The PEOPLE, Plaintiff and Respondent, v. Samuel Earl ANSELL, Jr., Defendant and Appellant.
Defendant appeals from the trial court's denial of his petition for a certificate of rehabilitation and pardon. The trial court found defendant was statutorily ineligible for the certificate because his convictions were for sexual offenses. (See Pen.Code, § 4852.01, subd. (d).) 1 On appeal, defendant contends the statutory bar to his application violates the ex post facto prohibition. We affirm.
In 1980, defendant was convicted for violations of sections 288a, subdivisions (b) and (c), and section 288, subdivision (a), in Orange County.2 He was committed to Patton State Hospital for an indeterminate term. In 1983, he was released from the state hospital. The trial court modified his sentence to five years formal probation, and defendant was required to register as a sexual offender. In 1997, he was released from all penalties and disabilities resulting from the 1980 convictions pursuant to section 1203.4.3
In January 1998, defendant petitioned for a certificate of rehabilitation and pardon for his 1980 felony convictions. The trial court found him statutorily ineligible for the certificate due to the nature of his offenses.
The Penal Code provides a procedure by which a felon may petition for a certificate of rehabilitation and pardon in the superior court. (§ 4852.01 et seq.) A certificate constitutes an application for a full pardon upon transmission to the Governor. Effective January 1998, the California Legislature amended section 4852.01 to prohibit “persons convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289,” from obtaining such a certificate.4 (§ 4852.01, subd. (d).)
Defendant contends because the Legislature amended section 4852.01 to exclude persons convicted of certain sexual offenses after he committed and was convicted of his crimes, applying the statute to him constitutes an ex post facto violation. We disagree.
A criminal or penal law violates the ex post facto prohibition if it makes more burdensome the punishment for a crime after its commission.5 (Collins v. Youngblood, supra, 497 U.S. at p. 42, 110 S.Ct. 2715.) The inquiry is not whether the law results in a disadvantage to the person affected, but whether it increases the penalty by which a crime is punished. (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)
The statutory procedure “shall be construed as providing an additional, but not an exclusive, procedure for the restoration of rights and application for pardon.” (§ 4852.19.) If a trial court grants a section 4852.01 certificate, a pardon is not automatic. The certificate constitutes an application for a full pardon, which the Governor may, but is not required to, grant. (§ 4852.16.) Without the section 4852.01 procedure, defendant may still petition the Governor directly. And, under the statutory procedure, the Governor has the authority to pardon a person convicted of defendant's crimes if there are extraordinary circumstances. (§ 4852.01, subds.(d), (e).)
Defendant previously was released from the penalties and disabilities resulting from his 1980 offenses pursuant to section 1203.4. He is free to apply directly to the Governor for a pardon. The amendment to section 4852.01 did not increase the penalty for defendant's crime; rather, it prevents him from using an “additional but not exclusive” procedure for seeking discretionary relief from the Governor. We find no ex post facto violation.
The judgment (order) is affirmed.
1. All further undesignated statutory references are to the Penal Code.
2. The documents in the record do not expressly show whether defendant was convicted by trial or plea in the underlying action. However, the Orange County Superior Court's order, quoting section 1203.4, states under the requisite circumstances the court may permit a defendant “to withdraw his plea of guilty or plea of nolo contendere and enter a plea of not guilty․”
3. The Orange County Superior Court's order quotes section 1203.4 as follows: “ ‘In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his plea of guilty or plea of nolo contendere and enter a plea of not guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted․’ ”
4. Section 4852.01, subdivision (d), also prohibits “persons serving a mandatory life parole, persons committed under death sentences,” and “persons in the military service” from obtaining such a certificate.
5. Defendant analogizes his position to Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469, in which a lengthier waiting period was deemed to constitute an ex post facto violation. However, the United States Supreme Court subsequently clarified the considerations in analyzing ex post facto violations in Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30. Accordingly, we follow the Collins clarification.
NICHOLSON, Acting P.J.
MORRISON, J., and KOLKEY, J., concur.