Filed 8/8/17 P. v. Contreras CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIA ALVAREZ CONTRERAS,

Defendant and Appellant.

F071957

(Super. Ct. No. VCF040396X-98)


OPINION

APPEAL from an order of the Superior Court of Tulare County. Valeriano Saucedo, Judge.
John Patrick Ryan, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

INTRODUCTION
Appellant Maria Alvarez Contreras is an undocumented person who is attempting to normalize her immigration status in the United States. In 1998, she was convicted of two counts of possession of drugs for sale. Her convictions occurred when she pled no contest to these charges in the Tulare County Superior Court. In the following years, she subsequently undertook efforts, through the filing of various motions, to expunge and obtain pardon for those convictions. The present appeal involves the trial court’s denial of her petition for rehabilitation and pardon pursuant to Penal Code section 4852.01 (the Rehabilitation). She claims that the trial court abused its discretion in denying the Rehabilitation. We find no abuse of discretion and affirm the trial court’s order.
BACKGROUND
I. The Prior Criminal Matter.
We take some of the background facts from this court’s unpublished opinion in People v. Superior Court (Contreras) (Oct. 20, 2011, F063031) (Contreras).
In a felony complaint filed in July 1998 (Tulare County Superior Court case number VCF040396X-98) (the Criminal Matter), appellant was charged with violating Health and Safety Code sections 11351 and 11359 (possession of cocaine and marijuana for sale, respectively). In November 1998, appellant entered a plea of no contest to both charges in the Criminal Matter.
“At the change of plea hearing, the court stated, ‘If you’re not a citizen of the United States, your plea of guilty or no contest could result in you being deported from the United States, denied readmission, naturalization and permanent residency.’”
II. Appellant’s Past Efforts To Expunge Or Vacate The Convictions.
On November 9, 2005, appellant obtained an order in the Criminal Matter to set aside her convictions pursuant to Penal Code section 1203.4 (the Expungement).
In April 2011, appellant filed a motion in the Criminal Matter to vacate the judgment pursuant to Penal Code section 1016.5 (failure to adequately warn defendant of immigration consequences prior to entry of a guilty or no contest plea). (See Contreras, supra, F063031, at p. 2; Pen. Code, § 1016.5, subd. (b).)
On June 15, 2011, the trial court entered a written order setting aside appellant’s judgment and allowing her to withdraw her pleas from the Criminal Matter. (Contreras, supra, F063031, at p. 5.) However, in Contreras, this court subsequently granted a petition for writ of mandate and directed the superior court to vacate its order and deny appellant’s motion. (Contreras, supra, F063031, at p. 8.)
III. The Present Application For Rehabilitation.
On or about February 11, 2015, appellant filed the present application for Rehabilitation pursuant to Penal Code sections 4852.01 and 4852.06. On June 8, 2015, the trial court issued an order (the Order) denying the Rehabilitation. The Order stated that appellant “has been an undocumented alien from the time of her felony offense in 1998 to the entire period of her rehabilitation.” The Order relied upon a 1999 opinion from the Attorney General (82 Ops.Cal.Atty.Gen. 176 (1999) (the A.G. Opinion)). The Order noted that the A.G. Opinion was “not binding authority,” but its reasoning was “sound and applicable in this instance.” The Order found that appellant “is an alien residing in the United States in violation of federal immigration law and has no rights of citizenship to be restored through this process. She has not during the period of rehabilitation obeyed the laws of the land.”
On July 9, 2015, appellant filed her present appeal of the Order.
DISCUSSION
Appellant contends that the trial court based the Order solely on the A.G. Opinion, which she contends no longer reflects public policy in California or the will of the Legislature. She asks this court to vacate the Order and grant her motion for the Rehabilitation.
A. Standard of review.
Penal Code section 4852.22 vests discretionary authority in the superior court to grant an application for a certificate of rehabilitation if it “believes relief serves the interests of justice.” (Pen. Code, § 4852.22.) When discretionary power is statutorily vested in the trial court, we will not disturb the trial court’s decision on appeal unless “the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].) The abuse of discretion standard “involves abundant deference” to the court’s ruling. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)
B. Analysis.
The parties disagree regarding whether appellant is entitled to the relief she now seeks. Appellant states that her “main reason” in seeking the Rehabilitation “is to assist her immigration case.” She argues that the A.G. Opinion is outdated and any reliance on it was “obviously improper” based on a recent shift in public policy. To show the “tectonic shift” occurring in this state, she notes that undocumented persons may now apply for a driver’s license in California (Veh. Code, § 12801.9, subd. (a)) and an undocumented person may be admitted to practice law here so long as other qualifications are met (Bus. & Prof. Code, § 6064, subd. (b); In re Garcia (2014) 58 Cal.4th 440, 447).
In contrast, respondent does not address appellant’s argument that the trial court abused its discretion. Instead, respondent asserts that appellant’s conviction has already been expunged so she has received the relief she now requests. Respondent further contends the relief which appellant received with the Expungement through Penal Code section 1203.4 is greater than the relief she would receive with the Rehabilitation through Penal Code section 4852.01. To resolve the parties’ dispute, we turn to the applicable laws.
1. Relevant federal law.
Under federal law, an “alien” is “any person not a citizen or national of the United States.” (8 U.S.C. § 1101(a)(3).) Federal law prohibits aliens from entering the United States without applying for admission. (8 U.S.C. §§ 1101(a)(4), 1181(a), 1201.) Aliens are subject to deportation following convictions of criminal offenses (8 U.S.C. § 1227(a)(2)(A)(i)) and exclusion from admission into the United States (id., § 1182(a)(2)(A)(i)).
“‘Deportation is the removal or sending back of an alien to the country from which he or she has come .…’ [Citation.] ‘Exclusion’ is ‘being barred from entry to the United States.’ [Citation.] ‘Naturalization’ is a process by which an eligible alien, through petition to appropriate authorities, can become a citizen of the United States. [Citation.]” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 207-208.)
2. California law regarding applications for rehabilitation.
The California Legislature has enacted a statutory scheme (Pen. Code, §§ 4852.01-4852.22) (the Statutory Scheme) allowing a person who has been convicted of a felony to petition for a “certificate of rehabilitation and pardon” after being discharged from custody. (Pen. Code, §§ 4852.01, subds. (a)-(d), 4852.03, subd. (a).) To qualify, a person must, in part, “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.” (Pen. Code, § 4852.05, italics added; see also Pen. Code, § 4852.06.) The Statutory Scheme does not address its application regarding undocumented persons. (See generally Pen. Code, §§ 4852.01-4852.22.)
If the court finds that the petitioner has demonstrated rehabilitation through his or her “course of conduct” and “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. This order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation.” (Pen. Code, § 4852.13, subd. (a).) With certain narrow exceptions, whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship. (Pen. Code, § 4852.17.)
3. The A.G. Opinion.
The A.G. Opinion was issued in 1999 following a request from the Youth and Adult Correctional Agency. The question presented was whether an alien residing in the United States in violation of federal immigration law is eligible for a certificate of rehabilitation and pardon. (A.G. Opinion, supra, 82 Ops.Cal.Atty.Gen. at p. 176.) The Attorney General answered that question in the negative. (Ibid.)
In reaching its conclusion, the Attorney General reviewed the Statutory Scheme appearing in Penal Code sections 4852.01 through 4852.21. (A.G. Opinion, supra, 82 Ops.Cal.Atty.Gen. at pp. 176-178.) The Attorney General determined that “an alien who is residing in the United States in violation of federal immigration law has no rights of citizenship to be restored. He is not a citizen, and the certification of rehabilitation and pardon cannot make him one. The purpose of the [S]tatutory [S]cheme cannot be served by granting such a person a certificate and pardon.” (Id. at p. 178.) The A.G. Opinion also determined that “[a] certificate and pardon serves to encourage and reward those who conform to and obey the laws of the land. One who has failed to do so and continues to violate federal law is not a person entitled to such special treatment.” (Ibid., fn. omitted.)
With these authorities in mind, we turn to the parties’ dispute. As an initial matter, we reject respondent’s contention that we should find appellant’s claim moot. The Statutory Scheme expressly states that “[t]his chapter shall be construed as providing an additional, but not an exclusive, procedure for the restoration of rights and application for pardon. Nothing in this chapter shall be construed as repealing any other provision of law providing for restoration of rights or application for pardon.” (Pen. Code, § 4852.19.) We read this statute as permitting appellant to make the present petition for relief despite previously obtaining the Expungement. As such, we find respondent’s arguments unpersuasive. However, we reject appellant’s claims after finding no abuse of discretion.
The supreme law of the land are the laws of the United States. (Regents of Univ. of Cal. v. Public Employment Relations Bd. (1990) 220 Cal.App.3d 346, 358.) Obtaining a gubernatorial pardon based upon a certificate of rehabilitation entitles the person, with certain limitations, to exercise civil and political rights of citizenship. (Pen. Code, § 4852.17.) To obtain those rights, however, a trial court must find that a petitioner has demonstrated rehabilitation through his or her “course of conduct” and “fitness” to exercise those rights. (Pen. Code, § 4852.13, subd. (a).) As the A.G. Opinion noted, the Statutory Scheme applies to citizens of the United States. (A.G. Opinion, supra, 82 Ops.Cal.Atty.Gen. at p. 178; see also Pen. Code, §§ 4852.13, subd. (a), 4852.17.)
As appellant concedes, opinions by the California Attorney General, although not binding, are entitled to great weight and they are persuasive in the absence of controlling authority. (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17.) The A.G. Opinion addressed this issue and rejected appellant’s position. We presume that the Legislature is aware of the A.G. Opinion, and it would have adopted corrective measures if it misstated legislative intent. (See California Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d at p. 17.) As such, we reject appellant’s contentions that the trial court was required to grant the Rehabilitation based on an alleged change in public policy regarding undocumented persons.
The trial court correctly noted that appellant has failed to conform to and obey the laws of the land as required in order to obtain the Rehabilitation. In reviewing this record and the Statutory Scheme, the trial court’s order was not arbitrary, capricious or patently absurd. The trial court’s reliance on the A.G. Opinion was not an abuse of discretion. A manifest injustice is not present. Accordingly, this claim fails.
DISPOSITION
The June 8, 2015, order denying appellant’s petition for rehabilitation pursuant to Penal Code section 4852.01 is affirmed.


LEVY, Acting P.J.
WE CONCUR:



DETJEN, J.



MEEHAN, J.