Opinion
E025062
Filed April 28, 2000 Certified for Publication
Appeal from the Superior Court of San Bernardino County. Nos. OCR 10208/13307, Gerard S. Brown, Judge. Affirmed.
Law Offices of Blomberg Benson and John L. Benson for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Rhonda L. Cartwright-Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
In this case, we reconsider this division's 1983 decision in Sovereign v. People (1983) 144 Cal.App.3d 143. In Sovereign, we held that retroactive application of a statute increasing the waiting period before an ex-prisoner could apply for a certificate of rehabilitation violated ex post facto principles. In this case, we find that Sovereign has been effectively overruled by our Supeme Court's recent decision in People v. Castellanos (1999) 21 Cal.4th 785. Accordingly, we expressly overrule Sovereign.
Four other recent appellate court cases follow the principles stated in Castellanos. The trial court relied on People v. Ansell (1999) 71 Cal.App.4th 1285, review granted (S079744). In that case, our colleagues in the Third District refused to follow Sovereign and held that a statutory amendment which made certain sex offenders ineligible for a certificate of rehabilitation and pardon did not violate ex post facto principles.
The Supreme Court has also granted review in People v. Lugas (1999) 76 Cal.App.4th 696, review granted (S085015). In Lugas, our colleagues in the Sixth District disagree with Sovereign, finding that it misapplied early Supreme Court cases. The court rejected the ex post facto claim because defendant Lugas did not identify an increase in punishment resulting from application of the amended statute to him.
In addition, the Supreme Court has granted review in People v. Woodson (1999) 76 Cal.App.4th 1051, review granted (S085092). In that case, our colleagues in Division Four of the First District found that the analysis in Sovereign cannot be reconciled with the discussion in Castellanos. It therefore concluded that Sovereign was no longer viable.
Since the Supreme Court has granted review in Ansell, Lugas and Woodson, the cases are not citable as precedent. (Cal. Rules of Court, rules 976(d), 977.) We discuss those cases only to explain our reasoning, and do not give them any precedential value.
In an earlier opinion, the Woodson court followed Sovereign. ( People v. Woodson, supra, 74 Cal.App.4th 1165, rehearing granted.) The court granted rehearing and reconsidered the issue in the light of the recent Castellanos opinion.
In People v. Acuna (2000) 77 Cal.App.4th 1056, the court followed Castellanos and held that the statutory elimination of a possibility for expungement of a conviction for violating Penal Code section 288 was not punishment and did not violate ex post facto laws.
Unless otherwise indicated, all further statutory citations are to the Penal Code.
After reviewing Sovereign in light of these cases, we will conclude that it should be overruled, and that this district should follow the principles stated in Castellanos.
FACTS AND PROCEDURAL HISTORY
On March 25, 1999, defendant Harper filed a petition for a certificate of rehabilitation and recommendation for pardon pursuant to section 4852.01 et seq. The petition alleged that, in 1986, defendant Harper had been convicted of attempted incest (§§ 285, 664) and child molestation (§ 288, subd. (a)). In 1988, he pled guilty to a charge of willful failure to appear after release on bail (§ 1320.5).The petition also alleged that defendant was sentenced to a term of 12 years and 4 months in state prison. He was released from prison on February 8, 1994, and was placed on parole for three years. He was discharged from parole on February 8, 1997. He alleges that he has been rehabilitated and has led an exemplary life in the five-year period following his release from prison.
The trial court denied the petition on grounds that the current version of section 4852.01 denies any relief to a person convicted of a violation of section 288. As noted above, the trial court relied on People v. Ansell, supra, 71 Cal.App.4th 1285, review granted (S079744). Since review has been granted by our Supreme Court the case is no longer citable as precedent. (Cal. Rules of Court, rules 976(d), 977.)
Defendant's main contention on appeal is that, since the disqualifying provision was not enacted until 1997, its application to him violates the constitutional provision against ex post facto laws because it imposes additional punishment on him for his earlier crime. He relies on Sovereign to support his contention that his case should be governed by the statute in effect when he began his statutory waiting period in 1994.
THE STATUTORY PROCEDURES
The California Constitution gives the Governor general authority to grant reprieves, pardons and commutations of sentence. (Cal. Const., art. V, § 8; § 4800.) The statutes authorize the Board of Prison Terms to recommend candidates for pardon to the Governor. (§ 4801.) A former prisoner may also apply directly for a pardon. (§§ 4802, 4803.)
The statutes also provide another method of seeking a pardon. Under section 4852.01, et seq., a former prisoner may first apply for a certificate of rehabilitation. This avenue provides "an additional, but not an exclusive, procedure for the restoration of rights and application for pardon." (§ 4852.19.) If a certificate of rehabilitation is granted, it acts as an application for a full pardon. (§ 4852.16.) The Governor is authorized to issue a pardon without further investigation. However, such pardons are rarely issued, and executive clemency is granted in relatively few situations.
Even if a pardon is not granted, the obtaining of a certificate of rehabilitation has one significant effect: it relieves a convicted sex offender of the duty to register as a sex offender under section 290. (§ 290.5.) Because the statutory procedure was being used by convicted sex offenders to avoid the registration requirement, the Legislature enacted the 1996 and 1997 amendments. Under these amendments, the waiting period to obtain a certificate of rehabilitation was increased for offenses which required sex offender registration (§ 4852.03, subd. (a)(2)); certain sex offenders were declared ineligible for a certificate of rehabilitation, although they could still be pardoned if the Governor found the existence of extraordinary circumstances (§ 4852.01); and certain sex offenders were declared ineligible for a certificate of rehabilitation if the court finds that they present a continuing threat to minors (§ 4852.13, subd. (b)).
The procedure for obtaining a certificate of rehabilitation requires a showing that the former prisoner meets the statutory requirements. (§ 4852.01.) If the former prisoner qualifies for a certificate of rehabilitation, he or she may apply for a certificate after service of a minimum rehabilitation period. (§§ 4852.03, 4852.06.) After serving the minimum period of rehabilitation, the former prisoner files the petition and a hearing is held. (§§ 4852.06, 4852.1.) If the court finds that the petitioner has demonstrated rehabilitation, "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." (§ 4852.13.) The certificate may be the basis for the issuance of a full pardon by the Governor. (§§ 4852.13, 4852.16.)
To obtain a certificate of rehabilitation, the defendant must establish his good conduct and rehabilitation during a rehabilitation period. The rehabilitation period begins upon release from prison and continues for a base period of five years, plus an additional two, four, or five years, depending on the offense. (§ 4852.03.) Under the current statute, defendant is ineligible for a certificate of rehabilitation because he has not served a 10-year rehabilitation period. Also, as noted above, defendant Harper is not eligible for a certificate of rehabilitation because the current statute specifies that persons convicted of certain sex offenses, including violations of section 288, are ineligible for a rehabilitation certificate. (§ 4852.01, subd. (d).) The trial court therefore denied the petition on these grounds.
ISSUE
Defendant commenced his rehabilitation period upon his release from prison in February 1994. At that time, the statute provided that a certificate of rehabilitation was available if defendant had not been incarcerated since his release, if he was a resident in the state for a three-year period prior to filing his request for the certificate, and the court found that he had been rehabilitated. (Stats. 1976, ch. 434, § 2; § 4852.13.) Although defendant contends that he met all the eligibility requirements of the former statute, the trial court did not make any factual determinations on the rehabilitation issue because it found defendant disqualified under the current statute.
Defendant's current ex post facto contention is based on the facts that (1) the amendment disqualifying certain sex offenders was added in 1997, effective January 1, 1998 (Stats. 1997, ch. 61, § 2), and (2) the amendment extending the basic waiting period to five years was added in 1996, effective January 1, 1997. (Stats. 1996, ch. 981, § 3.)
By request filed September 21, 1999, respondent has requested that we take judicial notice of certain legislative history documents relating to the intent of the Legislature in adopting the 1997 amendments. The request is granted, and we take judicial notice of the proffered documents. (Evid. Code, §§ 452, 459)
The issue to be determined is whether ex post facto principles were violated because statutory amendments enacted after commencement of defendant Harper's rehabilitation period (1) declared him ineligible to apply for a certificate of rehabilitation because of the nature of his prior offense; and (2) lengthened the rehabilitation period applicable to him from three to seven years after he had commenced serving the rehabilitation period.
EX POST FACTO PRINCIPLES
Defendant argues that application of the current statutes to him violates the ex post facto clauses of the United States and/or California Constitutions. He relies on the discussion of ex post facto principles in the United States Supreme Court case of Collins v. Youngblood (1990) 497 U.S. 37. The issue in that case was whether the ex post facto clause was violated when a Texas statute which allowed the reformation of an improper jury verdict was passed after defendant's crime and it was applied to him. The Supreme Court rejected defendant's ex post facto claim by focusing on the definition of an ex post facto law. It reaffirmed the definition in Beazell v. Ohio (1925) 269 U.S. 167: "`[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed. . . .'" ( Collins, at p. 42.) Accordingly, "Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." ( Id., at p. 43.) Defendant there conceded that the Texas procedural statute did not meet this definition, but nevertheless argued that the ex post facto clause also applied to statutes that deprived a defendant of a substantial protection of existing law. ( Id., at p. 44.) The Supreme Court rejected this assertion and held that the Texas statute did not violate the ex post facto clause because it did not redefine a crime, abolish a defense, or increase punishment. ( Id., at p. 52.)
Since there is no significant difference between the two provisions, we will refer to general ex post facto principles. ( People v. Mills (1992) 6 Cal.App.4th 1278, 1283.)
Defendant therefore contends that the statutory amendments made retroactively applicable to him by the trial court's ruling impermissibly increased his punishment for his prior crime.
Defendant relies on this court's decision in Sovereign v. People, supra, 144 Cal.App.3d 143. In Sovereign, defendant was released from prison in 1978, and was discharged from parole in 1979. In 1981 he filed a petition for rehabilitation, and the petition was granted in August 1981. ( Id., at p. 145.) In 1982 the People moved to set aside the order granting the petition on grounds that defendant had not completed the waiting period. The contention was based on a 1980 statutory amendment which lengthened the waiting period. ( Id., at p. 146.) The trial court rejected the contention and denied the motion to vacate, ruling that application of the amended statute to defendant would subject him to increased punishment for his crime, in violation of the ex post facto clauses of the federal and state Constitutions. ( Id., at pp. 146-147.) We affirmed.
Sovereign first discusses the punishment for crimes, noting that punishment in the form of statutory disabilities continues long after completion of a prison term. ( Id., at p. 148.) It then finds that a certificate of rehabilitation and executive pardon eliminates or significantly ameliorates those disabilities. ( Id., at p. 149.) We therefore stated: "The ex-prisoner is subject to a variety of penalties because of his criminal conviction which the certificate of rehabilitation can, either directly or indirectly, effectively remove. Therefore, by increasing the waiting period requisite to filing a petition for the certificate, the amendment to section 4852.03 prolongs the time during which ex-prisoners remain subject to such penalties. Hence, we must determine whether, as applied to petitioner, the amendment imposes an additional punishment prohibited by the ex post facto clauses. . . ." ( Sovereign v. People, supra, 144 Cal.App.3d 143 , 149-150.)
After discussing basic ex post facto principles, we rejected the People's argument that the extension of the waiting period did not inflict greater punishment on the defendant. ( Sovereign v. People, supra, 144 Cal.App.3d 143 , 151.) We therefore held that "[t]he ex post facto clause protects the petitioner's opportunity under the former statute to file his petition on the date prescribed by the statute in effect when he completed his prison term and commenced the waiting period." ( Id., at p. 152, fn. omitted.) Accordingly, the ex post facto clause prohibited application of the amended section to persons who commenced the waiting period before the amended version went into effect. ( Id., at p. 152, fn. 2.)
Sovereign concludes: "If denying persons their civil and political rights, disqualifying them from office, excluding them from positions of trust or employment, and revoking their privilege of appearing in the courts constitutes `punishment,' then surely prolonging the time that ex-prisoners remain subject to these penalties constitutes punishment, as well. As earlier noted, this would be precisely the effect of applying the amendment to petitioner herein. Hence we conclude that the trial court properly calculated petitioner's waiting period under the version of section 4852.03 in effect when he completed his term and commenced the waiting period. To have done otherwise would have been a manifest violation of the constitutional prohibitions against ex post facto laws." ( Sovereign v. People, supra, 144 Cal.App.3d 143, 154.) Sovereign thus fully supports the position taken by defendant Harper here.
PEOPLE _ v . CASTELLANOS
In People v. Castellanos, supra, 21 Cal.4th 785, our Supreme Court addressed the issue of whether the sex offender registration requirement constituted punishment for purposes of ex post facto analysis. The court held that it did not: "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 Legislature's 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. We conclude that the sex offender registration requirement imposed by section 290 does not constitute punishment for purposes of ex post facto analysis." ( Id., at p. 796, fn. omitted.) If the sex offender registration requirement is not punishment, it follows that changes in that requirement which increase the waiting period or eliminate the procedure for persons convicted of certain crimes are not punishment.
OTHER RECENT CASES
In People v. Woodson, supra, 76 Cal.App.4th 1051, review granted, the court considered a provision which extended the waiting period before a petitioner could apply for a certificate of rehabilitation. After applying Castellanos and finding that the additional waiting period requirement did not constitute punishment, the court commented on Sovereign: "While the Sovereign court held that retroactive application of the amendment to section 4852.03 violated the constitutional prohibitions against ex post facto laws because the extension of the waiting period constituted punishment, its analysis cannot be reconciled with Castellanos. Accordingly, we conclude that Sovereign is no longer viable." ( Id., at p. 1055.)
People v. Lugas, supra, 76 Cal.App.4th 696, review granted, relies on Kansas v. Hendricks (1997) 521 U.S. 346, a case which is also discussed in Castellanos. Hendricks held that a Kansas statute which provided for civil commitment of sex offenders did not violate ex post facto principles because the proceedings were civil proceedings and because "commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct." ( Kansas v. Hendricks, supra, 521 U.S. 346, 361-362.) The Supreme Court also found that the legislation had no scienter requirement, characterizing the presence or absence of such a requirement as an important element in distinguishing civil and criminal statutes. Finally, it found no deterrent purpose because persons subject to the Act were suffering from mental disorders that made it unlikely that they would be deterred by the threat of confinement. ( Id., at pp. 362- 363.) Since the Act was nonpunitive, ex post facto principles were inapplicable. ( Id., at pp. 370-371.) Additionally, ex post facto principles were inapplicable because "the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes. . . ." ( Id., at p. 371.)
Finally, Lugas relies on the following quotation from Hendricks: "`Although we recognize that a "civil label is not always dispositive," [citation], we will reject the legislature's manifest intent only when a party challenging the statute provides "the clearest proof" that "the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention to deem it `civil.'" [Citation.]' [Citation.]" ( People v. Lugas, supra, 76 Cal.App.4th 696, 704-705, review granted.)
In People v. Acuna, supra, 77 Cal.App.4th 1056, the court held that a 1997 amendment to section 1203.4 which prohibited expungement for convictions of violating section 288 did not violate ex post facto principles. The court relied on Castellanos and held that the amendment was not punitive in intent, nature or effect. Thus, ex post facto principles did not prevent application of the amendment to defendant. ( Acuna, at p. 1059-1060.)
The statutory scheme for obtaining a certificate of rehabilitation is essentially an administrative mechanism which allows a former prisoner to apply for a pardon: "Nothing in the statutory scheme regarding certificates of rehabilitation suggests that any limitation on the opportunity to obtain a certificate is intended primarily to achieve the objectives of criminal punishment, i.e., to increase punishment for or deter others from committing the underlying crimes of which a petitioner was convicted. Instead, a certificate of rehabilitation is formal recognition of socially positive behavior following discharge from custody or release on parole or probation, a first step toward a gubernatorial pardon based upon rehabilitation." ( People v. Lugas, supra, 76 Cal.App.4th 696, 705, review granted.)
The amendment to the statute which extended the waiting period before certain former prisoners could apply for a certificate of rehabilitation was thus a change in procedure which did not constitute an increase in punishment for the past crime. Similarly the amendment which made certain former prisoners ineligible to apply for a certificate of rehabilitation was not a retroactive increase in punishment. Other ways still existed for a former prisoner to apply for a pardon. Although the procedure may have become more difficult, Collins makes it clear that a disadvantage is not enough.
Specifically, Collins holds that ex post facto principles concern retroactive changes in the definition of a crime, or retroactive increases in punishment: "The right to jury trial provided by the Sixth Amendment is obviously a `substantial' one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto clause." ( Collins v. Youngblood, supra, 497 U.S. 37, 51.) Collins specifically rejected earlier cases holding that ex post facto principles apply to changes which alter the defendant's situation to his disadvantage. ( Id., at pp. 48-50.) Thus, as noted above, the issue is whether the statutory amendments here retroactively increased punishment for the prior crime. We agree with Lugas that they did not. "Even if the 1996 amendment of section 4852.13 disadvantaged Lugas by reducing the opportunity for obtaining a certificate of rehabilitation, it does not necessarily follow that the statutory change, as applied to him, violated the constitutional prohibition of ex post facto laws. Lugas has not specified any disability that remains as a result of the application of section 4852.13, as amended in 1996, to his petition, and the consequent denial of the petition, that criminally punishes him for the crimes of which he was convicted." ( People v. Lugas, supra, 76 Cal.App.4th 696, 705, review granted.)
The same principle applies here. Defendant Harper has been disadvantaged by the amendments, but the punishment specified for his former crimes has not been increased. He has merely been prohibited from using the certificate of rehabilitation method to apply for a pardon.
A similar result was recently reached in People v. Shroff (2000) 77 Cal.App.4th 663, review granted (S086060). That case involved section 1203.4, a related procedure for expungement of convictions of probationers. Although the crimes were committed prior to the effective date of the amendment, the court found no violation of ex post facto principles. Although petitioners relied on Sovereign, the court found it to be essentially vitiated by Collins: "[Petitioners'] reliance on pre- Collins cases [citations, including Sovereign] to the effect that the elimination of the right to expungement is an increase in punishment is of little value in current ex post facto analysis under Collins. [Citation.]" ( Shroff, at p. 671.) Applying Collins, the court held that, although the subsequent amendments disadvantaged petitioners, who would otherwise have been able to have their convictions expunged, the court found that the disadvantage did not constitute an increase in the penalty for the crimes they committed. ( Id., at p. 670.) The court thus said: "Nor was the 1997 amendment punishment within the meaning of the constitutional prohibitions against ex post facto laws because it (1) was unrelated to the length or nature of the defendant's incarceration or constructive custody, (2) did not increase imprisonment, forestall parole or extend probation, (3) did not decrease the trial court's discretion to impose the most appropriate sentence for the defendant and (4) involved a collateral matter that did not change the primary effect of the convictions. [Citation.]" ( Id., at pp. 670-671, fn. omitted.) Now that Castellanos has also held that the sex offender registration requirement is not punishment, it is clear that there is no violation of ex post facto principles.
As with the other review granted cases, we cite Shroff only to explain our reasoning. We do not give the case any precedential value. Presumably, defendant Harper's case, like the others, will be granted review pending the Supreme Court's decision in Ansell. The only difference here is our express overruling of our earlier decision in Sovereign.
Based on the foregoing, we agree with Woodson that Castellanos effectively overruled Sovereign. ( People v. Woodson, supra, 76 Cal.App.4th 1051, 1055, review granted.) Since the other recent cases discussed above agree that a sex offender registration requirement is not punishment, or find that a particular statutory amendment is not punitive, we fall into step with them by finding that Sovereign is no longer viable. Since Sovereign was essentially overruled by Castellanos and Collins, the fact that the subsequent amendment disadvantaged defendant Harper is not a sufficient basis for concluding that the amendment increased the punishment for the prior crime. Since Sovereign originated in this district, we exercise our privilege to overrule it as incorrectly decided.
In supplemental briefing, defendant relies on section 3, which states that no part of the Penal Code is retroactive unless expressly so declared. A similar argument was rejected in People v. Lugas, supra, 76 Cal.App.4th 696, 707-709, review granted and People v. Acuna, supra, 77 Cal.App.4th 1056, on grounds that the petition was decided under the law in effect at the time of the decision. We reject defendant Harper's contention for the reasons stated in those cases. (See also, People v. Woodson, supra, 76 Cal.App.4th 1051, 1055, fn. 2, review granted.)
DISPOSITION
The order denying a petition for rehabilitation is affirmed.
We concur:
McKINSTER, J. RICHLI, J.