); People v. Offerman (March
15, 2010, B217017).)
