(Contra Costa County Super. Ct. No. 970632-6) Trial Court: Contra Costa County Superior Court Trial Judge: Honorable Charles B. Burch
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
Appellant Jerry Z.*fn1 was convicted by plea in 1997 of one count of continuous sexual abuse of a child under age 14 (Pen. Code, § 288.5)*fn2 based on the molestation of his daughter, age 19 at the time of his conviction. Appellant was granted probation with a one-year jail sentence and various conditions of probation, including sex offender registration under section 290.
Appellant claims that as part of his plea bargain he was promised that if he successfully completed probation, and thereafter committed no additional offenses for a period of ten years, his statutory obligation for registration pursuant to Penal Code section 290 would be terminated, he would be allowed to withdraw his plea and have the charges dismissed under section 1203.4, to obtain a certificate of rehabilitation under section 4852.01 et seq., and be relieved pursuant to section 290.5 of his sex offender registration requirements. At the time of his plea, the statutes in question allowed the forms of relief mentioned, but they have since been amended to disallow such relief for anyone convicted under section 288.5.
Appellant has sought enforcement of these claimed provisions of his plea bargain by various means at various times as a pro se litigant. The Attorney General in fact contends he is barred from seeking relief now because he failed to appeal an earlier adverse ruling. We disagree with the Attorney General, address the merits of appellant's position, and grant the requested relief.
FACTUAL AND PROCEDURAL HISTORY OF THE CONVICTION
On January 7, 1997, it came to the attention of the police that appellant's 16-year-old daughter (Jane Doe I) had been molested by her father from spring 1993 to the beginning of 1995, when she was approximately 13 to 15 years old. In the ensuing investigation it came to light that appellant's then 18-year-old daughter (Jane Doe II) had also been molested by her father from September 1991 to October 1995, making her 13 when the molestation began.
The molestation of Jane Doe I occurred two or three times a week and involved rubbing her vagina with his hand under her clothing and several incidents of digital penetration. The molestation of Jane Doe II occurred once a week, sometimes once a month, and involved French kissing, touching and sucking her breasts, and digital penetration.
The molestation had come to the attention of the girls' mother in November 1995 when the girls confronted their father during a family argument. The mother said the abuse was a result of the father's depression and did nothing further about it. The father and both girls told investigators the abuse had stopped sometime in 1995 when Jane Doe I complained to her father that she did not think it was right, shortly before Jane Doe II told their mother about the abuse.
Appellant was charged in a six-count complaint with two counts of continuous sexual abuse of a child under age 14, naming Jane Doe I and Jane Doe II as victims (§ 288.5) , three counts of lewd and lascivious conduct with a child aged 14 or 15 (§ 288, subd. (c)) (one count relating to Jane Doe I and two counts relating to Jane Doe II), and one count of rape with a foreign object of a minor under age 18 (§ 289, subd. (h)) relating to Jane Doe II.
On March 27, 1997, pursuant to a plea bargain, appellant pled no contest to one count against Jane Doe II under section 288.5 in exchange for dismissal of the other charges. He faced a maximum sentence of 16 years in prison for that conviction. (§ 288.5, subd. (a).) Under the plea bargain he was to be admitted to probation for five years, with one year in county jail.
There was no written plea agreement. At the change of plea proceeding defense counsel recited the foregoing major terms of the plea bargain, but there was no mention of prospective relief from conviction or registration. Appellant was informed by the court that he would be required to register under section 290, but he was not told how long the registration requirement would last. Appellant acknowledged that no promises had been made other than those recited in open court.
Before accepting his plea, the court received a psychiatric report under section 288.1. That report attributed the molestation to "extended periods of severe depression and problems within his marriage" leading appellant to take advantage of his daughters in an "inappropriate fashion," but he was "seen as 'acting out' and not being directed in a criminal or deliberate fashion to commit acts of a criminal nature." The report indicated appellant had undergone a religious awakening, had benefited from antidepressant medication, and was "not a risk to repeat the behaviors" that led to his conviction. He exhibited a "clearly heartfelt desire to never bring about pain of this nature within his lifetime ever again."
After the plea, and before sentencing, a second psychiatrist diagnosed appellant with "pedophilia, attracted to females and limited to incest but without sexual intercourse." This doctor, too, noted a "history [of] depression" then "in remission" and predicted appellant would not be a "present danger to the health or safety of others, including his two daughters." Appellant was described as having "legitimate remorse for his behavior." The doctor recommended that appellant be given "serious consideration for probation."
On April 17, 1997, appellant was granted probation for five years on condition he serve one year in county jail. He was again informed by the court he would be required to register under section 290, again without reference to the duration of that requirement. Defense counsel was asked, "[A]re there any other specific terms and conditions being requested for his probation?" She responded, "No."
On June 5, 1997, the probation department addressed a document to appellant which, among other things, advised him of the availability of relief under section 1203.4. It read in part, "If you fulfill all the conditions of your probation, you may come in at the end of the probationary period, change your plea (or conviction) from guilty to not guilty, and have the charges dismissed. Certain California Vehicle Code violations are not applicable due to Department of Motor Vehicle regulations."
At the time of appellant's plea, a conviction under section 288.5 did not bar relief under section 1203.4 upon successful completion of probation.*fn3 Appellant was entitled as a matter of right to relief under that statute if he fulfilled the terms of his probation (People v. Chandler (1988) 203 Cal.App.3d 782, 787, 788), and then could have applied for a certificate of rehabilitation under section 4852.01.*fn4 To the extent he made an appropriate showing of his rehabilitation in accord with section 4852.13, the court then "may" have granted him such a certificate. (See fn. 11, post.) After ten crime-free years of compliance with sex offender registration requirements, appellant could have then applied to be relieved of sex offender registration under section 290.5, subdivision (b)(3), but that section required (and still requires) an applicant to first obtain a certificate of rehabilitation before being eligible to be relieved of registration requirements. Even after obtaining such a certificate, a person convicted of violating section 288.5 "may" have been relieved of registration requirements in the court's discretion.*fn5
But the law soon changed, so that effective January 1, 1998, those convicted under section 288.5 became categorically ineligible for those forms of relief. In July 1997, the Legislature amended section 1203.4 to make relief under that statute unavailable to those convicted of violating section 288.5. (§ 1203.4, subd. (b); Stats. 1997, ch. 61, § 1, p. 405.) That same bill amended section 4852.01 to disqualify those convicted of violating section 288.5 from receiving a certificate of rehabilitation. (§ 4852.01, subd. (d); Stats. 1997, ch. 61, § 2, p. 407.)
At the time of appellant's plea, as now, dismissal under section 1203.4 was a prerequisite to obtaining a certificate of rehabilitation; and a certificate of rehabilitation was, and still is, a prerequisite to being relieved of registration requirements under section 290.5. (§§ 290.5, subds. (a)(1), (a)(2), (b)(3)), 4852.01, subd. (c).) The 1997 revisions to these sections applied retroactively to one convicted before their effective date. (People v. Ansell (2001) 25 Cal.4th 868, 884-885, 893 (Ansell); People v. Arata (2007) 151 Cal.App.4th 778, 784-785 (Arata).)
In 1999 section 290.5, subdivision (b), was also amended to foreclose relief from registration for individuals convicted under section 288.5, by providing, effective January 1, 2000, that relief from registration was available only if a certificate of rehabilitation had been obtained prior to January 1, 1998. (§ 290.5, subd. (b)(3); Stats. 1999, ch. 576, § 2, p. 4092.) In addition, section 290.5 was amended in 2005 to provide: "A person required to register under Section 290, upon obtaining a certificate of rehabilitation . . . , shall not be relieved of the duty to register under Section 290" if his or her conviction was for violating section 288.5. (§ 290.5, subd. (a)(2)(P); Stats. 2005, ch. 722, § 8, pp. 5913-5914.)
APPELLANT'S PREVIOUS POSTJUDGMENT PROCEEDINGS
Appellant began seeking relief from sex offender registration soon after he was convicted, specifically, on August 4, 1997, when he filed a habeas corpus petition alleging that registration under section 290 violated his freedom of religion under the First Amendment, his right to privacy, and the Eighth Amendment prohibition on cruel and unusual punishment. On August 27, 1997, the court (Hon. Garrett J. Grant) denied the petition in a written opinion.
On November 5, 1997, evidently having become aware of the upcoming statutory changes, appellant filed another habeas corpus petition requesting, inter alia, relief under sections 1203.4, 4852.01, and 290.5. He claimed the "elimination" of section 1203.4 relief, as well as relief under section 4852.01, violated due process because the statutory provisions had been "part of an inducement to accept the . . . plea bargain." This appears to be the first time appellant raised the issues now before us as a basis for relief, although at that time he had not completed probation or complied with the ten-year good behavior requirement.
Despite appellant's reliance on recent legislation, by order of December 1, 1997, Judge Grant denied his habeas petition as a successive petition that did not include an explanation for why that claim was not included in the earlier-filed petition. Thus, the merits of his plea bargain claim were not addressed.
Appellant next filed a habeas corpus petition on March 30, 1998, again on the basis that the laws as they existed in 1997--allowing section 1203.4 relief and relief from registration--were "statutory rights, inherently implied (even stated in the probation instructions . . .) and specified as part of the 3/27/97 P.C. 1192.5 plea bargain, and [were] an inducement for the defendant to accept the plea bargain." Appellant's stated reason for filing a successive petition was to add certain legal authorities not available at the time of his earlier petition. The petition was denied by written order (Hon. Michael R. Coleman) filed April 28, 1998, again because it was a successive petition.
Appellant renewed his efforts to be relieved of sex offender registration and its consequences after successfully completing probation in 2002. The ten-year period following his plea and conviction expired in March or April 2007. Appellant claims he remained free of conviction during that entire time. Then, on May 30, 2007, the Third District Court of Appeal filed its opinion in Arata, supra, 151 Cal.App.4th 778, which, as discussed below, held that relief under section 1203.4 was implicitly included in a plea bargain entered before the law changed in 1998. As will be seen, Arata is a case of considerable importance here.
On August 9, 2007, appellant filed another habeas corpus petition alleging that he and his family had been subjected to harassment, assaults, vandalism of property, and death threats. Appellant claimed that when he entered his plea he "relied upon the promises & clear written Codes as depicted in P.C. 1203.4, P.C. 4852.01 and P.C. 290.5 of rehabilitative relief, as existing in 1997." Appellant compared his case to that of Arata, supra, 151 Cal.App.4th 778 and requested relief under the foregoing sections.
The habeas petition was denied without prejudice by order of Judge Coleman filed October 9, 2007, which expressed the opinion that the proper procedural device would be a motion under section 1203.4.
Accordingly, on October 29, 2007, appellant filed a motion to withdraw his plea and dismiss the charge under section 1203.4, for a certificate of rehabilitation under section 4852.01, and for relief from section 290 registration under section 290.5. Appellant further expressly declared that he and his trial attorney, Paula Lorentzen, "discussed thoroughly" the above-specified forms of relief, and that she had "thorough discussions . . . with the Contra Costa District Attorney's Office" on the subject. Again, appellant cited and relied upon Arata.
The motion was denied by written order (Hon. Theresa Canepa) on December 12, 2007. Importantly, the court found the promise of relief under section 1203.4 was an "implicit term" of the plea bargain, citing Arata, supra, 151 Cal.App.4th 778. It found, however, that this term was not a "significant" part of the overall bargain, and so the unavailability of relief under the amended statute did not violate due process, citing People v. Acuna (2000) 77 Cal.App.4th 1056, 1062 (Acuna). In reaching that result, the order noted appellant had not stated in his declaration that "if he had known the expungement could not be obtained, he would not have agreed to plead guilty."*fn6 And it further held that, since appellant was not eligible for relief under section 1203.4, he also could not obtain relief under sections 290.5 and 4852.01 et seq., as dismissal under section 1203.4 is a first step in obtaining both forms of relief.
Appellant filed a motion for reconsideration, in which he requested a hearing and appointment of counsel. His motion was denied without explanation on February 27, 2008. No appeal was taken from these rulings, apparently because appellant believed he needed to further exhaust his remedies in superior court.
On October 29, 2008, appellant filed another habeas corpus petition in the superior court on the same grounds. The verified petition alleged that he "would not have agreed to the Plea bargain and would have gone to Court Trial" had it not been for the promised relief under sections 1203.4, 4852.01 and 290.5. He further requested oral argument and appointment of counsel, stating his desire to subpoena his trial attorney Lorentzen, Deputy District Attorney Brian Baker, and the Honorable Patricia Sepulveda, then (and now) a justice of this court, but the judge who sentenced appellant below. Thus, appellant alerted the court that these individuals had been involved in the plea negotiations.
The habeas petition was denied in an eight-page written order (Hon. Charles B. Burch) on December 23, 2008. The specified grounds were that it was repetitive of earlier filings, the denial of which appellant had failed to appeal; that the prior order finding the implicit term of the plea bargain not significant was not "egregiously wrong"; that the plea transcripts did not reflect such an agreement; and that the court disagreed with the reasoning of Arata, supra, 151 Cal.App.4th 778 and refused to follow it.*fn7
On March 11, 2009, appellant filed a petition for writ of habeas corpus in this court, and at defendant's request we take judicial notice of the file in that case. (Evid. Code, §§ 452, subd. (d), 459.) Filed concurrently with his petition was the declaration of Lorentzen, appellant's trial attorney, which was dated February 26, 2009. Manifestly, this declaration had not previously been submitted to the court below.
We denied the habeas petition on June 11, 2009, on grounds that appellant was no longer in actual or constructive custody, nevertheless also holding out a ray of hope to him: "it appears, however, that petitioner is not without a remedy. In his petition here, petitioner has included a declaration from trial counsel regarding the importance petitioner placed on the Penal Code section 1203.4 relief. Although petitioner has previously moved for relief under Penal Code section 1203.4 in the trial court, the declaration may constitute new evidence ...