Opinion
E068270
07-06-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR HUMBERTO DAVILA, Defendant and Appellant.
Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos, Britton B. Lacy, and N. Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FELRS1401701) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed. Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos, Britton B. Lacy, and N. Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Victor Humberto Davila, petitioned for a certificate of rehabilitation and pardon under Penal Code section 4852.01, following his conviction for lewd or lascivious acts on a child under 14. (§ 288, subd. (a).) Defendant is ineligible for a certificate of rehabilitation under the statutory scheme (§ 4852.01, subd. (c)), and the trial court denied his petition. Defendant challenges the statute on equal protection grounds, arguing he is similarly situated to other sexual offenders (§§ 286, subd. (d)(2), 288a, subd. (d)(2)) who are eligible for certificates. We conclude defendant is not similarly situated to these other offenders and, even if he were so situated, the distinction between defendant and these other offenders survives rational basis review. We therefore reject his equal protection claim and affirm.
All further statutory references are to the Penal Code. --------
II. FACTS AND PROCEDURE
In October 1992, 19-year-old defendant pleaded no contest to two counts of lewd or lascivious acts on a child under age 14. (§ 288, subd. (a).) The court sentenced him to a total term of six years in custody, to be served at the California Youth Authority.
In May 2014, defendant petitioned for a certificate of rehabilitation. After various continuances and a decision by counsel to take the matter off calendar, in July 2016, defendant requested that the court recalendar the matter. The court heard the matter in March 2017. Defendant recognized that he was statutorily ineligible for a certificate of rehabilitation but nevertheless argued that section 4852.01 violated his equal protection rights. The court rejected the equal protection claim and denied defendant's petition.
III. DISCUSSION
A certificate of rehabilitation is one way for convicted felons to seek a pardon from the governor and relief "from certain civil disabilities attending the conviction." (People v. Ansell (2001) 25 Cal.4th 868, 871, 874.) With some exceptions, felons who have successfully completed their sentences and undergone an additional period of rehabilitation are eligible for a certificate. (§§ 4852.01, 4852.06; People v. Ansell, supra, at p. 875.) Defendant falls into one of the exceptions. Felons convicted of violating section 288, like defendant, are not eligible for a certificate of rehabilitation. (§ 4852.01, subd. (c) [denying eligibility to felons convicted under §§ 269, 286, subd. (c), 288, 288a, subd. (c), 288.5, 288.7, 289, subd. (j)].)
Defendant contends section 4852.01 violates his constitutional right to equal protection of the law because it makes certain sexual offenders eligible for a certificate but denies eligibility to other sexual offenders (like him). Generally, we review a decision granting or denying a certificate of rehabilitation for abuse of discretion. (People v. Failla (2006) 140 Cal.App.4th 1514, 1519.) But where, as here, the defendant raises a pure question of constitutional law, we independently review the ruling. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632.)
"At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification." (People v. Chatman (2018) 4 Cal.5th 277, 288 (Chatman).) The scrutiny we apply to unequal treatment depends on the type of classification at issue. (Ibid.) When, as in this case, the challenged law is not based on a suspect classification and does not burden fundamental rights, we apply rational basis review. (Id. at pp. 288-289; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).) The defendant must show the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Chatman, supra, at p. 289.) If we agree "the groups at issue [are] similarly situated in all material respects, we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose." (Ibid.)
Rational basis review sets a high bar. (Chatman, supra, 4 Cal.5th at p. 289.) We presume the challenged classification is rational until the defendant negates every conceivable basis that might support the disparate treatment. (Johnson, supra, 60 Cal.4th at p. 881.) The logic behind the potential justification need not be persuasive or sensible, as opposed to simply rational. (Chatman, supra, at p. 289.) So long as a plausible basis exists, we may not second guess the wisdom, fairness, or logic of it. (Johnson, supra, 60 Cal.4th at p. 881.) Moreover, the Legislature need not have actually articulated the rationale for the statutory classification, and the rationale need not be empirically substantiated. (Chatman, supra, at p. 289.) We "'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."'" (Johnson, supra, at p. 881.)
Defendant was convicted of lewd acts on a child under 14. (§ 288, subd. (a).) He contends he is similarly situated to other sexual offenders who are eligible for a certificate of rehabilitation—namely, those convicted of acting in concert with another person to commit sodomy on a child under 14 through force or fear (§ 286, subd. (d)(2)), and those convicted of acting in concert with another person to commit oral copulation on a child under 14 through force or fear (§ 288a, subd. (d)(2)).
We disagree that defendant is similarly situated to these other offenders. His offense requires the specific "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or victim. (§ 288, subd. (a).) There must be a union of the act and the required sexual intent. (People v. Lopez (2010) 185 Cal.App.4th 1220, 1229.) By contrast, the offenses on which defendant relies for his equal protection analysis (§§ 288a, subd. (d)(2), 286, subd. (d)(2)) require nothing more than a general criminal intent. (People v. Thornton (1974) 11 Cal.3d 738, 765, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12; People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) The higher mental state required for defendant's offense meaningfully distinguishes him from the offenders convicted of general intent crimes and shows he is not similarly situated to them. (People v. Singh (2011) 198 Cal.App.4th 364, 371.)
Even if defendant had shown he is similarly situated to these other offenders—which he does not—the challenged classification withstands rational basis review. We first consider the state purpose at issue. "[P]rocessing certificates of rehabilitation—once conceived as a means of relieving a burden on gubernatorial clemency decisions—nonetheless requires the expenditure of significant resources. The Penal Code provides eligible petitioners access to rehabilitative services and counsel during the five-year period of rehabilitation and appointed counsel for the certificate of rehabilitation proceedings. (§§ 4852.03, subd. (a), 4852.04, 4852.08.) The trial court must determine whether 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.' (§ 4852.13, subd. (a).) To assist in this determination, the court may order testimony and the production of evidence at the government's expense and may require the district attorney to perform an investigation. (§§ 4852.1, subd. (a), 4852.12, subd. (a).) And once a certificate of rehabilitation has been granted, the certificate is immediately forwarded to the governor's office, which then evaluates the petitioner for a pardon. (§§ 4852.14, 4852.16.) Irrespective of the outcome relative to any individual petitioner, this sequence involves the expenditure of significant judicial and executive branch resources. [¶] Preserving the government's financial integrity and resources is a legitimate state interest." (Chatman, supra, 4 Cal.5th at p. 290.)
It was the 1997 amendment to section 4852.01 that made certain sexual offenders who had abused children ineligible for certificates of rehabilitation. (Stats. 1997, ch. 61, § 2.) The legislative history indicates this precise concern over government resources figured into legislative deliberations. The bill analysis by the Assembly Committee on Public Safety noted the '"significant costs associated with the investigations'" for certificates of rehabilitation. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 729 (1997-1998 Reg. Sess.) Apr. 22, 1997.) The analysis also noted the devastating effects of these crimes on the child victims and explained that rehabilitation for the affected sexual offenders was unlikely, given the high recidivism rate for these crimes. (Ibid.) Instead of using scarce government resources to process requests for certificates by this class of offenders, the bill analysis suggested the public would be better served by eliminating the offenders' eligibility. (Ibid.)
The next question is whether the classification at issue bears a rational relationship to preserving government resources. We conclude it does. The higher mental state required for defendant's offense provides that rational basis alone. A specific "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires" of the perpetrator or victim (§ 288, subd. (a)) is a significantly more culpable mental state than the general intent required for the offenses to which defendant compares his conviction. To preserve government resources, the Legislature could have rationally determined to exclude offenders with the more culpable mental state from the certificate of rehabilitation process. The Legislature also could have rationally determined that the general intent offenders defendant identifies are comparatively less culpable, less likely to reoffend, and more likely to truly rehabilitate than someone who committed defendant's specific intent crime. Reserving eligibility for those sexual offenders more likely to rehabilitate is a rational manner of preserving the government resources used to process certificates of rehabilitation.
Even if this classification does not represent a perfect fit between means and ends, or is to some extent both underinclusive and overinclusive, there exists a plausible reason for distinguishing between the groups of offenders at issue, and we must accept it. (Johnson, supra, 60 Cal.4th at p. 887.) "Section 4852.01's eligibility criteria might not reflect the ideal rehabilitative system. But we cannot cast aside the deferential nature of our inquiry." (Chatman, supra, 4 Cal.5th at p. 294.) Defendant has not negated every conceivable basis that might support the challenged classification. It thus survives rational basis review.
IV. DISPOSITION
The order denying defendant's petition for a certificate of rehabilitation is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.