Trial Court: Santa Clara County Superior Court No.: 211158 Trial Judge: The Honorable Socrates Peter Manoukian (Santa Clara Count Super. Ct. No. 211158)
The opinion of the court was delivered by: Mihara, J.
CERTIFIED FOR PUBLICATION
Mitchell Lewis Zeigler, defendant and respondent, petitioned for a certificate of rehabilitation regarding two prior drug convictions in 1989 and 2000. The People opposed the petition on the basis that it was barred by defendant's new, non-violent drug offense in 2007 for which he was granted probation under Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000).
Defendant argued that, because his 2007 conviction was set aside and the charges were dismissed after he successfully completed a Proposition 36 drug treatment program, the offense could not be considered in evaluating his petition for a certificate of rehabilitation. As defendant pointed out, the law provides that records "pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under [Proposition 36] may not, . . . , be used in any way that could result in the denial of any . . . certificate." (Pen. Code, § 1210.1, subd. (d) (3).)*fn1
The People countered that, though it may not be allowed to put on evidence of defendant's arrest and conviction, it should have been allowed to put on evidence regarding the underlying conduct that led to the Proposition 36 case. The trial court disagreed and granted the petition for a certificate of rehabilitation, finding that the statute prevented the court from considering evidence of the underlying conduct because it provides that, after successful completion, "the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted." The People appeal.
Construing the statutory schemes governing Proposition 36 dismissals (Pen. Code, §§ 1201, 1210.1, & 3063.1) and petitions for certificates of rehabilitation (§ 4852.01 et seq.), we conclude that, when ruling on defendant's petition for a certificate of rehabilitation, the trial court had the discretion to receive evidence regarding the conduct that resulted in defendant's arrest and conviction for a nonviolent drug possession offense. In our view, the court was mistaken regarding the extent of its discretion in this regard and therefore abused its discretion when it granted the certificate of rehabilitation. Consequently, we will reverse the order granting the certificate of rehabilitation and remand the matter to the trial court for further proceedings on defendant's petition.
FACTUAL AND PROCEDURAL HISTORY I. Prior Offenses
In December 1989, defendant was convicted of two felony counts of transportation or sale of narcotics (Health & Saf. Code, § 11352) in Santa Clara County Superior Court case No. 130890. Initially, execution of defendant's sentence was suspended and he was granted probation. After violating his probation in September 1992, defendant was committed to state prison. He was last released from prison in June 1999, "[a]fter numerous releases then violations."
In February 2000, defendant was convicted of one count of possession of a controlled substance (Health & Saf. Code, § 11350) in Santa Clara County Superior Court case No. C9948400. Execution of his sentence was suspended and defendant was granted probation on the condition that he serve time in jail. (The precise amount of time defendant served in jail is not clear from the record.) He was released from custody on April 19, 2000, and his petition stated that his "probation terminated upon his release."
II. Petition for Certificate of Rehabilitation
On June 1, 2007, defendant petitioned the court for a certificate of rehabilitation regarding his convictions in 1989 and 2000. The court conducted three hearings on the petition in 2007. After the initial hearing on July 30, 2007, the hearing was continued to September 17, 2007, and then to October 22, 2007. The record does not indicate the reasons for the continuances or whether the court requested that the district attorney or law enforcement conduct any investigation relative to the petition in 2007. At the October 22, 2007 hearing, defense counsel withdrew the petition because defendant had been arrested and charged with a new, nonviolent drug possession offense.
III. 2007 Nonviolent Drug Possession Offense
The record does not contain any information regarding the nature of or the factual circumstances relating to defendant's 2007 nonviolent drug possession offense.
In October 2007, defendant was found eligible for Proposition 36 probation for his nonviolent drug possession offense. Defendant successfully completed his Proposition 36 treatment program on June 23, 2009. As a result, his Proposition 36 "probation was terminated, his plea was withdrawn, the judgment was set aside, and [his] motion to dismiss that case was granted."
IV. Defendant's Motion to Renew Petition for Certificate of Rehabilitation
On November 23, 2010, defendant filed a motion to renew his petition for a certificate of rehabilitation regarding his 1989 and 2000 convictions. In his motion, defendant asserted that, based on the nature of those offenses, he was subject to a seven-year period of rehabilitation before a petition for certificate of rehabilitation could be granted. He argued that his seven-year period of rehabilitation began to run when he was released from custody in April 2000 and that he was therefore eligible to petition the court in April 2007. After stating that a new offense ordinarily requires the court to restart the period of rehabilitation, defendant argued that the 2007 nonviolent drug possession offense could not be considered in calculating his period of rehabilitation because he had been "released from all penalties and disabilities" related to that conviction after he successfully completed his Proposition 36 probation and his conviction for the 2007 drug offense was set aside.
Defendant observed that there were no published cases "dealing with the intersection" of Proposition 36 and the statutory scheme governing certificates of rehabilitation. He argued that Proposition 36 strictly limits the subsequent use and consideration of his arrest and conviction for his 2007 nonviolent drug possession offense. In particular, defendant relied on section 1210.1, subdivision (d)(3),*fn2 which provides that, subject to certain exceptions, "after an indictment, complaint, or information is dismissed pursuant to [Proposition 36], the defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or convicted for the offense" and that records "pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under [Proposition 36] may not, . . . , be used in any way that could result in the denial of any employment, benefit, license, or certificate."
Defendant acknowledged that the statutory scheme governing Proposition 36 contains exceptions that authorize the disclosure of an arrest and conviction for a nonviolent drug possession offense, but argued that none of the exceptions allowed such evidence to be used in conjunction with a petition for a certificate of rehabilitation. Defendant asserted that, because the statute did not expressly mention certificates of rehabilitation, his 2007 nonviolent drug possession offense could not be used to deny him a certificate of rehabilitation. Defendant asked the trial court to hear his petition for a certificate of rehabilitation and to treat his Proposition 36 offense as if it had never occurred.
V. People's Opposition to Motion
The district attorney opposed defendant's motion both on procedural grounds and on the merits.
Procedurally, the district attorney stated that defendant had filed his motion only the week before and that the "investigation into his claim, therefore [had] not been completed."*fn3 However, the district attorney agreed that the motion could be heard to resolve the legal issue presented and that the court could thereafter determine whether further investigation and hearing was required on the petition.
Regarding the merits, the district attorney argued that defendant admitted that he was last released on probation in October 2007, so the earliest he could petition for a certificate of rehabilitation was October 2014. The district attorney argued that the "plain text" of the statutes governing certificates of rehabilitation required the defendant to obey all laws and that, because defendant admitted he committed a felony in 2007, he was not eligible for a certificate of rehabilitation until 2014. The district attorney asserted that while defendant may be entitled to a record clearance under Proposition 36, that does not change the fact that he broke the law by possessing drugs in 2007. The district attorney argued that there were alternative ways of proving defendant's underlying conduct and his failure to obey the law. He contended that there were no conflicts between the Proposition 36 and certificate of rehabilitation statutory schemes. Finally, the district attorney asserted that a certificate of rehabilitation is not easily earned, and that it was too early to issue the certificate because (1) defendant had a 20-year struggle with addiction and law violations, and (2) he had completed his drug treatment only the year before.
At the hearings on the petition, the district attorney told the court that defendant had not "completed the process whereby you submit to an interview, provide your information," that the court was "entitled to and, in fact, mandated to take evidence, for example [from] the peace officer who knows of any law violation" and that it was "not uncommon to call live witnesses." He argued that there is "a crucial distinction between a conviction and the actual underlying behavior" and that the court "would want some sort of evidentiary hearing" regarding "any allegation thought to bar someone" from receiving a certificate of rehabilitation, and that "a peace officer is obligated to give the information to the Court."
VI. Trial Court Ruling on Motion and Petition for Certificate of Rehabilitation
After conducting two hearings, the court granted defendant's petition for a certificate of rehabilitation. The People appeal.
The People contend that the trial court erred in interpreting the statutes governing certificates of rehabilitation and Proposition 36 dismissals when it concluded that defendant's Proposition 36 offense could not be considered in evaluating his petition for a certificate of rehabilitation. The People argue that under the statutory scheme governing certificates of rehabilitation, the court examines the petitioner's entire conduct during the period of rehabilitation, and is not limited to considering merely his record of arrests and convictions. The People argue, for example, that under section 4852.11, upon the court's request, a peace officer is required to report "all violations of the law" and is not limited to reporting only those that result in arrests or convictions. The People assert that defendant's 2007 nonviolent drug possession offense and his subsequent Proposition 36 probation and drug treatment demonstrate both that he did not meet the seven-year rehabilitation requirement and that his rehabilitation was not yet complete, since he had failed to obey the law or remain drug-free for seven years. The People also argue that the court abused its discretion when it granted the petition for a certificate of rehabilitation. We begin by addressing the statutory interpretation issues.
I. Statutory Interpretation Issues A. Standard of Review and Rules of Statutory Construction
The construction of a statute is purely a question of law and is subject to de novo review on appeal. (People v. Failla (2006) 140 Cal.App.4th 1514, 1520 (Failla).)
"In interpreting a voter initiative such as Proposition 36, we apply the same principles that govern the construction of a statute. [Citations.] ' "Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law." ' " (People v. Canty (2004) 32 Cal.4th 1266, 1276 (Canty).) In the case of a voter initiative, our role is to ascertain the intent of the electorate.
"Our first task is to examine the language of the statute enacted as an initiative, giving the words their usual, ordinary meaning. [Citation.] If the language is clear and unambiguous, we follow the plain meaning of the measure. [Citations.] '[T]he "plain meaning" rule does not prohibit a court from determining whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.' " (Canty, supra, 32 Cal.4th at p. 1276.) "The language is construed in the context of the statute as a whole and the overall statutory scheme, and we give 'significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. [Citation.]' [Citations.] The intent of the law prevails over the letter of the law, and ' "the letter will, if possible, be so read as to conform to the spirit of the act." [Citation.]' " (Canty, supra, at p. 1276-1277.) If the Legislature, or the electorate in the case of an initiative measure, " 'has provided an express definition of a term, that definition ordinarily is binding on the courts.' " (Id. at p. 1277.)
B. Petitions for Certificates of Rehabilitation
We begin our analysis by reviewing the statutory scheme governing petitions for certificates of rehabilitation (§§ 4852.01 et seq.), which is entitled "Procedure for Restoration of Rights and Application for Pardon," and which our State Supreme Court described in detail in People v. Ansell (2001) 25 Cal.4th 868 (Ansell).*fn4
The Ansell court began by reviewing the purpose and historical reasons for petitions for certificates of rehabilitation. The court explained that the Penal Code prescribes punishment for the crimes defined therein, which in the case of felonies, "typically involves a prison sentence, although other dispositions such as probation are authorized in some cases." (Id. at p. 872.) "Less known, perhaps, are the collateral consequences associated with a felony conviction after sentence has been served. Most of these disabilities have existed in some form for decades, and many appear in statutes located outside the Penal Code. Some of the more common rules include disqualification from jury service, impeachment as a witness, inaccessibility to firearms, and registration as a sex offender. In addition, a felony conviction may disqualify the person from practicing many licensed trades and professions and from holding certain positions of public employment. Under prior law, persons convicted of 'infamous crimes' were disenfranchised even after sentence was complete. However, a convicted felon who is not imprisoned or on parole can now vote." (Ansell, at pp. 872-873, fns. omitted.)
"[C]onvicted felons who claim to be reformed have traditionally sought relief from the various consequences of their convictions through the Governor's power and discretion to grant pardons under the state Constitution."*fn5 (Ansell, supra, 25 Cal.4th at p. 873.) Two different pardon application procedures exist. (Id. at p. 874.)
The first and oldest procedure--the one that defendant did not invoke--is located in section 4800 et seq. (Ansell, supra, 25 Cal.4th at p. 874.) "As pertinent here, this scheme authorizes the submission of pardon applications directly to the Governor." (Ibid.) The procedures for investigating and processing direct pardon applications to the Governor are described in Ansell. (Id. at p. 874, fn. 11.)
The second procedure--the one defendant relied on--is the certificate of rehabilitation procedure set forth in section 4852.01 et seq., "which, by its own terms, offers an 'additional, but not an exclusive' means of requesting a pardon. (§ 4852.19.) During World War II the Governor's office was inundated with pardon applications received from ex-felons who were otherwise barred from serving in the military and working in defense industries. [Citations.] Enacted as an urgency measure in 1943, the certificate of rehabilitation scheme eased the administrative burden on the executive branch by allowing the superior court to investigate and recommend pardon applicants." (Ansell, supra, 25 Cal.4th at pp. 874-875.) Except for a few changes, which are not relevant here, the statutory scheme has not changed materially since it was reviewed by the Ansell court in 2001. (See Cal. Law Revision Com. com., 51C pt. 2 West's Ann. Pen. Code (2011 ed.) foll. §§ 4852.03, 4852.17, & 4852.18, pp. 43-44, 60, & 62-63; see also Stats. 2010, ch. 178, § 84, operative Jan. 1, 2012 & Stats. 2002, ch. 784, § 572.)
"With certain exceptions . . . , the certificate of rehabilitation procedure is available to convicted felons who have successfully completed their sentences, and who have undergone an additional and sustained 'period of rehabilitation' in California. (§ 4852.03, subd. (a) [imposing general minimum requirement of five years' residence in this state, plus an additional period typically ranging between two and five years[, for a total of seven to 10 years,] depending upon the conviction]; see §§ 4852.01, subds. (a)-(c), 4852.06.)" (Ansell, supra, 25 Cal.4th at p. 875; italicized language added.) It is undisputed that the applicable period of rehabilitation in this case is seven years.
During the period of rehabilitation, the "person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land." (§ 4852.05; hereafter sometimes referred to as the "behavioral requirements.") "Several provisions make clear that a person is 'ineligible to . . . petition for a certificate of rehabilitation' (§ 4852.03, subd. (b)), and that no such petition 'shall be filed' (§ 4852.06), unless and until the foregoing requirements are met. (See § 4852.01, subds. (a)-(c) . . . .)" (Ansell, supra, 25 Cal.4th at p. 875.)
"Proceedings begin when a qualified person petitions for a certificate of rehabilitation in the superior court of the county in which he lives. (§ 4852.06; see § 4852.07 [requiring notice to the Governor and to the district attorney in the county or counties where the petition is filed and the petitioner was convicted].) Other provisions allow the petitioner to pursue a certificate of rehabilitation without personal expense and with professional assistance. (§§ 4852.04 [establishing a right to counsel and to assistance from rehabilitative agencies, including probation and parole officers], 4852.08 [authorizing representation by the public defender or other appointed counsel], 4852.09 [prohibiting court fees of any kind], 4852.1 [authorizing the production of official records at no charge], 4852.18 [making the petition and other necessary forms available at no charge].)" (Ansell, supra, 25 Cal.4th at p. 875.)
"The superior court holds a hearing and considers testimonial and documentary evidence bearing on the petition. (§§ 4852.1, 4852.11.) To this end, the court may compel the production of judicial, correctional, and law enforcement records concerning the crimes of which [the] petitioner was convicted, his performance in custody and on supervised release, and his conduct during the period of rehabilitation, including all violations of the law known to any peace officer. [Citation.] The district attorney may be directed to investigate and report on relevant matters. (§ 4852.12.)" (Ansell, supra, 25 Cal.4th at p. 875.) "[A] court may, but is not mandated to, require 'testimony as it deems necessary' and an investigative report from the district attorney of the petitioner and his residence, in addition to any documentary evidence a petitioner presents." (People v. Lockwood (1998) 66 Cal.App.4th 222, 228 (Lockwood), citing §§ 4852.1 and 4852.12.)
Section 4852.13 gives the court discretion to decide whether a petitioner has demonstrated to the court's satisfaction, "by his or her course of conduct his or her rehabilitation and . . . fitness to exercise all of the civil and political rights of citizenship." (§ 4852.13, subd. (a).) "To enter an order known as a certificate of rehabilitation, the superior court must find that the petitioner is both rehabilitated and fit to exercise the rights and privileges lost by reason of his conviction." (Ansell, supra, 25 Cal.4th at pp. 875-876, citing § 4852.13, subd. (a).) The overall goal of the statutory scheme is ...