Opinion
H046971
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. EFRAIN ISRAEL ORTIZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 214752)
In January of 2007, Efrain Israel Ortiz pleaded no contest to misdemeanor battery (Pen. Code, § 242). Ortiz's plea apparently was entered pursuant to a plea agreement that included a defense stipulation that a factual basis existed to find that he committed the offense for the purpose of sexual gratification and that the court would make such a finding and order him to register as a sex offender under former section 290, subdivision (a)(2)(E) (hereafter 290(a)(2)(E)), the predecessor of section 290.006. In May of 2015, Ortiz petitioned for a certificate of rehabilitation and pardon, but the petition was denied on the ground that he was statutorily ineligible to file such a petition. Ortiz appealed to the appellate division of the Superior Court of the County of Santa Clara (appellate division).
All further statutory references are to the Penal Code unless otherwise provided.
In an opinion certified for publication, the appellate division reversed the superior court's denial of the petition. The appellate division held that a misdemeanant subject to discretionary registration as a sex offender under section 290.006, like a misdemeanant subject to mandatory registration under section 290, subdivisions (b) and (c), is eligible to file a petition for a certificate of rehabilitation under section 4852.01, subdivision (b). The appellate division's conclusion was based on "statutory interpretation" and, alternatively, on principles of equal protection.
We determined that transfer of the case to this court appeared necessary to secure uniformity of decision or to settle an important question of law. On this court's own motion and order, the case was transferred to this court for hearing and decision. (See Cal. Rules of Court, rules 8.1002, 8.1008; see also Cal. Rules of Court, rule 8.887(c)(2)(B).)
We now hold that Ortiz was not statutorily eligible to file a petition for a certificate of rehabilitation and pardon and that he failed to establish any equal protection violation with respect to such eligibility. Accordingly, the trial court's order denying Ortiz's petition is affirmed.
I
Procedural History
In the Superior Court of the County of Santa Cruz, case No. F14127, an amended complaint charged Ortiz with violating section 288, subdivision (a) (a felony lewd and lascivious act against a child under the age of 14 years), section 647.6, subdivision (a), (misdemeanor annoying or molesting a child under the age of 18 years), and section 242 (misdemeanor battery). On January 29, 2007, Ortiz pleaded nolo contendere to the misdemeanor battery.
At the sentencing hearing on March 28, 2007, the superior court suspended imposition of sentence and placed Ortiz on 36 months of formal probation. It ordered him to serve 15 days in county jail with credit for two days. The court also required Ortiz to register as a sex offender pursuant to former section 290. It ordered Ortiz to have no contact with minors under the age of 18 unless a responsible adult was present and prohibited Ortiz from entering places where children congregate, such as schools, playgrounds, and video arcades.
By order filed on July 30, 2010, the superior court granted Ortiz's petition for dismissal of the amended complaint pursuant to section 1203.4.
Section 1203.4, subdivision (a), "permits eligible defendants to obtain dismissal of accusations after completing probation. [Citation.]" (People v. Chavez (2018) 4 Cal.5th 771, 776.) " '[S]ection 1203.4 does not, properly speaking, "expunge" the prior conviction. The statute does not purport to render the conviction a legal nullity. Instead, it provides that, except as elsewhere stated, the defendant is "released from all penalties and disabilities resulting from the offense." The limitations on this relief are numerous and substantial . . . .' [Citation.]" (People v. Vasquez (2001) 25 Cal.4th 1225, 1230 (Vasquez).) Certain sex offenses, such as any violation of section 288—including misdemeanor lewd and lascivious conduct—are categorically barred from the potential relief available under section 1203.4, subdivision (a). (§ 1203.4, subd. (b).) Further, "the 'penalties and disabilities' resulting from conviction, from which a probationer may be released pursuant to . . . section 1203.4, do not include nonpenal restrictions or qualifications imposed for public protection . . . ." (Vasquez, supra, at p. 1230.) Even where an accusation has been dismissed pursuant to section 1203.4, a person required to register pursuant to the Sex Offender Registration Act (§§ 290-290.024) must continue to register in accordance with the act, "unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to [s]ection 290.5, or is exonerated pursuant to subdivision (e) of [s]ection 3007.05 of the conviction requiring registration and the person is not otherwise required to register." (§ 290.007, italics added.)
On May 14, 2015, Ortiz filed a petition for a certificate of rehabilitation and pardon pursuant to former section 4852.01, subdivision (c), in the Santa Clara County superior court. The petition was supported by letters from various persons, including Ortiz himself.
The People filed opposition to the petition. They indicated that Ortiz's plea had been entered as part of a plea agreement, which involved (1) the dismissal of two other counts (§§ 288, subd. (a), 647.6, subd. (a)), (2) a defense stipulation that there was a factual basis for a finding that the battery (§ 242) to which Ortiz was pleading no contest had been committed for the purpose of sexual gratification, and (3) an agreement that the court would make such a finding and order Ortiz to register as a sex offender for life. (See former § 290(a)(2)(E).) In their opposition, the People asserted, among other things, that Ortiz was statutorily ineligible to file a petition for a certificate of rehabilitation, in part because section 242 was not among the offenses then listed in section 290, subdivision (c) (hereafter 290(c)). The People contended that consequently Ortiz was ineligible to file such a petition because he had not been "convicted of a misdemeanor violation of any sex offense specified in Section 290" (former § 4852, subd. (c)).
The People's opposition papers stated that Ortiz had admitted the following facts, among others. Ortiz was a 44-year-old elementary school teacher and Kung Fu instructor. He gave private lessons to an 11-year-old girl to whom he taught a "move" that involved grabbing his groin. "When she grabbed his private parts, [Ortiz] used his 'Yin Breathing' method so that he would not become aroused." When Ortiz and the girl went to the movies, he touched her leg and practiced his " 'Yin Breathing' method," which he used "to control being sexually aroused and . . . to control his sperm from coming out." In his written response to the People's opposition, Ortiz did not dispute those facts.
Because of this case's procedural posture, the appellate record does not contain the reporter's transcripts of the plea or sentencing hearings or the presentence probation report.
The superior court agreed with the People's claim of ineligibility, concluding that Ortiz could not apply for a certificate of rehabilitation pursuant to former section 4852.01, subdivision (c), because section 242 was not listed in section 290(c). Ortiz appealed.
The appellate division's decision reversed the superior court's order denying Ortiz petition for a certificate of rehabilitation. It directed the trial court to exercise its discretion to consider whether Ortiz had "otherwise demonstrated his entitlement to a certificate of rehabilitation under section 4852.01, consistently [sic] with [its] opinion."
II
Discussion
A. Governing Law
1. Petition for a Certificate of Rehabilitation and Pardon
The reference to section 290 in former section 4852.01, subdivision (c), was added in 1994. (Stats. 1994, ch. 863, § 3.) In 2015—when Ortiz filed his petition for a certificate of rehabilitation and pardon and when the court denied it—former section 4852.01, subdivision (c), provided: "Any person convicted of a felony or any person who is convicted of a misdemeanor violation of any sex offense specified in [s]ection 290, the accusatory pleading of which has been dismissed pursuant to [s]ection 1203.4, may file a petition for certificate of rehabilitation and pardon pursuant to the provisions of this chapter if the petitioner has not been incarcerated in any prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading and is not on probation for the commission of any other felony, and the petitioner presents satisfactory evidence of five years residence in this state prior to the filing of the petition." (Stats. 2014, ch. 280, § 3, italics added.) The language of former subdivision (c) continues with no substantive changes in subdivision (b) of section 4852.01.
Subdivision (b) of section 4802.01 states: "A person convicted of a felony or a person who is convicted of a misdemeanor violation of any sex offense specified in [s]ection 290, the accusatory pleading of which has been dismissed pursuant to [s]ection 1203.4, may file a petition for certificate of rehabilitation and pardon pursuant to the provisions of this chapter if the petitioner has not been incarcerated in a prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading, is not on probation for the commission of any other felony, and the petitioner presents satisfactory evidence of five years' residence in this state prior to the filing of the petition." (Italics added.)
Before its 1994 amendment, section 4852.01 did not apply to any persons convicted of misdemeanors. (Stats. 1976, ch. 434, § 2.) In Newland v. Board of Governors (1977) 19 Cal.3d 705 (Newland), the California Supreme Court explained that "[t]he unavailability of certificates of rehabilitation to misdemeanants probably stems from the fact that such certificates served primarily to restore civil rights to those who, having been convicted of felonies, had lost those rights [citation]; conviction of a misdemeanor entailed no loss of civil rights." (Id. at p. 712.) Thus, impliedly there was a rational basis for treating felons and misdemeanants differently with respect to their eligibility to file petitions for rehabilitation and pardon. In Newland, the appellant did not challenge former section 4852.01's differing treatment of felons and misdemeanants.
In Newland, the Board of Governors of the California Community Colleges had rejected Newland's application for a community college credential because an Education Code section "barred issuance of a credential to anyone convicted of a 'sex offense' as defined," and the bar applied to Newland's conviction of a misdemeanor violation of former section 647, subdivision (a). (Newland, supra, 19 Cal.3d at p. 707.) However, a statutory amendment of the Education Code section "remove[d] the bar for anyone found fit to teach provided [the person] met three conditions: [the person] had applied for or obtained a certificate of rehabilitation under . . . [former] section 4852.01, [the person's] probation had been terminated, and the information or accusation had been dismissed under . . . section 1203.4." (Ibid.) Newland argued that the Education Code section's certificate-of-rehabilitation requirement denied "equal protection of the law [to misdemeanants] because it discriminate[d] in favor of felons and against misdemeanants [with respect to obtaining a community college credential]." (Id. at pp. 710-711.) The California Supreme Court agreed. (Id. at pp. 708, 713-713.) It held that "the statutory requirement for a certificate of rehabilitation cannot constitutionally be applied to deny [the] plaintiff, a misdemeanant, a community college credential." (Id. at p. 708.)
Section 4852.01 was amended in 1997 to expand the list of persons categorically barred from filing a petition for a certificate of rehabilitation to include those convicted of certain sex offenses, including section 288. (Stats. 1997, ch. 61, § 2.) The bar is now set forth in section 4852, subdivision (c) (former subd. (d)). As amended in 1997, section 4852.01 made clear that the Governor still had the right to pardon those categorically barred sex offenders if there were "extraordinary circumstances." (Stats. 1997, ch. 61, § 2.) This clarification is now contained in subdivision (d) (former subd. (e)).
Even though eligible misdemeanants "convicted of a misdemeanor violation of any sex offense specified in [s]ection 290" (§ 4852.01, subd. (b)) may file a petition for a certificate of rehabilitation and pardon, this does not mean that they will necessarily obtain a certificate. The court is prohibited from granting a certificate of rehabilitation to a person convicted of any offense specified in section 290 "if the court determines that the petitioner presents a continuing threat to minors of committing any of the offenses specified in [s]ection 290." (§ 4852.13, subd. (b).) If (1) this prohibition does not apply, (2) the petitioner otherwise satisfies the prerequisites for obtaining a certificate, and (3) the court finds following a hearing that "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)), then "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." (Ibid., italics added.) That order constitutes the "certificate of rehabilitation." (Ibid.)
The requisite period of rehabilitation for sex offenders who were "convicted of committing an offense or attempted offense for which sex offender registration is required pursuant to [s]ection 290" and are eligible to file a petition for a certificate of rehabilitation generally is 10 years, which includes five years of residence in this state—immediately preceding the date of filing the petition—plus "[a]n additional five years." (§ 4852.03, subd. (a)(2), see § 4852.06.) Section 4852.22 provides: "Except in a case requiring registration pursuant to [s]ection 290, a trial court hearing an application for a certificate of rehabilitation before the applicable period of rehabilitation has elapsed may grant the application if the court, in its discretion, believes relief serves the interests of justice."
In addition, "[a] district attorney in either the county where the conviction was obtained or the county of residence of the recipient of the certificate of rehabilitation may petition the superior court to rescind a certificate if it was granted for any offense specified in [s]ection 290." (§ 4852.13, subd. (c).) The court must rescind the certificate if it finds that the petitioning district attorney "has demonstrated by a preponderance of the evidence that the person who has received the certificate presents a continuing threat to minors of committing any of the offenses specified in [s]ection 290 . . . ." (Ibid.)
2. Sex Offender Registration
"California law has long required persons convicted of certain specified sex crimes, including commission of a lewd act on a child under 14 [years of age] [citation] to register as sex offenders as long as they live or work in California. (§ 290, subds. (b), (c).) If the conviction is for an offense other than those automatically requiring registration, the court may nonetheless exercise its discretion to impose a registration requirement if the court finds the offense was sexually motivated or compelled, and that registration is justified by the defendant's risk of reoffense. (§ 290.006; see People v. Garcia (2008) 161 Cal.App.4th 475, 485; cf. People v. Hofsheier (2006) 37 Cal.4th 1185, 1196-1197 (Hofsheier), overruled on other grounds, Johnson v. Department of Justice (2015) 60 Cal.4th 871.)" (People v. Mosley (2015) 60 Cal.4th 1044, 1048, fn. omitted (Mosley).) The Sex Offender Registration Act, which now includes "[s]ections 290 to 290.024, inclusive" (§ 290, subd. (a), "was enacted to prevent recidivism of sex offenders and facilitate their surveillance by police." (Johnson v. Department of Justice, supra, at p. 874 (Johnson).)
In early 2007—when Ortiz entered his no contest plea to battery and when the court granted probation—former section 290(a)(2)(E) provided the court with the discretionary authority to require Ortiz to register as a sex offender. Former section 290, subdivision (a)(2) provided in pertinent part: "The following persons shall be required to register pursuant to paragraph (1): [¶] . . . [¶] [E] Any person ordered by any court to register pursuant to this section for any offense not included specifically in this section if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." (Stats. 2006, ch. 337, § 11, italics added.)
Effective October 13, 2007, former section 290 was repealed and a new section 290—which no longer included a discretionary registration provision—and a new section 290.006—which set forth the discretionary registration provision—were added. (Stats. 2007, ch. 579, §§ 7, 8, 14, 53.) As added, section 290.006 provided: "Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of [s]ection 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." (Stats. 2007, ch. 579, § 14, italics added.) This language continues in subdivision (a) of section 290.006.
Operative January 1, 2021, a restructured sex offender registration system will require an adult offender to register for a minimum of 10 or 20 years or for life, depending upon the offender's designated "tier." (See Stats. 2017, ch. 541, § 4; Stats. 2018, ch. 423, § 52.) Persons subject to discretionary registration will be required to "register as a tier one offender . . . , unless the court finds the person should register as a tier two or tier three offender and states on the record the reasons for its finding." (See Stats. 2017, ch. 541, § 4.)
As amended in 2012, and during 2015 when Ortiz filed a petition for a certificate of rehabilitation and pardon pursuant to former section 4852.01, section 290(c) specified multiple statutory offenses for which a person was required to register as a sex offender, but the list did not include section 242. (See Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 35, § 9, p. 103, eff. Nov. 7, 2012.) The list of offenses specified in section 290(c) has been amended since 2015, but it still does not include section 242.
3. Relief from Duty to Register as a Sex Offender
In 2015, when Ortiz filed a petition for a certificate of rehabilitation and pardon and when the petition was denied, section 290.007 provided: "Any person required to register pursuant to any provision of the [Sex Offender Registration] Act shall register in accordance with the Act, regardless of whether the person's conviction has been dismissed pursuant to [s]ection 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5." (Stats. 2007, ch. 579, § 15.) Under section 290.5, some sex offenders subjected to mandatory registration are relieved of their duty to register if they obtain a certificate of rehabilitation and are not in custody, on parole, or on probation. (§ 290.5, subd. (a)(1).) For many offenders convicted of crimes for which registration is statutorily mandated, the obtaining of a certificate of rehabilitation does not alone relieve them of their duty to register, and they must obtain a full gubernatorial pardon to secure relief from registration. (§ 290.5, subds. (a)(2)(A)-(a)(2)(W), (b).)
Effective January 1, 2019 (Stats. 2018, ch. 979, § 1.), section 290.007 also relieves a person of the obligation to register as a sex offender if the person is "exonerated pursuant to subdivision (e) of [s]ection 3007.05." (§ 290.007.) Under section 3007.05, subdivision (e), " 'exonerated' means the person has been convicted and subsequently one of the following occurred: [¶] (1) A writ of habeas corpus concerning the person was granted on the basis that the evidence unerringly points to innocence, or the person's conviction was reversed on appeal on the basis of insufficient evidence. [¶] (2) A writ of habeas corpus concerning the person was granted pursuant to Section 1473, either resulting in dismissal of the criminal charges for which the person was incarcerated or following a determination that the person is entitled to release on the person's own recognizance, or to bail, pending retrial or pending appeal. [¶] (3) The person was given an absolute pardon by the Governor on the basis that the person was innocent." (Italics added.) In this appeal, we do not address whether section 290.007 may constitutionally limit the effect of a full, unconditional gubernatorial pardon that is not based on the person's innocence. (See Cal. Const., art. V, § 8, subd. (a); People v. Ansell (2001) 25 Cal.4th 868, 872-873, 877 (Ansell); see also Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897, 897 (en banc) ["Under the California Constitution, the power to grant clemency to a person convicted of crime is an executive power, and its exercise often, and permissibly, rests on extrajudicial considerations"].)
This version of section 290.5 is slated for repeal as of July 1, 2021. (§ 290.5, subd. (c).) A new version of section 290.5, based on a new tiered sex offender registration system (see ante, fn. 8), will be operative as of July 1, 2021. (Stats. 2017, ch. 541, § 12.) It will allow tier one, tier two, and certain tier three offenders to petition the superior court for termination from the sex offender registry after specified time periods, as provided. (Ibid.)
4. Pardons
"The certified copy of a certificate of rehabilitation transmitted to the Governor [constitutes] an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein . . . ." (§ 4852.16, subd. (a); see § 4852.14 [duty of the clerk of the court to immediately transmit certified copies of certificate].) However, there is an exception to the foregoing: "[P]ursuant to Section 8 of Article V of the Constitution, the Governor shall not grant a pardon to any person twice convicted of [a] felony, except upon the written recommendation of a majority of the judges of the Supreme Court." (§ 4852.16, subd. (a).) "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 . . . ." (§ 4852.17, italics added.)
California Constitution, article V, section 8, subdivision (a), states: "Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring."
Those rights include, but are not limited to, "(1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and [s]ections 17800 and 23510 and Chapter 2 (commencing with [s]ection 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon." (§ 4852.17.)
The statutory procedure for obtaining a certificate of rehabilitation and pardon provides "an additional, but not an exclusive, procedure for the restoration of rights and application for pardon." (§ 4852.19.) A person may also directly apply for a gubernatorial pardon. "When an application is made to the Governor for pardon . . . , the Governor . . . may require the judge of the court before which the conviction was had, or the district attorney by whom the action was prosecuted, to furnish the Governor . . . , without delay, with a summarized statement of the facts proved on the trial, and of any other facts having reference to the propriety of granting or refusing said application, together with his or her recommendation for or against the granting of the same and his or her reason for such recommendation." (§ 4803; see Cal. Const., art. V, § 8, subd. (a).) "Whether a certificate of rehabilitation and automatic application for a pardon issues under section 4852.01 et seq., or whether a pardon is sought by direct application under section 4800 et seq., certain civil rights and privileges are restored if the Governor acts favorably on the request." (Ansell, supra, 25 Cal.4th at p. 876, fn. omitted.) B. Analysis
"In all cases in which a full pardon has been granted by the Governor of this state or will hereafter be granted by the Governor to a person convicted of an offense to which the pardon applies, it shall operate to restore to the convicted person, all the rights, privileges, and franchises of which he or she has been deprived in consequence of that conviction or by reason of any matter involved therein; provided, that nothing herein contained shall abridge or impair the power or authority conferred by law on any board or tribunal to revoke or suspend any right, privilege or franchise for any act or omission not involved in the conviction; provided further, that nothing in this article shall affect any of the provisions of the Medical Practice Act (Chapter 5 (commencing with [s]ection 2000) of Division 2 of the Business and Professions Code) or the power or authority conferred by law on the Board of Medical Examiners therein, or the power or authority conferred by law upon any board that issues a certificate which permits any person or persons to apply his or her or their art or profession on the person of another." (§ 4853, italics added.) In addition, "[i]n the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and [s]ections 17800 and 23510 and Chapter 2 (commencing with [s]ection 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon." (§ 4854.)
Notwithstanding any other provision of law, the Governor retains the right to pardon persons convicted of certain sex crimes who are ineligible to seek dismissal of an accusation under section 1203.4 or ineligible to file a petition for a certificate of rehabilitation and pardon, if there are extraordinary circumstances. (§§ 1203.4, subd. (g); 4852.01, subd. (d).)
1. Statutory Construction
" 'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent . . . to effectuate the law's purpose.' [Citation.] 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) "We do not examine that language in isolation, but in the context of the statutory framework as a whole . . . ." (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)
Ordinarily, "[i]f the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.]" (People v. Robles (2000) 23 Cal.4th 1106, 1111.) " 'It is a settled principle in California law that "[w]hen statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it." [Citation.]' [Citation.] This principle is but a recognition that courts ' "must follow the language used and give to it its plain meaning, whatever may be thought of the wisdom, expediency, or policy of the act, even if it appears probable that a different object was in the mind of the legislature." ' [Citation.]" (People v. Weidert (1985) 39 Cal.3d 836, 843.)
Thus, "[a] court may not rewrite a statute, either by inserting or omitting language, to make it conform to a presumed intent that is not expressed. [Citations.]" (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73-74.) Stated another way, "we may not broaden or narrow the scope of [a statutory] provision by reading into it language that does not appear in it or reading out of it language that does." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545; see Code Civ. Proc., § 1858.) "A court may not, 'under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.' [Citation.]" (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992.)
"Only when the statute's language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) The language of a statute is ambiguous "when the words of the statute are susceptible to more than one reasonable meaning, given their usual and ordinary meaning and considered in the context of the statute as a whole." (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184.)
Ortiz argues that under the plain language of section 4852.01, he was entitled to file a petition for a certificate of rehabilitation and pardon. He reasons that section 290.006 is incorporated into section 290, citing section 290, subdivision (a), which defines the Sex Offender Registration Act to include section 290.006. He emphasizes that section 4852.01, subdivision (b) (former subd. (c)), refers to a misdemeanor violation of any sex offense "specified in section 290," not "section 290, subdivision (c)." Ortiz maintains that "the term 'section 290' was meant to apply to those misdemeanor crimes for which registration was ordered [by the court]." He also points out that subdivision (d) of section 4852.01 does not categorically bar persons who were required by a court to register from filing a petition for a certificate of rehabilitation and pardon. We are not persuaded by Ortiz's reasoning.
We "start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) In 1994, the Legislature made a narrow group of misdemeanants eligible to file a petition for rehabilitation and pardon under section 4852.01, which theretofore had applied to only felons. (Compare Stats. 1994, ch. 863, § 3 with Stats. 1976, ch. 434, § 2.) It made persons "convicted of a misdemeanor violation of any sex offense specified in [s]ection 290" eligible to file a petition if they met other specified criteria. (Stats. 1994, ch. 863, § 3.)
Also in 1994, former section 290 was amended to include a discretionary registration requirement. (Stats. 1994, ch. 867, § 2.7 [former 290(a)(2)(E)]; see People v. Picklesimer (2010) 48 Cal.4th 330, 342 (Picklesimer).) As amended in 1994, former section 290 required the following persons to register: (1) persons convicted of specified California sex crimes, or attempts to commit those crimes, in a California, federal, or military court; (2) persons convicted of equivalent crimes, that is "any offense, which if committed or attempted in this state, would have been punishable as one or more of the [enumerated] offenses"; (3) mentally disordered sex offenders; and (4) persons who had committed "any offense not included specifically in [section 290 ]" if the trial court found "at the time of conviction that the person committed the offense a s result of sexual compulsion or for purposes of sexual gratification." (Stats. 1994, ch. 867, § 2.7, italics added.)
Consequently, following those 1994 amendments, it was reasonable to read the language of former 4852.01, subdivision (c) (now (b))—"any sex offense specified in [s]ection 290"—as applying to only the sex offenses specifically enumerated in former section 290. (See Stats. 1994, ch. 867, § 2.7.) We see nothing in the legislative history of the 1994 amendment of section 4852.01 to suggest any other legislative intention. (See Assem. Floor Analysis of Assem. Bill No. 3456 (1993-1994 Reg. Sess.) as amended August 26, 1994, p. 2.) Ortiz has not cited any case in which a court determined that the language at issue was ambiguous and construed it to encompass unspecified offenses for which a court had ordered a defendant to register under former section 290(a)(2)(E).
Even immediately before the 2007 reorganization of the sex offender registration law, an offense subject to discretionary registration under former section 290(a)(2)(E) was an "offense not included specifically in . . . section [290]." (Stats. 2006, ch. 337, § 11.) Read in context, section 4852.01's language "any sex offense specified in [s]ection 290" was never susceptible of a reasonable interpretation that it applied to unspecified offenses subjected to registration under former section 290(a)(2)(E).
Ortiz also maintains that "[n]othing suggests that the legislative purpose in acting in 2007 [to reorganize sex offender registration law and relocate the discretionary registration provisions in section 290.006] was . . . to exclude individuals like [him] from seeking a certificate of rehabilitation." Ortiz overlooks that section 290.006 has always applied to only convictions of offenses "not included specifically in subdivision (c) of Section 290." (§ 290.006, subd. (a), italics added; Stats. 2007, ch. 579, § 14.) "The statutory scheme [of the Sex Offender Registration Act] creates two categories of crimes: those listed in section 290, subdivision (c) (to which a registration requirement attaches automatically) and all others (for which registration is contingent on the trial court making specific additional findings under § 290.006)." (Picklesimer, supra, 48 Cal.4th at p. 345.) We have no reason to believe that the Legislature intended the phrase "subdivision (c) of Section 290" in section 290.006 to mean something other than its plain meaning. As indicated, " '[t]his court has no power to rewrite the statute so as to make it conform to a presumed intention [that] is not expressed.' [Citations.]" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.)
"The Legislature is presumed to be aware of all laws in existence when it passes or amends a statute. [Citations.] ' "The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended." [Citations.]' [Citations.]" (In re Greg F. (2012) 55 Cal.4th 393, 407.) As part of its 2007 legislative overhaul of the sex offender registration law, the Legislature made no changes to section 4852.01. Section 4852.01 has been amended three times since 2007, including once before Ortiz petitioned for rehabilitation and pardon. (See Stats. 2014, ch. 280, § 3; Stats. 2015, ch. 378, § 6; Stats. 2018, ch. 423, § 109.) If the Legislature wanted to make persons required to register under section 290.006 eligible to petition for a certificate of rehabilitation and pardon, it knew how to amend section 4852.01 to refer to the Sex Offender Registration Act as a whole or section 290.006 in particular. (Cf. § 290.06, subd. (c) ["For purposes of this section, 'eligible person' means a person who was convicted of an offense that requires him or her to register as a sex offender pursuant to the Sex Offender Registration Act . . . "]; Stats. 2018, ch. 423, § 52, operative Jan. 1, 2021 ["the person was subsequently convicted of committing an offense for which the person was ordered to register pursuant to [s]ection 290.006"]; Stats. 2017, ch. 541, § 14, operative July 1, 2021 ["a person convicted of committing an offense or attempted offense for which sex offender registration is required pursuant to [s]ections 290 to 290.024, inclusive"].)
Ortiz makes the conclusory argument that if this court finds the language at issue in section 4852.01 ambiguous, we should read it in conjunction with the text and legislative history of section 290.5, which he maintains supports his construction. It is an established principle of statutory construction that "language must . . . be construed in the context of the statute as a whole and the overall statutory scheme. [Citation.]" (People v. Rizo (2000) 22 Cal.4th 681, 685.) Nevertheless, we are not convinced that the language at issue in section 4852.01 is ambiguous or that section 290.5 assists our statutory construction.
While section 290.5 concerns relief from the duty to register as a sex offender, it is not part of the Sex Offender Registration Act (see § 290, subd. (a)) or the laws governing a petition for a certificate of rehabilitation and pardon. Most significantly, section 290.5 concerns the effect of a certificate of rehabilitation after it has been obtained. Subdivision (a)(1) of section 290.5 provides that "[a] person required to register under [s]ection 290 for an offense not listed in paragraph (2), upon obtaining a certificate of rehabilitation . . . shall be relieved of any further duty to register under [s]ection 290 if he or she is not in custody, on parole, or on probation." (Italics added.) Subdivision (a)(2) of section 290.5 provides that "[a] person required to register under [s]ection 290, upon obtaining a certificate of rehabilitation . . . shall not be relieved of the duty to register under [s]ection 290, or of the duty to register under [s]ection 290 for any offense subject to that section of which he or she is convicted in the future, if his or her conviction is for [certain specified] offenses . . . ." (Italics added.) Section 290.5 does not in any way imply that a person in Ortiz's situation is eligible to file a petition for a certificate of rehabilitation under section 4852.01.
"To justify departing from a literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them. [Citation.]" (In re D.B. (2014) 58 Cal.4th 941, 948.) " ' "It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." ' [Citations.]" (Younger v. Superior Court (1978) 21 Cal.3d 102, 113.) Thus, for example, "words will not be given their literal meaning when to do so would evidently carry the operation of the enactment far beyond the legislative intent and thereby make its provisions apply to transactions never contemplated by the legislative body [citation]." (People v. Davenport (1939) 13 Cal.2d 681, 685-686.) Ortiz has not argued or shown that a literal interpretation of section 4852.01's language at issue—"a person who is convicted of a misdemeanor violation of any sex offense specified in [s]ection 290"—would be demonstrably contrary to legislative intent or result in absurd consequences that the legislature could not have possibly intended.
Ortiz cites Mosley in support of his proposed statutory construction, but it does not aid him. Mosley was convicted of misdemeanor assault and ordered to register as a sex offender under section 290.006. (Mosley, supra, 60 Cal.4th at p. 1049.) Mosley sought to avoid the registered sex offender residency restrictions under section 3003.5, subdivision (b) (hereinafter 3003.5(b)), which applied to "any person for whom registration is required pursuant to [s]ection 290." Mosley insisted that section 3003.5(b) applied to him. (Mosley, supra, at p. 1049.) Ortiz now suggests section 3003.5(b)'s language is similar to the language at issue in section 4852.01.
However, in Mosley, the California Supreme Court "confront[ed] a single, narrow issue" under Apprendi v. New Jersey (2000) 530 U.S. 466, which had held that "the Sixth Amendment generally requires a jury to find 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum.' [Citation.]" (Mosley, supra, 60 Cal.4th at p. 1048.) Mosley argued that "the registration order [was] invalid under Apprendi because the trial judge, and not a jury, made the predicate factual findings." (Id. at p. 1049.) The Supreme Court found no need to "decide [the] threshold issue of statutory construction in order to resolve the narrow Apprendi issue before [it]." (Ibid.) The court concluded that even if it assumed that section 3003.5(b) applied to Mosley, Apprendi did not invalidate his registration order. (Mosley, supra, at p. 1049.)
In any case, the language of section 3003.5(b) is significantly different than the language at issue in section 4852.01. Ortiz simply was not convicted of "any sex offense specified in section 290." (§ 4852.01, subd. (b).) As a matter of statutory construction, misdemeanants required to register as sex offenders under the discretionary authority of section 290.006 are not permitted to file a petition for a certificate of rehabilitation and pardon.
2. Equal Protection
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike. [Citation.]" (City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432, 439.) California's Constitution also safeguards the right not to be "denied equal protection of the laws." (Cal. Const., art. I, § 7.) "Though [the California Supreme Court's] analysis of state constitutional requirements sometimes deviates from how comparable federal requirements are analyzed, [the court's] precedent has not distinguished the state and federal guarantees of equal protection for claims arising from allegedly unequal consequences associated with different types of criminal offenses. [Citations.]" (People v. Chatman (2018) 4 Cal.5th 277, 287 (Chatman).)
"The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, ' "[t]he 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." ' [Citation.] '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.]" (People v. Brown (2012) 54 Cal.4th 314, 328.)
"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." ' [Citation.]" (Johnson, supra, 60 Cal.4th at p. 881.) "We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly situated in all material respects, we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose. [Citation.]" (Chatman, supra, 4 Cal.5th at p. 289.)
" '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, supra, 60 Cal.4th at p. 881.)
Ortiz argues that it is undisputed that he, as a person required to register under the courts' discretionary authority, is "similarly situated to sex offenders whose registration is mandatory" under statute since under current law "both groups must register for life, unless [they are] granted a certificate of rehabilitation." He frames the issue as whether a rational basis exists for unequal treatment with respect to their eligibility to file a petition for a certificate of rehabilitation. The People agree that the two groups are similarly situated and that rational basis review applies.
We begin with the first prerequisite to a meritorious equal protection claim and decline to accept that the People's concession that the two groups are similarly situated. For one thing, sex offenders subject to mandatory registration under section 290 are not categorically eligible to petition for a certificate of rehabilitation and pardon.
As indicated, since a 1997 amendment of section 4852.01, some sex offenders subject to mandatory registration are categorically barred from filing such a petition. (Stats. 1997, ch. 61, § 2; see In re Alva (2004) 33 Cal.4th 254, 265, fn. 4 ["Under a 1997 amendment to section 4852.01 (Stats.1997, ch. 61, § 2), those convicted of certain sex offenses against children . . . are ineligible for certificates"].) "According to the legislative history [of the statutory amendment], the change affect[ed] those individuals who are least likely to obtain certificates of rehabilitation in the superior court, and who are most likely to waste public resources attempting to obtain such relief." (Ansell, supra, 25 Cal.4th at p. 890.) Section 4852.01, subdivision (c), now states: "This chapter does not apply to . . . persons convicted of a violation of [s]ection 269, subdivision (c) of [s]ection 286, subdivision (c) of [s]ection 287, [s]ection 288, [s]ection 288.5, [s]ection 288.7, subdivision (j) of [s]ection 289, or subdivision (c) of former [s]ection 288a . . . ."
At the time Ortiz filed the petition for a certificate of rehabilitation and pardon, former section 4852.01, subdivision (d), provided in pertinent part: "This chapter shall not apply to . . . 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 . . . ." (Stats. 2014, ch. 280, § 3.) A 2015 amendment made nonsubstantive changes to that provision, redesignating former subdivision (d) as subdivision (c) and substituting "does not" for "shall not." (Stats. 2015, ch.378, § 6.) In 2018, section 4852.01, subdivision (c), was amended to reflect that former 288a had been renumbered as section 287. (Stats.2018, ch. 423, § 109.)
Secondly, the obtaining of a certificate of rehabilitation does not alone entitle a sex offender subject to mandatory registration to relief from the duty to register. Section 290.5, subdivision (a)(2), states in pertinent part: "A person required to register under [s]ection 290, upon obtaining a certificate of rehabilitation under Chapter 3.5 (commencing with [s]ection 4852.01) of Title 6 of Part 3, shall not be relieved of the duty to register under Section 290 . . . if his or her conviction is for one of [a long list of specified] offenses" (italics added), including a number of sex offenses against children. As to those offenders, section 290.5 generally provides that they "shall not be relieved of the duty to register until that person has obtained a full pardon . . . ." (§ 290.5, subd. (b)(1).)
Ortiz has made no effort to show that he is similarly situated to any subset of sex offenders subject to mandatory registration who are eligible to petition for a certificate of rehabilitation under section 4852.01. Ortiz has not sought to establish that he is not similarly situated to sex offenders convicted of a lewd and lascivious act under section 288, who are categorially barred from petitioning for a certificate of rehabilitation and pardon. (§ 4852.01, subd. (c).) Even a person convicted of a misdemeanor lewd and lascivious act in violation of section 288, subdivision (c), is categorically barred from filing a petition for a certificate of rehabilitation. (§ 4852.01, subd. (c).)
Ortiz has made no attempt to show, for example, that he is similarly situated to an offender convicted of misdemeanor sexual battery (§ 243.4, subd. (e)) or misdemeanor annoying or molesting a child under the age of 18 years (§ 647.6, subd. (a)), which are subject to mandatory registration (§ 290, subd. (c)). Neither of those offenses is one of the categorically barred offenses specified in section 4852.01, subdivision (c). In addition to having "the specific purpose of sexual arousal, sexual gratification, or sexual abuse," the perpetrator of misdemeanor sexual battery must touch an "intimate part of another person" and the touching must be "against the will of the person touched." (§ 243.4, subd. (e)(1); see 243.4, subds. (e)(2), (g)(1).) But misdemeanor sexual battery is not inherently an offense against children. Persons convicted of misdemeanor sexual battery are relieved of the duty to register for the offense if they obtain a certificate of rehabilitation. (See § 290.5, subds. (a)(1), (a)(2)(C).) Section 647.6, subdivision (a)(1), makes "[e]very person who annoys or molests any child under 18 years of age" guilty of a misdemeanor. " '[T]he acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children.' " (In re Gladys R. (1970) 1 Cal.3d 855, 867-868 [former § 647a, the statutory predecessor to § 647.6]; see People v. Lopez (1998) 19 Cal.4th 282, 289-290 (Lopez).) However, a violation of "section 647.6, subdivision (a), does not require a touching [citation]." (Lopez, supra, at p. 290, italics added.)
"Any touching of a child under the age of 14 violates [section 288], even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim. [Citation.]" (Lopez, supra, 19 Cal.4th at p. 289.) "[S]ection 288 requires the defendant to either touch the body of a child or willfully cause a child to touch her own body, the defendant's body, or the body of someone else. [Citation.]" (People v. Lopez (2010) 185 Cal.App.4th 1220, 1229.) It is not necessary that the perpetrator touch an "intimate body part" of the child. (People v. Martinez (1995) 11 Cal.4th 434, 442.) "Consent, or a reasonable good faith belief in the age of a child to give consent, are not defenses to crimes charged under section 288. [Citation.]" (People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7; see People v. Soto (2011) 51 Cal.4th 229, 245, 247-248.)
Further, Ortiz has failed to demonstrate that no rational basis existed for the different treatment of the two groups that he compares with respect to their eligibility to petition for certificate of rehabilitation relief. Ortiz merely makes the conclusory assertion that there is no rational basis to deny eligibility to file a petition to misdemeanants who are required by courts, in the exercise of their discretion, to register as sex offenders (see § 290.006) while permitting sex offenders mandated by statute to register to file such a petition.
The People counter that the Legislature could have rationally "concluded that offenders subject[ed] to discretionary sex offender registration should not receive the benefit of two individualized [judicial] hearings to determine their registration status," one at the time of their conviction to decide whether they should be ordered to register in the first place and a second to hear a petition for a certificate of rehabilitation. Ortiz answers that there is no "individualized determination" where, as in his case, discretionary registration was imposed pursuant to a plea bargain.
Ortiz overlooks the guiding principle that a classification subject to rational basis review is "presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citations.]" (Chatman, supra, 4 Cal.5th at p. 289.) "A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. . . . A statute is presumed constitutional [citation] and '[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it[]' [citation], whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it ' "is not made with mathematical nicety or because in practice it results in some inequality." ' [Citations.]" (Heller v. Doe (1993) 509 U.S. 312, 320-321.) Courts " 'must accept any gross generalizations and rough accommodations that the Legislature seems to have made.' [Citation.]" (Johnson, supra, 60 Cal.4th at p. 887.)
Further, it is not evident from the record before us that the trial court did not make a finding that Ortiz's battery (§ 242) was committed "as a result of sexual compulsion or for purposes of sexual gratification." (Stats. 2006, ch. 337, § 11 [former § 290(a)(2)(E)]; see § 290.006.) Rather, it appears that Ortiz pleaded no contest to battery with the understanding that the trial court would make the requisite findings and require him to register as a sex offender. In any case, discretionary registration is predicated on the circumstances that a defendant committed criminal conduct as a result of sexual compulsion or for purposes of sexual gratification and that the defendant's particular conduct warrants lifetime registration. (See § 290.006; People v. Hofsheier supra, 37 Cal.4th at p. 1197.) The well-established purpose of sex offender registration is " ' " 'to assure that persons convicted of the crimes . . . shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]' " ' [Citations.]" (Hofsheier, supra, at p. 1196.)
In Chatman, the California Supreme Court recognized that "adjudicating eligibility [for a certificate of rehabilitation and pardon] depends on the state's expenditure of significant judicial and executive branch resources" (Chatman, supra, 4 Cal.5th at p. 283) and is a "costly benefit." (Ibid.) The court also declared that "[p]reserving the government's financial integrity and resources is a legitimate state interest. [Citations.]" (Id. at p. 290.)
In Chatman, the court observed: "[E]ligible petitioners [are provided] 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.)" (Chatman, supra, 4 Cal.5th at p. 290.)
The issue before the California Supreme Court in Chatman was whether the differing eligibility criteria for filing a petition for rehabilitation and pardon that applied to former probationers and former prisoners under section 4852.01 survived an equal protection challenge under the federal and state Constitutions. (Chatman, supra, 4 Cal.5th at p. 282.) The court observed: "While former probationers and former prisoners are both eligible, former probationers face different eligibility criteria after they have been granted relief under Penal Code section 1203.4, which allows former probationers to move for their conviction to be dismissed upon successful completion of probation terms. Once former probationers receive the benefit of having their convictions dismissed under section 1203.4, another provision—section 4852.01—renders them ineligible for a certificate of rehabilitation if they are subsequently incarcerated. (See § 4852.01, subd. (b).) In contrast, former prisoners—whether subsequently incarcerated or not—face no such restriction. (See id., subd. (a).)" (Ibid., fn. omitted.)
Chatman had contended that "he and other former probationers incarcerated after their convictions were dismissed . . . [were] in all material respects, similarly situated to formerly incarcerated former prisoners, who remain[ed] eligible to apply for a certificate of rehabilitation even if subsequently incarcerated." (Chatman, supra, 4 Cal.5th at pp. 289-290.) The California Supreme Court assumed without deciding that the two groups were similarly situated to reach "the more fundamental question of whether section 4852.01's unequal treatment of the groups bears a rational relationship to a legitimate state purpose." (Id. at p. 290.) The court concluded that "the classification at issue in this case, which bars subsequently incarcerated former probationers from certificate of rehabilitation relief, is a rational means of preserving government resources." (Id. at p. 291.)
The court explained: "Former probationers, as opposed to former prisoners, can seek some relief from the effects of their convictions through section 1203.4, and so exhibit somewhat less relative need for certificate of rehabilitation relief. Moreover, when the Legislature first provided access to certificates of rehabilitation in 1943, it did so only for former prisoners. Only in 1976 was the benefit extended to former probationers not subsequently incarcerated. From the legislative history, it appears that lawmakers at the time weighed the increased cost of extending relief. And instead of choosing an arbitrary means of limiting such access, legislators used subsequent incarceration as a means of determining which former probationers show the most promise for rehabilitation. If these justifications for the statute's treatment of former probationers do not necessarily reflect the ideal distribution of certificates of rehabilitation, neither can we conclude they are wholly irrational. What the framework enacted by the Legislature permits is for certain people to mitigate the effects of felony convictions in a world of limited resources. The basis for allocating those resources is sufficiently grounded in nonillusory distinctions between subsequently incarcerated former probationers and other classes of convicted felons to survive rational basis scrutiny under the equal protection clauses of the state and federal Constitutions." (Chatman, supra, 4 Cal.5th at p. 283.)
The same is true in this case. No individualized consideration is given to the particulars of an individual's criminal conduct leading to the conviction of a crime listed in section 290(c) before lifetime registration for that offense is statutorily compelled. The Legislature could have rationally concluded that an individual misdemeanant who satisfied the standard for imposing a lifetime registration requirement based on his or her particular conduct that was committed "as a result of sexual compulsion or for purposes of sexual gratification" (§ 290.006) was unlikely to obtain a certificate of rehabilitation in the superior court and likely "to waste public resources attempting to obtain such relief." (Ansell, supra, 25 Cal.4th at p. 890.) It could have chosen not to include such misdemeanants in those eligible to file a petition under section 4852.01, subdivision (b), as a rational means of preserving limited government resources. (See Chatman, supra, 4 Cal.5th at pp. 290-291.) Those misdemeanants may directly seek a pardon from the governor. (See Cal. Const., art. V, § 8, subd. (a); § 4800 et seq.)
As we have already indicated, under the rational basis test, "equal protection does not require a perfect fit between a statute's means and the legitimate state ends those means can serve. [Citation.]" (Chatman, supra, 4 Cal.5th at p. 290.) Here we find a sufficient "relationship between means and ends" to withstand rational basis review.
DISPOSITION
The order of the superior court denying Ortiz's petition for rehabilitation and pardon is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
DANNER, J.