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People v. Miller

California Court of Appeals, Sixth District

May 25, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
TIMOTHY J. MILLER, Defendant and Appellant.

          Santa Clara County Superior Court, Case No.: 215071 Hon. David A. Cena Judge

          Xavier Becerra Attorney General of California Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Catherine A. Rivlin Supervising Deputy Attorney General Bruce M. Slavin Deputy Attorney General Attorneys for Plaintiff/Respondent: The People

          Steve M. Defilippis Picone & Defilippis Attorneys for Defendant/Appellant: Timothy J. Miller

          Grover, J.

         Defendant Timothy J. Miller appeals from an order denying his petition for a certificate of rehabilitation and pardon under Penal Code section 4852.01 et seq. As we will explain, the trial court properly denied the petition because Miller did not reside in California when he filed it. Penal Code section 4852.06 prohibits such a petition unless the petitioner has resided in California for the five-year period immediately preceding the date of filing.

         background

         Certificates of Rehabilitation

         A person convicted of a felony permanently loses certain rights and privileges under California law. Among other restrictions, convicted felons are not allowed to possess a firearm (Pen. Code, §29800, subd. (a)(1)), are disqualified from serving on a jury (Code Civ. Proc., § 203, subd. (a)(5)), and are prohibited from holding certain jobs (see, e.g., Gov. Code § 1029 [ineligibility for employment as a peace officer]). But a felon can have full rights and privileges restored by obtaining a pardon from the Governor. (Cal. Const., art. V, § 8; Pen. Code, § 4800 et seq.; Way v. Superior Court (1977) 74 Cal.App.3d 165, 176, fn. 12 [a pardon granted after conviction removes all penalties and disabilities and restores civil rights].)

         “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.” (People v. Ansell (2001) 25 Cal.4th 868, 874.) So in 1943 the Legislature enacted Penal Code section 4852.01 et seq., which created a procedure for persons convicted of a felony to petition the court for a “certificate of rehabilitation.” (Stats. 1943, ch. 400, § 1, p. 1922, eff. May 13, 1943.) Under that procedure, a felon who has been released from incarceration and demonstrated good conduct for a specified period[1] can apply to the superior court for a certificate of rehabilitation. (Pen. Code, § 4852.01. Unspecified statutory references are to this code.) If the court finds a petitioner meets the statutory requirements, it may issue a certificate of rehabilitation. The certificate is sent to the Governor as an application and recommendation for a pardon, which the Governor is authorized to grant without further investigation. (§§ 4852.13, 4852.16.)

         Penal Code Section 4852.01

         This appeal arises from a felony case in which probation was granted and a county jail term imposed. It requires us to interpret two sections of the certificate of rehabilitation statutory scheme: 4852.01 and 4852.06. In 1955, section 4852.01 was amended to exclude from those allowed to file a petition “persons who have served time in county jails only.” (Stats. 1955, ch. 708, § 1, p. 1198, eff. September 7, 1955.) But in 1976, the Legislature deleted the county jail exclusion and extended eligibility to felons who were granted probation and whose charges were later dismissed under section 1203.4 (the statute which allows dismissal of a charge after successful completion of probation). (Stats. 1976, ch. 434, § 2, p. 1111, eff. July 10, 1976.)

         The current version of section 4852.01 retains eligibility for felons granted probation, provided their charges were dismissed under section 1203.4 and they have five years of residence in California: “A person convicted of a felony … the accusatory pleading of which has been dismissed pursuant to Section 1203.4, may file a 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.” (§ 4852.01, subd. (b).)

         Penal Code Section 4852.06

         Additional requirements for obtaining a certificate of rehabilitation are contained in section 4852.06, including the one at issue here--that a petition can only be filed if the petitioner has resided in the state, after leaving prison or jail, for the five years immediately preceding the filing of the petition: “After the expiration of the minimum period of rehabilitation applicable to him or her and after the termination of parole, probation, postrelease supervision, or mandatory supervision, a person who has complied with the requirements of Section 4852.05 [requiring good conduct] may file in the superior court of the county in which he or she then resides a petition for ascertainment and declaration of the fact of his or her rehabilitation and of matters incident thereto, and for a certificate of rehabilitation under this chapter. A ...


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