Adler v. Brown

Filed 6/19/07 Adler v. Brown CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In September 2004, Harold Joseph Adler was informed by the California Department of Justice that he is required to register as a sex offender based on a 1984 conviction for the distribution of child pornography that was dismissed pursuant to Penal Code[1] section 1203.4 following Adlers successful completion of probation. Adler thereupon successfully sought a declaration that he need not register for the commission of what is now a registerable offense but was not so when he committed the offense or when his conviction was expunged under section 1203.4. The superior court entered a permanent injunction prohibiting Adlers prosecution for failing to register. The Attorney General appealed, and during the pendency of the appeal there have been several amendments to the relevant provisions of the Penal Code. We conclude that under current section 290, subdivision (a)(2)(F), Adler is subject to the sex offender registration requirements unless and until he obtains a certificate of rehabilitation under section 290.5. This interpretation of the statute does not violate the ex post facto provisions of the state or federal Constitutions on the basis urged by Adler. Accordingly, we shall reverse the judgment.

Factual and Procedural History

In 1984, Adler pled guilty to 24 violations of the Penal Code, including five counts of distributing child pornography in violation of section 311.2, subdivision (b). Adler was placed on probation. In 1990, Adler completed the terms of his probation and successfully petitioned to be released from the penalties and disabilities of his convictions under section 1203.4.[2] At the time of Adlers conviction and the subsequent expungement, section 290 did not require registration for a violation of section 311.2, subdivision (b).

In 1995, section 290 was amended to make a violation of section 311.2, subdivision (b) a registerable offense. (Stats. 1994, ch. 867,  2.7, pp. 4390-4391 [Assem. Bill No. 2500].) Adler was not advised that this amendment applied to him until September 2004, when the California Department of Justice notified him that he was required to register as a sex offender within five working days or be subject to arrest.

Adler promptly filed the present action seeking declaratory relief and a permanent injunction. Adler acknowledged that if he had been subject to a registration requirement at the time his conviction was dismissed under section 1203.4, he would not have been relieved of the duty to register. ( 290.1, repealed by Stats. 2005, ch. 704,  2 [Assem. Bill No. 439].) He argued, however, that because his conviction was dismissed before section 290 was amended to add his offenses to those requiring registration, his conviction no longer existed when the statute was amended and that neither section 290 nor section 290.1 should be interpreted to revive his conviction. On cross-motions for summary judgment, the trial court agreed. The ruling was based in part on former section 290.1, which at the time the court ruled provided, Notwithstanding Section 1203.4 and except as provided in Section 290.5, a person who is convicted of a sex offense for which registration is required under Section 290 shall not be relieved from the duty to register under that section. (Stats. 1994, ch. 863, 2, p. 4309 [Assem. Bill No. 3456]; repealed by Stats. 2005, ch. 704,  2 [Assem. Bill No. 439].)[3] Pointing to the language a person who is convicted of a sex offense for which registration is required, the court concluded that section 290.1 did not apply to an expunged conviction of an offense that was not registerable at the time of expungement. The court explained that the Attorney Generals contrary interpretation would effectively rewrite section 290.1 to read, a person who was convicted of a sex offense for which registration would be required under Section 290 shall not be relieved of the duty to register. Moreover, the court felt that use of the word relieved, in the phrase shall not be relieved from the duty to register, indicated that the section did not apply if, when the offense became registerable, there was no conviction from which to be relieved because the conviction had already been expunged.

In January 2006, while this appeal was pending, section 290.1 was repealed. (Stats. 2005, ch. 704,  2 [Assem. Bill No. 439].) At the same time, section 290 was amended to add a provision explicitly imposing the duty to register upon [a]ny person required to register pursuant to any provision of this section, regardless of whether the persons conviction has been dismissed pursuant to Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5. ( 290, subd. (a)(2)(F).)[4] The legislative history confirms that this bill was not intended to change the law, but simply to reorganize the applicable provisions and eliminate potential confusion. The Senate Rules Committee analysis explains: Penal Code Section 1203.4 allows a defendant in certain circumstances to withdraw his or her guilty or no contest plea and have the matter expunged. This section excludes relief for certain sexual offenses, but allows it for others. Section 1203.4 makes clear that if relief is granted the petitioner is not allowed to own, possess, or control a concealable firearm pursuant to Penal Code Section 12021. However, it fails to advise those petitioners who were convicted of a sexual assault that the requirement to register pursuant to Penal Code Section 290 continues even if expungement is granted. Notice of the continuing obligation to register can only be found in Penal Code Section 290.1. [] The failure of Sections 290 and 1203.4 to advise petitioners of this continuing registration requirement has led to confusion amongst petitioners and their attorneys as to whether the registration requirement continues after the expungement. This proposal would eliminate Section 290.1 and incorporate its provisions into Sections 290 and 1203.4. (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 439 (2005-2006 Reg. Sess.) Sept. 2, 2005, p. 8.)[5]

Discussion

1. Standard of Review

Because the trial courts decision was rendered in the context of cross-summary judgment motions (Code Civ. Proc., 437c), the standard of review is well settled:  [T]he applicable standard of review on appeal in this case is de novo or independent review. There were no credibility issues at trial and the court decided only . . . limited question[s] of law[.] As an appellate court, we conduct independent review of the trial courts determination of questions of law. [Citation.] Interpretation of a statute is a question of law. [Citations.] Further, application of the interpreted statute to undisputed facts is also subject to our independent determination.  (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 792.) Moreover, since the only impact of the present judgment is prospective, we are concerned only with the interpretation of the relevant statutory provisions as they have been amended. (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 23 [In action to obtain an injunction, validity of the judgment must be determined on the basis of the current statutory provisions, rather than on the basis of the statutory provisions that were in effect at the time the injunctive order was entered]; 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, 399, p. 324 [Because relief by injunction operates in the future, appeals of injunctions are governed by the law in effect at the time the appellate court gives its decision].) We need not be concerned with the correctness of the trial courts interpretation of those portions of the statute that subsequently have been repealed.

2. Section 290

Section 290, subdivision (a), provides in relevant part that Every person described in paragraph (2), for the rest of his or her life while residing in California, . . . shall be required to register with the chief of police of the city in which he or she is residing . . . within five working days of coming into, or changing his or her residence within, any city . . . in which he or she temporarily resides. Subdivision (a)(2) as it now reads provides in relevant part, The following persons shall be required to register pursuant to paragraph (1): [] (A) Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state . . . of a violation of . . . subdivision (b) . . . of Section 311.2 . . . . [] . . . [] (F) Any person required to register pursuant to any provision of this section, regardless of whether the persons conviction has been dismissed pursuant to Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5. Under the plain language of section 290, subdivision (a)(2)(F), Adler is required to register regardless of whether his conviction was expunged under section 1203.4.

Contrary to Adlers contention, the amendments to section 290 did not revive his dismissed conviction for the improper purpose of imposing a registration requirement. The potential that such a duty would be imposed has existed since the time of his conviction. When a court orders a conviction set aside under [section1203.4], the defendant shall be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . . However, expungement under Penal Code section 1203.4 does not eradicate a conviction or purge a defendant of the guilt established thereby. [Citation.] That section was never intended to obliterate the fact that defendant has been finally adjudged guilty of a crime. [Citation.] It merely frees the convicted felon from certain penalties and disabilities of a criminal or like nature. (Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 877-878 (Adams).) Whether a particular disability is released by a successful petition under section 1203.4 is a question of legislative intent. (Id. at p. 880.)

The Legislature has enacted various statutes that expressly limit the relief provided by section 1203.4. (See, e.g.,  1203.4, subd. (a) [Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021]; Veh. Code,  13555 [A termination of probation and dismissal of charges pursuant to Section 1203.4 . . . does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter].) Former section 290.1, and current section 290, subdivision (a)(2)(F), similarly limit the relief afforded by section 1203.4. As the legislative history makes unmistakably clear, these statutes establish that registration is not a disability from which a defendant is released either presently or prospectively under section 1203.4. It is irrelevant that the registration requirement did not apply to Adlers offense through the time that his conviction was expunged. Former section 290.1 limited the effect of a dismissal under section 1203.4 to exclude the discharge of the duty to register. Whatever ambiguity there may have been as to the scope of former section 290.1, section 290 as amended unambiguously requires a person previously convicted of a currently registerable offense to register despite an intervening expungement of the offense under section 1203.4. Under the plain language of the current statute, Adler is now subject to a duty to register unless and until he obtains a certificate of rehabilitation pursuant to section 290.5.

3. The Ex Post Facto Clause

Applying to Adler the 1995 amendment of section 290, which requires him to register as a consequence of his expunged 1984 conviction, does not violate the ex post facto clauses of the federal or state constitutions. (U.S. Const., art. I,  10; Cal. Const., art. I,  9.) The framework for analysis under the ex post facto clause is well established: We must ascertain whether the legislature meant the statute to establish civil proceedings. [Citation.] If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is  so punitive either in purpose or effect as to negate [the States] intention to deem it civil.  [Citation.] Because we ordinarily defer to the legislatures stated intent, [citation]  only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.  (Smith v. Doe (2003) 538 U.S. 84, 92.) The ex post facto clause in the California constitution is analyzed in the same manner as its federal counterpart. (People v. Castellanos (1999) 21 Cal.4th 785, 790.)

In Wright v. Superior Court (1997) 15 Cal.4th 521, 527, our Supreme Court observed that the sex offender registration requirement is intended to promote the  state interest in controlling crime and preventing recidivism in sex offenders.   [Citation.] The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.] [Citations.] . . . [] . . . The statute is thus regulatory in nature, intended to accomplish the governments objective by mandating certain affirmative acts. In People v. Castellanos, supra, 21 Cal.4th 785, the court held that the regulatory scheme is civil and nonpunitive and, thus, not punishment for purposes of the ex post facto clause. The sex offender registration requirement serves an important and proper remedial purpose, and it does not appear that the Legislature intended the registration requirement to constitute punishment. Nor is the sex offender registration requirement so punitive in fact that it must be regarded as punishment, despite the Legislatures contrary intent. Although registration imposes a substantial burden on the convicted offender, this burden is no more onerous than necessary to achieve the purpose of the statute. (Id. at p. 796.) Accordingly, the Supreme Court held that the retroactive application of section 290 to a defendant whose illegal conduct occurred before the statute was amended to make his offense registerable did not violate the constitutional prohibition against ex post facto laws. (Id. at pp. 789-790.)

However, in People v. Castellanos, supra, 21 Cal.4th 785, the court did acknowledge a caveat. It does not appear that defendant is subject to the public notification provisions of section 290 . . . and we express no opinion regarding the effect, if any, that application of those provisions would have upon our analysis. (21 Cal.4th at p. 796, fn. 6; see also id. at p. 804, fn. 1 (conc. & dis. opn. of Kennard, J.) [Cases, unlike this one, in which defendants identity as a registered sex offender is open to widespread public disclosure would present significantly different issues in determining whether registration is punishment for either ex post facto or cruel and unusual punishment purposes. Public shaming of offenders has long been viewed as a form of punishment. [Citations.] This case presents no occasion to decide whether public disclosure of a sex offenders identity amounts to punishment for ex post facto purposes].)

Adler acknowledges the holding of Castellanos, but relying on the qualification noted in the opinion and in Justice Kennards concurrence argues that recent amendments to the public notification provisions (see  290.4, 290.45, 290.46) render the registration statute so punitive that it must now be considered punishment despite the Legislatures contrary intent.[6] Under the amendments that were made in 2005 to section 290.4, subdivision (a), the Department of Justice must operate a service through which members of the public may provide a list of at least six persons on a form approved by the Department of Justice and inquire whether any of those persons is required to register as a sex offender and is subject to public notification. Through this service the Department of Justice is authorized to disclose information on any person as to whom information may be available to the public via the Internet Web site as provided in Section 290.46, to the extent that information may be disclosed pursuant to Section 290.46. (Stats. 2005, ch. 722, 5, eff. Oct. 7, 2005 [Assem. Bill No. 1323].) Under section 290.46, subdivision (b), enacted in 2004, the Department of Justice must make available to the public via an Internet Web site the name and known aliases of registrants who have been convicted of certain enumerated offenses. Additional information including a photograph, a physical description, including gender and race, date of birth, criminal history, prior adjudication as a sexually violent predator, the address at which the person resides must also be made available. (Added by Stats. 2004, ch. 745, 1, eff. Sept. 24, 2004 [Assem. Bill No. 488].) For other enumerated offenses, section 290.46, subdivision (c)(1), limits the information that must be provided regarding the registrants residence to the community of residence and ZIP Code in which the person resides or the county in which the person is registered as a transient. In addition, section 290.45, subdivision (a)(1), now authorizes any designated law enforcement entity [to] provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person. Information that may be provided pursuant to subdivision (a) may include, but is not limited to, the offender's name, known aliases, gender, race, physical description, photograph, date of birth, address, which shall be verified prior to publication, description and license plate number of the offenders vehicles or vehicles the offender is known to drive, type of victim targeted by the offender, relevant parole or probation conditions, crimes resulting in classification under this section, and date of release from confinement, but excluding information that would identify the victim. ( 290.45, subd. (b); Stats. 2005, ch. 722,  6, eff. Oct. 7, 2005 [Assem. Bill No. 1323].)

Adler, however, does not appear to be subject to most of these disclosure provisions. The offenses for which he was convicted are not among those enumerated in section 290.46, so that he will not be listed on the states Internet Web page. ( 290.46.) Although section 290.45 permits California law enforcement agencies to notify the public regarding any registered sex offender, notification under this provision is authorized only if the agency first makes an individualized determination that the registrant currently poses a risk to the public. ( 290.45.)[7]

Moreover, Adlers argument was rejected by the United States Supreme Court in Smith v. Doe, supra, 538 U.S. 84. In that case, the court held that passive public notification procedures in a registration statute are not punishment for purposes of ex post facto analysis. The court expressly rejected the defendants argument that similar notification provisions included in Alaskas sex offender statute resembled shaming punishments of the colonial period. (Id. at p. 97.) The court explained, Any initial resemblance to early punishments is, however, misleading. Punishments such as whipping, pillory, and branding inflicted physical pain and staged a direct confrontation between the offender and the public. Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. [Citations.] By contrast, the stigma of Alaskas Megans Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme. (Id. at pp. 98-99.) The court continued, The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation. [] The States Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safetys Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaskas citizenry. (Id. at p. 99.)

Adler points to no feature of the California provisions that significantly differentiate the California system for public notification from the Alaska system considered in Smith v. Doe, supra, 538 U.S. 84. We see nothing in the California provisions that justifies a different result. Accordingly, we reject Adlers contention that the newly enacted notification provisions render application of section 290 to his conviction a violation of the ex post facto clause.

Proposition 83 at the General Election on November 7, 2006, enacted still further revisions of Californias sex offender registration statutes that may affect the constitutionality of applying the registration requirement to offenses predating these amendments. Among other things, these revisions impose stringent residency restrictions on registered sex offenders, who may not reside within 2000 feet of any public or private school, or park where children regularly gather. ( 3003.5, subd. (b).) Following the passage of Proposition 83, we requested additional supplemental briefing on the effect, if any, the new restrictions have on the validity of section 290 under the ex post facto clause of the California Constitution. The Attorney General has advised the court that since Proposition 83 was not made retroactive, it does not apply to registrants who already resided within 2000 feet of a school or park on November 8, 2006 (effective date of Proposition 83). Adler has made no allegation that he intends to change his current residence and the parties have therefore agreed that the provisions added by Proposition 83 are not relevant to Adlers challenge. We agree with the parties that this appeal does not present the issue of whether the ex post facto clause precludes application of the new residency restrictions to a person previously convicted of a sex offense who changes his residence after the effective date of the new restrictions.[8]

Hence, we conclude that Adler has failed to establish that requiring him to register pursuant to section 290, despite the prior dismissal of the charges against him pursuant to section 1203.4, is prohibited by the ex post factoprovisions of the state or federal Constitutions.

Disposition

The judgment is reversed, and the matter is remanded for the entry of a new judgment consistent with the views expressed herein.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] At all relevant times, section 1203.4 provided in relevant part that In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . . (Stats. 1989, ch. 917,  11, p. 3190.)

[3] In 1990, when Adlers conviction was expunged, section 290.1 provided, Notwithstanding Section 1203.4 and except as provided in Section 290.5, a person convicted of a felony sex offense shall not be relieved from the duty to register under Section 290. Prior to 1981, before section 290.1 was enacted (Stats. 1981, ch. 105, 1, p. 794), the registration requirement under section 290 was among the penalties and disabilities from which a convicted person was released by a dismissal under section 1203.4. (Kelly v. Municipal Court of San Francisco (1958) 160 Cal.App.2d 38, 40.) Indeed, the Legislature enacted section 290.1 with Kelly in mind, specifically intending thereby to correct a perceived flaw in the registration statutes which allowed convicted sex offenders to avoid continuing compliance with registration requirements by obtaining an expungement of their convictions. (People v. Fioretti (1997) 54 Cal.App.4th 1209, 1215.)

[4] The same bill sought to amend section 1203.4 to add, Except as provided in Section 290.5, the dismissal of an accusation or information pursuant to this section shall not relieve a person who is convicted of a sex offense for which registration is required under Section 290 from the duty to register under that section. (Stats. 2005, ch. 704,  3 [Assem Bill No. 439].) However, because a second bill amending section 1203.4 on an unrelated subject was enacted later on the same day, this amendment did not take effect. (Stats. 2005, ch. 705,  5 [Sen. Bill No. 67]; Gov. Code,  9605.)

Under section 290.5, subdivision (a)(1), A person required to register under Section 290 for an offense not listed in paragraph (2), upon obtaining a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3, shall be relieved of any further duty to register under Section 290 if he or she is not in custody, on parole, or on probation. Section 4852.01, subdivision (c), provides, Any person convicted of a felony or any 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 any prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading and 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. Nothing in the record indicates whether Adler has filed a petition for a certificate of rehabilitation. We express no opinion as to whether he would be entitled to such a certificate if properly requested.

[5] Because the parties did not address section 290, subdivision (a)(2)(F) in their original briefs, we requested and obtained supplemental briefing addressed to the amended statute.

[6] Our first request for supplemental briefing also directed the parties to address the potential effect, if any, the newly enacted public notification provisions have on the validity of section 290 under the ex post facto clause.

[7] Section 290.45, subdivision (a)(1) reads: Notwithstanding any other provision of law . . . any designated law enforcement entity may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person.

[8] The Attorney General states if a registrant, on or after November 8, 2006, moves to a residence that is within 2000 feet of a school or park, it is the Attorney Generals view of the law that it would then apply to such a registrant. Adler does not acquiesce in this view but agrees that the issue need not be decided in connection with this appeal.

Proposition 83 also enacted a new provision requiring electronic monitoring for life of persons required to register under section 290 who are committed to prison and released on parole pursuant to Section 3000 or 3000.1. ( 3004, subd. (b).) The Attorney General agrees that this provision does not apply to Adler since [i]t applies only to persons who serve prison terms and are released on parole on or after November 8, 2006.

We note certain additional issues that we do not address. Although not raised in the trial court or in his initial appellate briefs, in responding to this courts request for supplemental briefing on specified issues, Adler for the first time argued that requiring him to register despite the expungement of his conviction would violate the federal and state due process clauses and the state constitutional right of privacy. His argument relies largely on a 2004 decision of the Supreme Court of Alaska, Doe v. Dept. of Public Safety (Ala. 2004) 92 P.3d 398. These new contentions exceed the scope of this courts request for supplemental briefing and have been waived. (People v. Culuko (2000) 78 Cal.App.4th 307, 330.) No request was made for permission to file such additional briefing (see Cal. Rules of Court, rule 8.200(a)(4)), nor has any explanation been offered for the failure to make these contentions earlier. Still further, we observe that the decision of the Alaska Supreme Court places significant reliance on the fact that under the Alaska statute the setting aside of the prior offenders conviction reflects a substantial showing of rehabilitation (92 P.3d at p. 407) and a judicial determination that the particular offender does not pose significant danger of reoffending (id. at p. 409), which may differentiate the situation from a dismissal under section 1203.4 (compare People v. Chandler (1988) 203 Cal.App.3d 782, 788-789, quoting People v. Turner (1961) 193 Cal.App.2d 243, 247 [ The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation ]; with People v. Butler (1980) 105 Cal.App.3d 585, 588 [More accurately, . . . section [1203.4] rewards those who comply with their terms of probation or are relieved from complying. No evidence of rehabilitation is required to be entitled to relief]). As noted above, we have not been advised that Adler has obtained a certificate of rehabilitation ( 4852.06) which would relieve him of the registration requirement ( 290.5).