Trial Court: Alameda County Superior Court Trial Judge: Honorable Carrie M.. Panetta Super. Ct. No. C143666)
The opinion of the court was delivered by: Baskin, J.*fn10
CERTIFIED FOR PUBLICATION
Defendant was ordered to register as a sex offender after he pleaded no contest to a violation of Penal Code section 311.1*fn1 in connection with his possession of pornography. He later sought a certificate of rehabilitation (§ 4852.01 et seq.), so that he could be relieved of the registration requirement. Because an amendment to the sex offender registration law after his conviction had the effect of lengthening the time period he was required to wait before seeking a certificate, the trial court denied defendant's petition, concluding that he was not yet eligible to seek relief. Defendant challenges the denial on several grounds, one of which has merit. We conclude that subjecting defendant to a longer rehabilitation procedure denies defendant equal protection of the laws, because persons similarly situated are not so restricted. We therefore reverse and remand to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken primarily from the exhibits submitted to the trial court in connection with defendant's petition for a certificate of rehabilitation. According to a probation report, police discovered "a large amount of child pornography" on computers seized from defendant's home following a search conducted pursuant to a warrant on October 2, 2001. Defendant was charged with a violation of section 311.1, a wobbler, which makes it unlawful to knowingly bring into the state or to possess obscene matter that depicts a person under the age of 18 personally engaging in or simulating sexual conduct, with intent to distribute or exhibit such matter to others. Defendant also was prosecuted in federal court for a violation of title 18 United States Code section 2252a(a)(5)(B) (knowing possession of child pornography), according to the probation report.
On August 29, 2002, defendant pleaded no contest pursuant to a plea agreement in this action to a felony violation of section 311.1, and defense counsel stipulated that there was a factual basis for the plea.*fn2 Four other felony sex crimes were dismissed pursuant to the plea agreement. At the time of the plea, a conviction under section 311.1 did not require registration as a sex offender pursuant to section 290; however, defendant agreed to register as part of the negotiated disposition. (Former § 290, subd. (a)(1)(A) & (a)(2)(A); Stats. 2000, chs. 240, § 1, 287, § 3-8, 648, § 1, 649, § 2.5.) During a discussion before the entry of defendant's plea, the parties and the trial court agreed that defendant's conviction would not preclude defendant from later seeking a certificate of rehabilitation. As discussed in more detail below, obtaining such a certificate pursuant to the procedure set forth in section 4852.01 et sequitur relieves a person from further duty to register as a sex offender. (§ 290.5, subd. (a)(1).)
Sentencing did not take place until October 28, 2003, more than a year after defendant entered his plea. Although it is unclear what caused the delay, it may have been due to defendant's prosecution in federal court. The probation department report stated that defendant would serve time in federal custody, and the trial court confirmed at the beginning of the October 28 hearing that defendant had recently been sentenced to serve a year and one day in federal prison, beginning the following January. In this matter, the trial court suspended imposition of sentence and placed defendant on probation for five years, pursuant to the negotiated disposition.
Defendant's probation was terminated on March 14, 2008. On February 6, 2009, the trial court granted defendant's petition to reduce his conviction from a felony offense to a misdemeanor, pursuant to section 17. That same day, the trial court ordered that defendant's "plea/verdict/finding of guilt" be set aside and vacated, a plea of not guilty be entered, and that the complaint be dismissed, pursuant to section 1203.4.
Although the underlying briefs are not included in the record on appeal, it appears that defendant first sought relief from the requirement that he continue to register as a sex offender by way of writ of mandate in the trial court. By order dated January 28, 2011, the trial court rejected defendant's argument, pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), that the registration requirement violated equal protection of the laws under the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution. The court concluded that because the registration requirement was imposed pursuant to a plea bargain and not pursuant to statute (as it was in Hofsheier), defendant's equal protection analysis was inapposite, but that the plea agreement did not preclude defendant from applying for a certificate of rehabilitation. Defendant apparently did not appeal the denial of his writ petition.
On December 16, 2011, defendant filed a petition for a certificate of rehabilitation and pardon, pursuant to sections 4852.01 and 4852.06, seeking to terminate his duty to register as a sex offender. The trial court later granted the People's motion for a two-month continuance, so that (according to defendant) an investigator could complete an evaluation of defendant. Apparently no investigation was undertaken, however, because the People concluded that defendant was not then eligible to seek a certificate of rehabilitation. The district attorney filed a motion to dismiss defendant's petition, arguing that the rehabilitation period for a person convicted under section 311.1 was 10 years, meaning that defendant was required to wait an additional 19 months to file his petition.
Defendant disputed his ineligibility, and argued that the 10-year rehabilitation period violated equal protection principles, because similarly situated individuals were required to wait only seven years before seeking a certificate. He also contended that applying a 10-year rehabilitation period would violate federal ex post facto principles (U.S. Const., art. I, § 9), because it increased his punishment after the commission of his crime. He represented that "at the time he agreed to register [defendant] was assured by both the federal and state courts that his registration was to be the lowest level possible and that he should be permitted to apply for a certification of rehabilitation." The only support for this statement was a declaration from counsel, describing a conversation among the federal prosecutor, defense counsel, and the federal judge who oversaw the federal case against defendant. However, no transcript of such a conversation was provided to the trial court, and it is unclear what is meant by a "low level" of registration.*fn3
The trial court denied the petition for a certificate of rehabilitation, concluding that defendant was then currently ineligible for rehabilitation under the plain meaning of the statutory scheme, and that applying the relevant registration period to defendant did not violate equal protection or ex post facto principles. The court encouraged defendant to refile a petition when he was eligible to do so (on or about October 28, 2013--10 years after he was placed on probation), because "this certainly appears to be a case where the granting of such a certificate would be appropriate unless the subsequent investigation turns up something of which the Court is not aware." Defendant timely appealed.
A. Procedure for Seeking Certificate of Rehabilitation for Relief from Sex Offender Registration.
Convicted felons who claim to be reformed may ask the Governor for a pardon, and may thereby seek release from certain civil disabilities arising from the conviction, including registration as a sex offender. (People v. Ansell (2001) 25 Cal.4th 868, 871, 873 (Ansell).) One statutory procedure for requesting such a pardon is set forth in Penal Code section 4852.01 et sequitur, regarding " 'certificates of rehabilitation.' " (Ansell at p. 871.) As explained in Ansell, "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 depending upon the conviction]; see §§ 4852.01, subds. (a)-(c), 4852.06.) During the period of rehabilitation, the person must display good moral character, and must behave in an honest, industrious, and law-abiding manner. (§ 4852.05; see § 4852.06.) 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) [describing who 'may file' a petition].)" (Ansell, supra, at p. 875.) The trial court holds a hearing and considers testimonial and documentary evidence, and the district attorney may be directed to investigate ...