Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. M-11861, Thomas James Borris, Judge. Reversed and remanded.
Law Offices of Norton Tooby, Norton Tooby and Rose Cahn for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Tami Falkenstein Hennick and Vincent La Pietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
In 1986 defendant Jose Luis Ramirez was charged with felony assault with a firearm (Pen. Code, § 245, subd. (a)(2); all further statutory references are to this code unless otherwise indicated), personal use of a handgun (§ 12022.5), and intentional personal infliction of bodily injury (§ 12022.7). It was alleged this was a serious felony. (§ 1192.7, subd. (c)(8).) In March 1987 the jury convicted defendant of felony assault and personal use of a firearm but found him not guilty of personal and intentional infliction of great bodily injury.
In sentencing defendant to the low term of two years, without an additional two years for the firearm use, the court stated it did not “believe [defendant] actually intended to hit [the victim]... [or] to fire his gun at all, but rather that it was something done on the spur of the moment.” In April 1988 defendant was released from prison and given three years’ parole, which he completed in April 1991. Between April 2005 and June 2007 defendant was convicted of three traffic violations, one for driving over 100 miles per hour.
In June 2008 defendant filed a Petition for a Certificate of Rehabilitation and Pardon (§ 4852.01, subd. (b)), submitting his own statement and more than 35 letters from family, friends, business associates, government officials, and a police chief in support of his application. In opposition the prosecution argued: 1) defendant failed to show remorse and rehabilitation; 2) the authors of defendant’s supporting letters did not necessarily know of his conviction; 3) defendant had been given three traffic citations after completion of his parole, which showed he “refuse[d] to conform to and obey the laws of the land”; and 4) defendant had been arrested on another charge over 27 years before the subject crime, although no evidence of prosecution was presented. In the very brief hearing, the court ruled “the problem is... section 4852.05 says that in order for me to grant this petition, the criteria is having lived an[] honest and upright life and conformed to and obeyed the laws of the land.” “[I]t’s the law of the land not to speed at 100 miles an hour.” These were the court’s only comments in denying the petition.
Defendant claims that, in relying on his three traffic citations, the court abused its discretion in applying an incorrect legal standard in its interpretation of the requirement to “conform to and obey the laws of the land.” He also argues the court giving those citations too much weight in light of the overwhelming evidence of his “more than 22 years of rehabilitation, hard work, personal betterment, and outstanding contributions to his local community and the economy....”
To be eligible for a certificate of rehabilitation, after expiration of a statutorily specified period and after release from prison and successful completion of parole, in this case seven years (§ 4852.03, subd. (a)(3)), a “person shall live an honest and upright life, shall conduct himself... with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.” (§ 4852.05.) After a hearing, the court has discretion to grant the certificate if it “finds that the petitioner has demonstrated by his... course of conduct his... rehabilitation and... fitness to exercise all of the civil and political rights of citizenship....” (§ 4852.13, subd. (a).)
It is unclear from the brief statement the trial court made in denying the petition whether it understood that, despite defendant’s traffic citation, it retained the power to grant the petition. It can be fairly interpreted that the court believed it did not. The court referred to the statute’s requirement that defendant have obeyed the laws of the land and concluded that driving over 100 miles an hour did not comply.
But the existence of the traffic citations was not an automatic bar to granting the petition. Section 4852.11 dictates that, if asked, law enforcement personnel are to report to the court any violations of law by a defendant who has filed a petition for a certificate of rehabilitation. Even knowing of such violations the court has the discretion to grant the petition. (Ibid.) In this case defendant has not committed felonies or misdemeanors. His violations of the Vehicle Code, even driving in excess of 100 miles per hour, were merely infractions. (Veh. Code, §§ 22348, 40000.1.)
Defendant presented substantial evidence of rehabilitation during the last 23 years. He acknowledged his wrongdoing and expressed remorse. He has a stable family relationship and a successful, long-standing business. He has been active in his community and has provided financial assistance and moral support to friends, family, other business owners, and various charities. Several character references were filed in support of his petition. If the trial court is inclined to grant the petition, this evidence would support it, despite the existence of the traffic violations.
When a court exercises discretion it must do so using proper legal standards. (People v. Ward (2009) 173 Cal.App.4th 1518, 1527; see also People v. Knoller (2007) 41 Cal.4th 139, 156 [court abuses discretion if decision based on “incorrect legal standard”].) Because we cannot determine whether the court applied the correct legal standard in ruling on the petition, we reverse the order and remand the matter for it to reconsider the petition in light of this decision.
WE CONCUR: ARONSON, J., IKOLA, J.