Filed 9/20/17 P. v. Parten CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.

Law Offices of Robert D. Salisbury and Robert Salisbury for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Kevin O’Rourke Parten appeals from an order after the trial court denied his petition for a certificate of rehabilitation and pardon. Parten argues the trial court erred by denying his petition because his equal protection rights were violated. We disagree and affirm the order.

FACTS

In August 1986, Parten was convicted of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated). The trial court suspended imposition of sentence, ordered he serve 60 days in jail, and placed him on three years of probation.

In June 2014, Parten filed a petition for a certificate of rehabilitation and pardon and later a reply to the Orange County District Attorney’s (OCDA) opposition. The OCDAs opposition is not part of the record on appeal, and the trial court’s minutes do not reflect one was filed.

At a hearing in May 2016, Parten argued his equal protection rights were violated. The trial court disagreed, stating the following: “Here, we are dealing also with [section] 288[, subdivision] (a) . . . . At no time was . . . Parten ever eligible for a certificate of rehabilitation either under the original section 4852.01[, subdivision] (d) or under the amended section 4852.01. The case [People v. Tirey (2015) 242 Cal.App.4th 1255] makes it clear that it was never the intention of the Legislature to include people convicted of [section] 288 in terms of granting them a certificate of rehabilitation. Again here even on the merits I would deny it because . . . Parten has not demonstrated that he’s no longer a threat to minors.”

DISCUSSION

Section 4852.01 governs the procedure to obtain a certificate of rehabilitation, which is an intermediate step toward securing a full pardon. (People v. Ansell (2001) 25 Cal.4th 868, 875-876 (Ansell).) “[T]he certificate of rehabilitation procedure is available to convicted felons who have successfully completed their sentences, and who have undergone an additional and sustained ‘period of rehabilitation’ in California. (§ 4852.03, subd. (a); see §§ 4852.01, subds. (a)-(c), 4852.06.)” (Ansell, supra, 25 Cal.4th at p. 875.) However, section 4852.01, subdivision (c), provides: “This chapter does not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of [s]ection 269, subdivision (c) of [s]ection 286, [s]ection 288, subdivision (c) of [s]ection 288a, [s]ection 288.5, [s]ection 288.7, or subdivision (j) of [s]ection 289, or persons in military service.”

Parten concedes he is statutorily excluded from seeking a certificate of rehabilitation. However, Parten argues section 4852.01 violates his equal protection rights because it permits persons who have committed forcible sexual acts on children under the age of 14 (§ 286, subd. (d)(2) [forcible sodomy with a victim under 14 years of age], § 288a, subd. (d)(2) [forcible oral copulation with a victim under 14 years of age]), to request a certificate of rehabilitation, but denies those persons like defendant who have committed nonforcible sexual acts on children under the age of 14 (§ 288, subd. (a) [nonforcible lewd and lascivious act with a victim under 14 years of age]).

“‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’” [Citation.] ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)

The statutes in question distinguish between persons who commit the offense alone (§ 288) and persons who commit the offense “while voluntarily acting in concert with another person” (§§ 286, subd. (d)(2), 288a, subd. (d)(2)). Thus, on their face, the latter statutes concerning sex offenses committed against a child by more than one person (§§ 286, subd. (d)(2), 288a, subd. (d)(2)), are distinguishable from section 288, which punishes a person who commits an act alone. Additionally, all section 288 offenders who commit a lewd and lascivious act on a victim under 14 years of age are treated similarly under section 4852.01—all are prohibited from requesting a certificate of rehabilitation. (§ 4852.01, subd. (c).)

Parten’s reliance on People v. Hofsheier (2006) 37 Cal.4th 1185,

1199-1200 (Hofsheier), overruled on other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871 (Johnson), to argue essentially those who violate any statute involving sexual conduct with minors are similarly situated, is misplaced. Hofsheier concerned sections 261.5 and 288a, subdivision (b)(1), neither of which are at issue here and neither of which concerned acting in concert with others.

Assuming for the sake of argument Parten is similarly situated to persons who commit violations of section 286, subdivision (d)(2), and section 288a, subdivision (d)(2) (People v. Johnson (2004) 32 Cal.4th 260, 268 [if court determines distinct classes not similarly situated, court need not proceed to second step]), we conclude there was a rational basis between the disparate treatment and some legitimate governmental purpose.

“Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, ‘equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.”’ [Citations.] ‘This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in “‘rational speculation’” as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review “whether or not” any such speculation has “a foundation in the record.”’ [Citation.] To mount a successful rational basis challenge, a party must ‘“negative every conceivable basis”’ that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ‘“wisdom, fairness, or logic.”’ [Citations.]” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).)

In making the statutory distinction between those who violate section 286, subdivision (d)(2), and 288a, subdivision (d)(1), and those who violate section 288, it is conceivable the Legislature rationally concluded a person convicted of a crime in which he acted with another may be more amenable to rehabilitation and less likely to reoffend than someone who acted alone. Contrary to Parten’s suggestion this is “absurd,” we agree with the Attorney General that people may choose to do things together with others that they would not choose to do alone and the former are more amenable to rehabilitation. Although sections 286, subdivision (d)(2), and 288a, subdivision (d)(2), also includes principals, this fact does not invalidate the rationality of the disparate treatment among the groups. “‘A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends”’ [citations], or ‘because it may be “to some extent both underinclusive and overinclusive”’ [citations].” (Johnson, supra, 60 Cal.4th at p. 887.)

Finally, the trial court ruled on the merits. To obtain a rehabilitation certificate, the petitioner must have successfully completed his sentence and show a sustained “period of rehabilitation” in which the petitioner demonstrates “a good moral character,” encompassing traits of honesty, sobriety, industry, and obeying all laws. (§ 4852.05.) “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, supra, 25 Cal.4th at pp. 887-888.)

A petition for certificate of rehabilitation is addressed to the trial court’s discretion, and the exercise of that discretion will be overturned only for a miscarriage of justice. (People v. Blocker (2010) 190 Cal.App.4th 438, 444; People v. Lockwood (1998) 66 Cal.App.4th 222, 226-227.) The burden is on the complaining party to establish an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)

Here, although the trial court ruled Parten was statutorily ineligible for a certificate of rehabilitation, the court also concluded Parten had not established he was rehabilitated because he had not demonstrated he was no longer a threat to minors. The court had before it Parten’s petition and supporting documents, including his associate’s and bachelor’s degrees, employment and volunteer certifications, and letters. One of the letters was from Parten’s therapist, who concluded Parten was not a danger to children. The trial court was free to disregard these documents because of the short passage of time, and conclude Parten had not overcome the high hurdle necessary to demonstrate he was rehabilitated.

DISPOSITION

The order is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.