PEOPLE v. WOODSON (1999)

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.   We agree and therefore reverse the order with instructions to determine the petition on the merits.

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, 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].)  He also argues that the court's retrospective application of section 4852.03 violates section 3.

 Section 3 provides that no provision of the code “is retroactive unless expressly so declared.”   Hence, as a general rule, criminal statutes are applied prospectively only, in the absence of a legislative intent to the contrary.  (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, see, also People v. Acosta (1996) 48 Cal.App.4th 411, 416; , 55 Cal.Rptr.2d 675 1 Witkin & Epstein, Cal.Criminal Law (2d ed.   1988) Introduction to Crimes, § 37, p. 46.)   Here, section 4853.03 is silent on the question of retrospectivity.   There is thus no reason to depart from the ordinary rule that the statute is intended to apply prospectively.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434.)   Amendments to the Penal Code “which change the legal consequences of criminal behavior to the detriment of defendants, cannot be applied to crimes committed before the measure's effective date.”  (Id. at p. 297, 279 Cal.Rptr. 592, 807 P.2d 434.)   We hold therefore that section 4852.03 as amended in 1996 applies prospectively only.

 Further, we conclude that even if section 4852.03 applies retrospectively, application of the 1996 amendment to section 4852.03 to appellant violates the rule against ex post facto legislation.   Under former section 4852.03, appellant was eligible to petition for a certificate of rehabilitation on December 29, 1997, five years after December 29, 1992, when he was released on parole.   The 1996 amendment to section 4852.03, which increased the waiting period to seven years, did not constitute merely a change in procedure as the People argue, but resulted in additional punishment thereby violating ex post facto prohibitions.

In Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469, the Court of Appeal for the Fourth Appellate District persuasively addressed the same issue we face today.   A 1981 amendment to section 4852.03 prolonged the waiting period before a petitioner could apply for a certificate of rehabilitation from three years plus an additional thirty days for each year of the maximum statutory term for the offense, to three years plus two additional years regardless of the maximum statutory term.  (Id. at p. 146, 192 Cal.Rptr. 469.)   The waiting period for the petitioner in Sovereign commenced nearly three years before the amendment went into effect on January 1, 1981.   The petitioner was granted a certificate of rehabilitation on August 31, 1981.   Nearly a year later, the People moved to vacate the grant as void under the 1981 amendment.   Application of the amendment would have made the petitioner ineligible for relief until April 27, 1983.

The issue presented was whether the amendment could be retroactively applied to increase the petitioner's waiting period.   The Sovereign court concluded that retroactive application of the amendment to section 4852.03 would have been “a manifest violation of the constitutional prohibitions against ex post facto laws.”  (Sovereign v. People, supra, 144 Cal.App.3d at p. 154, 192 Cal.Rptr. 469.)

The court determined that the deprivation of substantive civil and political rights resulting from extension of the waiting period was indeed punishment.   (Sovereign v. People, supra, 144 Cal.App.3d at pp. 153-154, 192 Cal.Rptr. 469.)   The court observed that a parolee, probationer or ex-felon suffers numerous losses as a result of a felony conviction, only the first of which may be imprisonment.  (Id. at p. 148, 192 Cal.Rptr. 469.)   Statutory disabilities resulting from a felony conviction include loss of the right to vote, sit on a jury, serve as a city, county or state official, or possess a firearm, as well as exclusion from a host of trades and professions.  (Id. at pp. 148-149, 192 Cal.Rptr. 469.)   The court noted that these disabilities are imposed as penalties for the commission of a crime, and that increasing the waiting period before a petitioner can apply for a certificate of rehabilitation prolongs the time he is subject to these penalties.  (Id. at p. 149, 192 Cal.Rptr. 469.)   The court reasoned that “[I]f denying persons their civil and political rights, disqualifying them from office, excluding them from positions of trust or employment, and revoking their privilege of appearing in the courts constitutes ‘punishment,’ then surely prolonging the time that ex-prisoners remain subject to these penalties constitutes punishment․”  (Id. at p. 154, 192 Cal.Rptr. 469.) ²

This same reasoning applies with equal force today.   The People's present argument that Sovereign is no longer good law is unpersuasive.

 As the ex post facto prohibition is currently interpreted, three categories of legislation are prohibited:  1) legislation which punishes as a crime acts previously committed, which were innocent when done;  2) legislation which makes more burdensome the punishment for a crime, after its commission;  or 3) legislation which deprives one charged with a crime of any defense available at the time when the act was committed.  (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30.)   In enumerating these three categories of prohibited legislation, the United States Supreme Court overruled a long line of cases holding that a law violates the ex post facto rule if it eliminates a “substantial protection” in place at the time the offense was committed, and returned to the analysis set forth in Beazell v. Ohio (1925) 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 and Calder v. Bull (1798) 3 U.S. (Dall) 386, 390, 1 L.Ed. 648.  “After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ ․ but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.”  (California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506-507, fn. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588;  see also Pro Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1683, 54 Cal.Rptr.2d 600.)   Today, to determine whether a statute is punitive, courts look at the effect of the statutory language and the legislative purpose of the statute.  (People v. McVickers (1992) 4 Cal.4th 81, 85, 13 Cal.Rptr.2d 850, 840 P.2d 955.)

Essentially the same standards and analysis were applied by the Sovereign court.   Quoting Calder v. Bull, supra, 3 U.S. (Dall) at p. 390, Sovereign noted that ex post facto principles prohibited “ ‘[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.’ ”  (Sovereign v. People, supra, 144 Cal.App.3d at p. 150, 192 Cal.Rptr. 469.)  Sovereign explained at length why extension of the waiting period for a certificate of rehabilitation has a punitive effect.   The manifest purpose of the extension is to prolong that effect.   As recently stated in People v. Lockwood (1998) 66 Cal.App.4th 222, 226, 77 Cal.Rptr.2d 769, the latest extension “reflect[s] the Legislature's obvious intent to apply stricter standards to the application process, and to make it more difficult for ex-felons to receive and maintain certificates of rehabilitation.”   Accordingly, we conclude that Sovereign is still viable.

For the reasons set forth in Sovereign, we reject the People's contention that extension of the waiting period is not punishment but simply a procedural change that does not implicate ex post facto prohibitions.   As Sovereign explained, the delay in obtaining a certificate of rehabilitation extends the time in which a petitioner suffers the penalties of a felony conviction, and those penalties may have a major impact on the petitioner's life.   Appellant's situation is unlike the one in California Dept. of Corrections v. Morales, supra, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588, where the risk of increased punishment attached to the crime was speculative and attenuated.   Here, the applicable penalties would be extended for a definite and specific period of two years.

In sum, the trial court erred in applying section 4852.03 as amended in 1996 to appellant because the amendment applies prospectively only.   Even if section 4852.03 was retroactive and applicable to appellant, its application to him operates as punishment and therefore violates the ex post facto prohibitions of our state and federal constitutions.

DISPOSITION

The May 26, 1998, order finding that appellant is ineligible to petition for a certificate of rehabilitation is reversed, with instructions to determine the petition on the merits.

FOOTNOTES

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

2.   After receiving a certificate of rehabilitation, the petitioner is in a position to obtain a pardon from the governor, which would restore rights lost as a result of the felony conviction.  (See §§ 4852.17, 4853, 4854.)

HANLON, P.J.

POCHÉ, J., and SEPULVEDA, J., concur.