Filed 10/24/17 P. v. Redmond CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Andrew Redmond appeals from an order denying his petition for a certificate of rehabilitation under Penal Code section 4852.01. He contends the trial court abused its discretion in denying the petition. We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY

In January 2009, Redmond was convicted of two counts of misdemeanor indecent exposure after entering a negotiated plea. (Pen. Code, § 314.1.)[1] He was placed on three years of probation. In February 2012, Redmond successfully petitioned for the dismissal of the case pursuant to section 1203.4. In April 2016, he filed a petition for a certificate of rehabilitation, which we discuss at length post. The court denied the petition, and this appeal followed.

II. DISCUSSION

Sections 4852.01 et seq. govern the procedure for obtaining a certificate of rehabilitation, available to certain convicted felons who have successfully completed their sentences and undergone an additional period of rehabilitation in the state. (People v. Ansell (2001) 25 Cal.4th 868, 875 (Ansell).) Subdivision (b) of section 4852.01 provides: “A person convicted of a felony or a person who is convicted of a misdemeanor violation of any sex offense specified in Section 290, the accusatory pleading of which has been dismissed pursuant to Section 1203.4, may file a petition for certificate of rehabilitation and pardon pursuant to the provisions of this chapter if the petitioner has not been incarcerated in a prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading, is not on probation for the commission of any other felony, and the petitioner presents satisfactory evidence of five years’ residence in this state prior to the filing of the petition.” Section 4852.05 requires that, during the period of rehabilitation, the person “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.” (§ 4852.05; see Ansell, supra, at p. 875.)

Section 4852.01 and section 4852.05 merely specify who may file a petition for a certificate of rehabilitation. (See § 4852.06.) For the petition to be granted, the court must find that the petitioner has actually been rehabilitated. (Ansell, supra, 25 Cal.4th at pp. 875– 876 [“the superior court must find that the petitioner is both rehabilitated and fit to exercise the rights and privileges lost by reason of his conviction”].) Specifically, section 4852.13, subdivision (a) provides: “if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner.” (Italics added.) As our Supreme Court has admonished, the “standards for determining whether rehabilitation has occurred are high,” and “there is no circumstance under which the statutory scheme requires or guarantees issuance of a certificate of rehabilitation.” (Ansell, at pp. 887–888.)

We review the denial of a petition for a certificate of rehabilitation for an abuse of discretion that results in a miscarriage of justice. (People v. Blocker (2010) 190 Cal.App.4th 438, 442; People v. Lockwood (1998) 66 Cal.App.4th 222, 226–227.)

B. Redmond’s Petition and Court’s Ruling

In his petition for a certificate of rehabilitation, Redmond alleged that he had resided in the state without interruption for the prior five years; in January 2009 he was convicted of a misdemeanor violation of section 314.1 and placed on probation for three years; in February 2012, he obtained relief under section 1203.4 and the case was dismissed; he sought therapy before entering his plea and was continuing with the therapy; he obtained letters from his original therapist and current therapist documenting his positive progress; and he lived an honest and upright life. Attached to his petition were letters from a friend, his former and current therapists, and a psychologist discussing the progress he had made since his conviction.

The prosecution opposed Redmond’s petition, opining that “the circumstances of the underlying offenses here are particularly disturbing,” observing “the repeated nature of the defendant’s inexcusable conduct against the same victims,” and asserting that Redmond “continues to pose a threat to others of committing further 290 crimes such that the Court should deny the certificate.”

Redmond filed a reply, arguing that he had met the statutory requirements for obtaining the certificate of rehabilitation, and that there was no evidence he was likely to reoffend.

At a hearing on August 22, 2016, the court found that Redmond had failed to demonstrate “[t]hat he does not present a future threat, [that] he’s fully rehabilitated.” The court noted that the attachments Redmond provided in support of his petition “were fairly neutral.” The court observed: “Well, I see that Mr. Redmond has led a law-abiding life and that he is taking great efforts to address his issues. I am concerned, though, that the defendant pled guilty to offenses which are disturbing in nature. Pursuant to a negotiated disposition, he agreed that he would be subject to registration, and he is still subject to registration. [¶] I see that he continues to seek psychiatric assistance in addressing his issues, and that causes some concerns as well in that I am not convinced that he is completely rehabilitated. There is nothing that has been presented to me that shows that he is rehabilitated. [¶] He may have met the threshold requirements, but, based on the record that is before me, I am not prepared to grant the certificate of rehabilitation. So the petition is denied.” (Italics added.)

C. Analysis

Although Redmond met the time and residency requirements of section 4852.03 and alleged he had met the “honest and upright life” requirement of section 4852.05, the court did not abuse its discretion in concluding that Redmond failed to demonstrate his rehabilitation (§ 4852.13). The court was attentive to the letters Redmond submitted with his petition and observed at the hearing that none of them stated he was rehabilitated. Indeed, while the letters noted Redmond’s laudatory attendance, engagement and progress in treatment, his therapists anticipated further treatment and progress and did not opine that he had reached the point of complete rehabilitation or presented no likelihood of reoffense.

Redmond nonetheless contends the court erred because, on the record before it, the court could not have determined that Redmond was likely to commit new sex offenses. He refers us to Lewis v. Superior Court (2008) 169 Cal.App.4th 70 (Lewis), in which the court concluded that a defendant’s original conviction would not itself support a finding that he was likely to commit new sex offenses 20 years later, where he had not committed a similar crime since. (Id. at p. 79.)

Lewis, however, is plainly inapposite. First, Lewis had nothing to do with a court’s discretionary determination of rehabilitation under section 4852.01, but instead addressed whether the court could retroactively impose a sex offender registration order under section 290.006 when a previous conviction was determined not to be a valid basis for mandatory sex offender registration under section 290. (Lewis, supra, 169 Cal.App.4th at pp. 73, 78.) Second, Lewis indicated that the likelihood of reoffending was a consideration in deciding whether to order registration, but did not hold that a court must make a specific finding in that regard. Third, in Lewis the defendant had perpetrated his crime 20 years earlier—as compared to the roughly eight years in Redmond’s case—and even then did not hold that two decades of crime-free living required the trial court to find no likelihood of re-offense if the evidence presented other concerns to the court. Here, the court considered not just the fact of Redmond’s original conviction, but all of the evidence presented, and its conclusion was well within its statutory discretion.

Redmond next contends the court abused its discretion by denying his request for a certificate based on the “disturbing” nature of the offense and because he “agreed” to registration. He argues it is improper to rely on the nature of the offense, because the nature of the offense is immutable – a “disturbing” offense will always remain a “disturbing” offense – yet the law provides that a defendant might someday obtain a certificate of rehabilitation. And he urges that his agreement to registration and admission of ongoing therapy does not show he was likely to commit more sex offenses.

Redmond misperceives the basis for the court’s order. Although the court noted the disturbing nature of Redmond’s crime, agreement to register, and ongoing therapy, the court based its decision not solely on these particular facts, but on Redmond’s overall failure to produce evidence that he was in fact rehabilitated. Indeed, after specifically noting the unpersuasive nature of the letters Redmond attached to his petition, the court stated: “There is nothing that has been presented to me that shows that he is rehabilitated.” (Italics added.)

Lastly, Redmond argues that the denial of a certificate of rehabilitation violated his Fourteenth Amendment due process rights, because the “[f]ailure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.” (People v. Penoli (1996) 46 Cal.App.4th 298, 306.) But here, the court did exercise its discretion within statutory bounds, and there is no indication Redmond was deprived of a fair hearing or otherwise denied due process.

III. DISPOSITION

The order is affirmed.

NEEDHAM, J.

We concur.

SIMONS, ACTING P.J.

BRUINIERS, J.