PEOPLE v. F. PAUL FAILLA

Filed 6/30/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

In 1989, defendant entered into a plea agreement in which he pleaded guilty to burglary (Pen. Code, § 459)^[1] and penetration by foreign object (§ 289) in Los Angeles County. In 1994, he was paroled and moved to San Bernardino County. As part of his plea agreement, defendant was required to register as a sex offender. (§ 290.) Subsequently, defendant filed a certificate of rehabilitation (§§ 4852.01, 4852.06), which would allow him to seek a gubernatorial pardon of his offenses and, hence, relieve him of his obligation to register as a sex offender. Following a hearing, the trial court denied that request and ruled that defendant had to wait five years from the date of the denial before he could file another petition. Defendant's sole contention on appeal is that the trial court erred in calculating the waiting period to apply for another certificate of rehabilitation. We find no error and will affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, there were a series of burglaries and sexual assaults upon women in the Los Angeles County area. Specifically, on July 14, 1989, defendant, who was then 62 years old, entered into victim Lori F.'s apartment through an open window. He blindfolded Lori and raped her while threatening her with a knife and a pair of scissors. On July 22, 1989, defendant broke into victim Elizabeth L.'s home. He blindfolded her and placed a washcloth over her mouth; he then raped her and forced her to orally copulate him. On August 4, 1989, defendant broke into victim Susan W.'s apartment. After waking her up, he forced her to orally copulate him and then raped and sodomized her. On August 12, 1989, after defendant removed a screen and climbed through an open front widow of victim Marie S.'s apartment, he woke her up and inserted his fingers into her vagina while he masturbated. On August 17, 1989, victim Diane M. alerted police to a prowler, later identified as defendant, outside her home who was looking into her bedroom window and attempting to enter through a bathroom window. Two days later officers staked out the area and caught defendant looking into Diane's apartment. Defendant was arrested after a short pursuit. He claimed he was merely walking down the street when two plainclothes policemen began chasing him.

Although defendant denied committing the offenses, he accepted a plea bargain of eight years in state prison and pleaded guilty to burglary (§ 459) and sexual penetration by foreign object (§ 289).

Defendant was released from state prison in 1994 and placed on parole in San Bernardino County, where he resided in Victorville with a female companion.

On November 17, 2004, defendant sought a certificate of rehabilitation, for which he was eligible and which would allow him to seek a gubernatorial pardon of his offenses and relieve him of his lifetime obligation to register as a sex offender pursuant to section 290. In January 2005, an investigative report concerning defendant's background and criminal history was prepared by an investigator for the San Bernardino County District Attorney's Office.

A hearing concerning defendant's petition of rehabilitation was held on May 12, 2005. At that hearing, the trial court considered the investigative report as well as a police report dated July 28, 1999, regarding an incident that occurred near defendant's residence. According to the police report, on July 26, 1999, officers received a telephone call concerning a beating. James Madsen was at home in his trailer watching television when he heard a noise outside. He saw defendant reach into the bed of Madsen's pickup truck and take a chainsaw. Madsen went outside, grabbed a push broom, and began beating defendant. Madsen's chainsaw was found in defendant's vehicle. Madsen, who did not know defendant, subsequently placed defendant under citizen's arrest. In the report, defendant claimed that he had met Madsen several months earlier, when Madsen expressed an intent to buy defendant's vintage Mercedes-Benz. Madsen offered to sell marijuana to defendant, which defendant agreed to buy on credit. On the day of the incident, defendant stated that he went to Madsen's residence to repay Madsen for the marijuana he had bought. Madsen became irate when defendant did not have all the money. Madsen began yelling at defendant that he needed to pay the entire debt. He then grabbed a chainsaw and a broom and began beating defendant with the broom.

The trial court also heard testimony from defendant regarding the 1999 incident. This testimony differed from the information attributed to defendant in the 1999 police report. Defendant testified that he had gone to Madsen's residence to pay Madsen money for marijuana that his son had bought and that Madsen became angry and began hitting him with a broom when defendant stated that he did not have all the money. Defendant denied ever using any type of illegal drug.

After hearing argument from counsel and considering the evidence, the trial court denied defendant's request for a certificate of rehabilitation, as there was satisfactory proof defendant violated the law (§ 4852.11). The court also ruled that defendant had to wait five years from the date of the denial before he could file another petition (§ 4852.11). This appeal followed.

II

DISCUSSION

Defendant contends the trial court erred in calculating the waiting period to apply for another certificate of rehabilitation. Specifically, defendant claims the waiting period is 10 years commencing from the date of the violation of law, which was on July 26, 1999, and thus he should only have to wait until July 26, 2009, before filing a new petition, as opposed to counting five years from the date of the denial of the certificate of rehabilitation petition, which was May 12, 2005.

This is a case of first impression. Our independent research has revealed no case that articulates the proper standard of calculating the waiting period to apply for another certificate of rehabilitation after the denial of an initial certificate.

We begin our analysis by discussing the relevant law regarding the procedures for obtaining a certificate of rehabilitation. The Penal Code provides a procedure for applying for a certificate of rehabilitation for â€