PEOPLE v. WOODSON

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Michael E. WOODSON, Defendant and Appellant.

No. A083204.

Decided: December 07, 1999

Michael Woodson, in pro. per. Bill Lockyer, Attorney General, David Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, John R. Vance, Jr., Deputy Attorney General, Counsel for Respondent.

Michael E. Woodson appeals from an order denying his petition for a certificate of rehabilitation.  (Pen.Code,1 § 4852.01, et seq.)  Appellant contends that the trial court erroneously denied the petition as premature because its application of the 1996 amendment to section 4852.03 to him violates ex post facto prohibitions.   We affirm.

FACTUAL BACKGROUND

On February 6, 1987, appellant was convicted of embezzlement and sentenced to 10 years in state prison.   Execution of that sentence was suspended and appellant was placed on probation.   On June 4, 1990, appellant was found in violation of probation and sentenced to state prison for the previously suspended term.   Appellant was paroled on December 29, 1992.

On January 28, 1998, appellant filed a petition for a certificate of rehabilitation pursuant to section 4852.01.   On May 26, 1998, the trial court denied the petition as premature, finding that appellant could not file the petition until after December 29, 1999.   In so ruling, the trial court applied the current version of section 4852.03.

DISCUSSION

At the time of appellant's conviction in 1987, section 4852.03 provided in relevant part:  “(a) The period of rehabilitation shall begin to run upon the discharge of the petitioner from custody due to his or her completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner.   For purposes of this chapter, the period of rehabilitation shall constitute three years' residence in this state, plus a period of time determined by the following rules:․  [¶] (2) To the three years there shall be added two years in the case of any person convicted of committing any offense which is not listed in paragraph (1) and which does not carry a life sentence ․ [¶] (b) Unless and until the period of rehabilitation, as stipulated in this section, has passed, the petitioner shall be ineligible to file his or her petition for a certificate of rehabilitation with the court.”  (Former § 4852.03, italics added.)   Effective January 1, 1997, the base residency requirement in section 4852.03, subdivision (a) was increased from three to five years.  (Stats.1996, ch. 981, § 3, No. 11 West's Cal. Legis. Service, p. 4655.)   This five-year term, plus the two additional years provided in section 4852.03, subdivision (a)(2), extended the waiting period to seven years for offenses like the one appellant committed.

Appellant contends that application of section 4852.03 as amended in 1996 to his case constitutes additional punishment in violation of the United States and California constitutional prohibitions against ex post facto laws.  (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434 [equating federal and California ex post facto standards].)

In People v. Castellanos (1999) 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211, our Supreme Court recently addressed the applicable considerations in determining whether a particular statutory requirement constitutes punishment for purposes of ex post facto analysis.   There, the court considered whether the amendment to section 290 requiring defendants convicted of certain crimes to register as sex offenders constituted an increase in punishment in violation of the ex post facto clauses of the federal and state constitutions.   The Court determined that there were two factors to consider in resolving the issue of whether the provision constituted punishment:  “whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent.”   (Id. at p. 795, 88 Cal.Rptr.2d 346, 982 P.2d 211, fn. omitted.)   The Court concluded that the Legislature did not intend that the registration requirement be punishment.   The court noted that the requirement served the important and remedial purpose of furthering the state's interest in controlling crime and preventing recidivism.  (Id. at p. 785, 88 Cal.Rptr.2d 346, 982 P.2d 211.)   The Court further determined that the registration requirement was not so punitive that it could be considered punishment despite the Legislature's contrary intent.  “Although registration imposes a substantial burden on the convicted offender, this burden is no more onerous than necessary to achieve the purpose of the statute.”  (Castellanos, supra, at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211, fn. omitted.)   The court therefore held that the sex offender registration requirement did not violate ex post facto prohibitions.

The provision in question here extending the waiting period before a petitioner can apply for a certificate of rehabilitation similarly does not constitute punishment for purposes of ex post facto analysis.   The sex offender registration provision examined in Castellanos serves an important regulatory goal-that of furthering the state's interest in preventing sex offender recidivism by ensuring such offenders can readily be located by law enforcement.  (People v. Castellanos, supra, 21 Cal.4th at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211.)   Similarly section 4852.03 is part of a statutory scheme with the regulatory goal of ensuring “that the reformative or rehabilitative purpose of probation has continued to succeed.”  (People v. Jones (1985) 176 Cal.App.3d 120, 129, 221 Cal.Rptr. 382.)   During the additional two years during which a petitioner now must wait before he seeks a certificate of rehabilitation he must continue to demonstrate his rehabilitation by obeying the law. (§ 4852.05.) We infer it was the Legislature's intent to obtain adequate proof of rehabilitation by extending the period before a certificate may be sought.   Moreover, section 4852.01 does not provide an exclusive procedure for obtaining a pardon. (§ 4852.19.) While a certificate of rehabilitation constitutes an application to the Governor for a full pardon (§ 4852.16), a petitioner may apply directly to the Governor for a pardon. (§ 4852.01, subd. (e).)  Although the extension of the rehabilitation period from three to five years makes it more difficult for an ex-felon to receive and maintain a certificate of rehabilitation, the additional waiting period is not so punitive in fact that it must be regarded as punishment and its burden is no more onerous than that necessary to achieve the statutory purpose of effecting rehabilitation.  (See People v. Castellanos, supra, 21 Cal.4th at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211.)   Like the sex offender registration requirement, the additional waiting period here does not constitute punishment for purposes of the ex post facto doctrine.2

Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469, relied upon by appellant, addressed a 1981 amendment to section 4852.03 which also prolonged the waiting period before a petitioner could apply for a certificate of rehabilitation.   While the Sovereign court held that retroactive application of the amendment to section 4852.03 violated the constitutional prohibitions against ex post facto laws because the extension of the waiting period constituted punishment, its analysis cannot be reconciled with Castellanos.   Accordingly, we conclude that Sovereign is no longer viable.

DISPOSITION

The order is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

2.   In light of this conclusion, section 3, barring retroactive application of the Penal Code absent legislative intent to the contrary, is not implicated.  (See People v. Teron (1979) 23 Cal.3d 103, 116-117, 151 Cal.Rptr. 633, 588 P.2d 773, disapproved on other grounds in People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7, 170 Cal.Rptr. 798, 621 P.2d 837.)

HANLON, P.J.

POCHÉ, J., and SEPULVEDA, J., concur.

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