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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. James Q. MATTHEWS, Defendant and Appellant.

No. F017310.

Decided: May 28, 1993

Richard L. Phillips, under appointment by the Court of Appeal, Sacramento, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Edgar A. Kerry and Robert P. Whitlock, Deputy Attys. Gen., for plaintiff and respondent.


Appellant James Q. Matthews appeals from the denial of his petition for a certificate of rehabilitation and pardon.   The sole issue presented is whether Penal Code section 4852.01, subdivision (c), which contains a three-year residence requirement,1 violates the equal protection clauses of the federal and California Constitutions.   Under the facts presented here, we hold that it does not.


Appellant pled guilty to violation of section 459, second degree burglary, on February 25, 1966.   At sentencing, he was placed on probation for a period of two years.   After successfully completing probation, on March 11, 1969, appellant was granted dismissal of the charge pursuant to section 1203.4.   In June 1971, appellant moved from Visalia, California to Oregon, where he now resides.

On December 26, 1991, pursuant to section 4852.01 et seq., appellant, as a resident of Oregon, filed a petition for certificate of rehabilitation and pardon in Tulare County Superior Court.   This petition was denied because appellant “wasn't a resident of the State of California for three years prior to the filing of the petition.”


The general authority to grant reprieves, pardons and commutations of sentences is conferred upon the Governor by article V, section 8 of the California Constitution which provides in relevant part:  “Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment.”   A full pardon operates:

“to restore to the convicted person all the rights, privileges, and franchises of which he or she has been deprived in consequence of that conviction or by reason of any matter involved therein;  provided, that nothing herein contained shall abridge or impair the power or authority conferred by law on any board or tribunal to revoke or suspend any right, privilege or franchise for any act or omission not involved in the conviction;  provided further, that nothing in this article shall affect any of the provisions of the Medical Practice Act ․ or the power or authority conferred by law on the Board of Medical Examiners therein, or the power or authority conferred by law upon any board that issues a certificate which permits any person or persons to apply his or her or their art or profession on the person of another.”  (§ 4853.)

In order to apply for a pardon, a person convicted of a felony who is not currently imprisoned must first obtain a certificate of rehabilitation and pardon.2  Statutory provisions governing the issuance of such certificates are contained in sections 4852.01 through 4852.21.   Section 4852.01, subdivision (c) provides:

“Any person convicted of a felony the accusatory pleading of which has been dismissed pursuant to Section 1203.4 may file a petition for certificate of rehabilitation and pardon pursuant to the provisions of this chapter;  provided the petitioner has not been incarcerated in any prison, jail, detention facility or any other penal institution or agency since the dismissal of the accusatory pleading and is not on probation for the commission of any other felony, and petitioner presents satisfactory evidence of three years residence in this state prior to the filing of the petition.”  (Emphasis added.)

Section 4852.06 gives further definition of the three-year residence requirement by stating, “No such petition shall be filed until and unless the petitioner has continuously resided in this state, after leaving prison, for a period of not less than three years immediately preceding the date of filing the petition.”

Appellant contends this three-year residence requirement violates the equal protection clauses of the federal and California Constitutions by excluding nonresidents from applying for a certificate of rehabilitation, thereby directly penalizing persons who exercise their fundamental right to travel.   He cites Dunn v. Blumstein (1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274.   In Dunn it was noted:

“Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period.   Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter․”  (Id. at p. 334, 92 S.Ct. at p. 999.)

Were we to identify the issue solely as one of durational residence, we might be compelled to agree, not only as to the effect on the right to travel, but also as to the constitutional invalidity of the three-year requirement.   However, implicit in the three-year residence requirement is that the petitioner (for the certificate of rehabilitation) must be a bona fide resident.   It is in this regard that appellant's argument fails.  “The Supreme Court has distinguished between bona fide residence requirements and durational residence requirements, finding only the latter violative of the right to travel.”  (Arredondo v. Brockette (5th Cir.1981) 648 F.2d 425, 428, affd.sub nom., Martinez v. Bynum (1983) 461 U.S. 321, 103 S.Ct. 1838, 75 L.Ed.2d 879.)

I. Standard of Review

 The equal protection clauses of the federal and state Constitutions are “essentially a direction that all persons similarly situated should be treated alike.”  (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313;  In re Eric J. (1979) 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d 549.)   The provisions of the California Constitution guaranteeing equal protection are “substantially the equivalent of the equal protection clause of the Fourteenth Amendment.”   (Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588, 43 Cal.Rptr. 329, 400 P.2d 321.)   Hence, “where the charge is that equal protection is denied, the effect of both constitutions is the same.”  (8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 603, pp. 57–58.)

 When confronted with the question of whether a statute operates to deny one of the right to equal protection under the law, the reviewing court must first determine the appropriate standard of review.   (Ayala v. Superior Court (1983) 146 Cal.App.3d 938, 942–943, 194 Cal.Rptr. 665.)   As discussed in Ayala at page 943, 194 Cal.Rptr. 665:

When reviewing legislative classifications under the equal protection clauses of the United States and California Constitutions, the classification is generally presumed to be constitutional.  [Citation.]  ‘However, once it is determined that the classification scheme affects a fundamental interest or right the burden shifts;  thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.’   [Citation.]”  (Emphasis omitted.)

 If a fundamental interest or a “suspect classification” is not at stake,3 the inquiry is less stringent because the reviewing court is merely “directed to the question of whether or not the statutory classification bears a ‘rational relationship’ to a conceivable legitimate state purpose.”  (Ayala v. Superior Court, supra, 146 Cal.App.3d at p. 943, 194 Cal.Rptr. 665;  see also People v. Jones, supra, 176 Cal.App.3d at p. 126, 221 Cal.Rptr. 382.)

 As previously noted, appellant argues the statutory scheme embodied in sections 4852.01 through 4852.21 affects a fundamental interest as it directly penalizes persons who exercise their fundamental right to travel and therefore is subject to strict scrutiny.   By his citation of durational residence cases, appellant appears to perceive the residence language as being exclusively durational.   Such perception is not entirely misplaced.   However, as we shall explain, there is a significant distinction to be made.   Typically, durational residence requirements involve the right to travel because they tend to discourage migration to the state involved.  (Memorial Hospital v. Maricopa County (1974) 415 U.S. 250, 257, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306.)   For example, in Memorial Hospital v. Maricopa County, the Supreme Court held that newcomers to Arizona, such as plaintiff, were being unconstitutionally denied basic necessities of life, such as free medical care, by an Arizona statute that included a durational residence requirement.   It was observed by the court that one may hesitate to move to a state with a durational residence requirement if one has a medical problem since that person would be unable to rely on that state for aid.  (Ibid.)

In all of the cases cited by appellant,4 the durational residence requirement was challenged by a person who had become a resident by moving to the state but was disenfranchised or otherwise unable to receive benefits because of insufficient time in the state.   In other words, no issue as to bona fide residence was ever presented.   In Dunn v. Blumstein, supra, 405 U.S. 330, 92 S.Ct. 995, the Supreme Court invalidated a one-year residence requirement for voting imposed on a law school professor who had recently moved to Tennessee but specifically noted no challenge was made to “Tennessee's power to restrict the vote to bona fide Tennessee residents.”  (Id. at p. 334, 92 S.Ct. at p. 999.)

In Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, the Supreme Court held unconstitutional a Connecticut law which denied welfare benefits to a young woman who had recently moved there on the basis that she had not fulfilled a one-year residence requirement.

We are not cited to any durational residence case in which the person challenging the offending statute had not first become a resident.

 This distinction is critical.   While durational residence requirements which affect the right to travel uniformly implicate the strict scrutiny test because they involve fundamental rights, mere or bona fide residence requirements generally are upheld as they rarely implicate the fundamental right of travel.

“A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents․  It does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there.   A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents.”   (Martinez v. Bynum, supra, 461 U.S. 321, 328–329, 103 S.Ct. 1838, 1842–1843, fn. omitted.)

“A bona fide residence requirement implicates no ‘suspect’ classification, and therefore is not subject to strict scrutiny.   Indeed, there is nothing invidiously discriminatory about a bona fide residence requirement if it is uniformly applied.   Thus the question is simply whether there is a rational basis for it.”  (461 U.S. at p. 328, fn. 7, 103 S.Ct. at p. 1842, fn. 7.)

We view the residence requirement in section 4852.01 as containing two distinct parts.   In order to apply for a certificate of rehabilitation, one must be a resident of California and have resided in this state three years immediately prior to application.   Therefore, we construe the section challenged as being both bona fide and durational.   In order to address the durational provision, one must first be a bona fide resident.

“As a technical matter, it makes no sense to say that one who has been a resident for a fixed duration is presumed to be a resident.   In order to meet the durational residence requirement, one must, by definition, first establish that he is a resident.   A durational residence requirement is not simply a waiting period after arrival in the State;  it is a waiting period after residence is established.”  (Dunn v. Blumstein, supra, 405 U.S. at p. 350, fn. 20, 92 S.Ct. at p. 1007.)

One could argue that the nature of the benefit involved, although itself not a fundamental right, implicates the right to travel in another sense.   Because it is obvious most ex-felons who would be applying for a certificate of rehabilitation were once, if not presently, residents of California, by the limitation of the right to apply for pardon to those who are residents at the time of petition, the ex-felon's right to migrate is affected.   In other words, in order to be eligible for pardon, the ex-felon cannot leave the state immediately prior to application.   Therefore, the argument would be that the right to travel is affected.

Typically, the right to travel is perceived as the right to enter a state.   In fact, in virtually all of the cases discussing the issue, the question is framed as the right of a state to set limitations on newly arrived residents.

In Fisher v. Reiser (9th Cir.1979) 610 F.2d 629, 633, certiorari denied 447 U.S. 930, 100 S.Ct. 3029, 65 L.Ed.2d 1124, a divided court held that the right to travel is not invoked by migration from a state which denies benefits to nonresidents.   In Fisher, plaintiff challenged a revision to the Nevada worker's compensation benefits plan which allowed cost of living increases for Nevada residents, but denied them to nonresidents.   Plaintiff and her deceased husband had been residents of Nevada during the husband's initial entitlement but had subsequently moved to California where plaintiff continued to reside at the time she mounted her challenge.

Judge Kennedy, writing for the majority, found the distinction between state of new residence and state of former residence decisive:

“here the claimants seek to enforce an obligation against the state of former residence.   The distinction is critical.   Any primary obligation to ascertain a citizen's economic status or condition and to make provision for his or her well-being falls upon the state of current residence, not the state where the citizen formerly resided.   It is a fact of our federal system that a state is limited, both in its competence and its responsibility, to exercising its welfare powers for those persons who are its residents, and, perhaps in some cases, those temporarily within its borders.   We find no authority for the broad proposition that Nevada must pass prospective legislation with reference to the subsistence or economic well-being of persons formerly residing in it but who are now resident elsewhere, or include former residents in statutes passed to aid current residents.   In Shapiro, Dunn, and Maricopa County, on the other hand, the state with whom the claimant had a new and existing political relation refused to recognize that status without the imposition of a durational waiting period.   That period discriminated against those who had recently exercised their right of interstate migration.”  (610 F.2d at pp. 633–634, fn. omitted.)

Fisher cites Califano v. Torres (1978) 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 as making it clear that states are not compelled under the right to travel to provide benefits to any persons who formerly resided there, and then states:

“While we are not prepared to say that a state may never be held to have some continuing duties to a former resident, we do not think such obligations can be measured automatically by the standards set forth in Shapiro and Maricopa County, even assuming the claims asserted here were in all respects comparable.   To do so would be inconsistent with state jurisdictional limitations based on territorial boundaries and the concept of residence, jurisdictional limitations that are a principal feature of our federal system.   We are reluctant to impose upon states fiscal burdens that are not coterminous either with their taxing power or their general jurisdiction.”  (610 F.2d at p. 634, fn. omitted.)

Notwithstanding our citation of the majority opinion in Fisher, we are reluctant to predicate our conclusion here that the right to travel is unaffected merely because it is in the emigration context.   We see merit in the vigorous dissent of Judge Hufstedler in which she opines the distinction between cases filed by new residents of a state and those filed by former residents “has no constitutional significance because interstate travel is not a one-way road.”  (610 F.2d at p. 640.)

 Rather, our conclusion that the right to travel is unaffected in the instant case goes beyond an immigration/emigration analysis.   In fact, it is even more basic.   Addressing only the bona fide residence prong of the statute in question, we discern no effect on the right to travel.   An appropriately defined and uniformly applied residence requirement does not violate the right to travel in and of itself.  (Cf. Memorial Hospital v. Maricopa County, supra, 415 U.S. at p. 255, 94 S.Ct. at p. 1080.)

Here, there is no express requirement that the petitioner continue to reside within California after the filing of the petition.   We contrast the instant case with the concern expressed by Judge Hufstedler that the increased workers' compensation benefits are payable only to those who continue to reside within Nevada.  (Fisher v. Reiser, supra, 610 F.2d at p. 639.)

 As must be obvious by now, the preliminary determination of whether section 4852.01 is only durational or is capable of being viewed as both bona fide and durational has a significant consequence.   It is that characterization which typically determines the standard of review accorded a challenged statute.   As we have previously stated, durational statutes usually compel employment of strict scrutiny, while bona fide residence statutes employ a rational basis test.5  As explained by one noted scholar, the former is “scrutiny that was ‘strict’ in theory and fatal in fact;  in other contexts, the deferential ‘old’ equal protection reigned, with minimal scrutiny in theory and virtually none in fact.”  (Gerald Gunther, Foreword:  In Search of Evolving Doctrine on a Changing Court:  A Model For a Newer Equal Protection (1972) 86 Harvard L.Rev. 1, 8.) 6

II. Application of the Rational Basis Standard

 “[U]nless a statute impairs fundamental rights or involves an inherently suspect classification ‘legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.’  [Citations.]”  (Cf. Del Monte v. Wilson (1992) 1 Cal.4th 1009, 1014, 4 Cal.Rptr.2d 826, 824 P.2d 632, cert. den. 506 U.S. 984, 113 S.Ct. 490, 121 L.Ed.2d 429.)   Here, of course, the classification is resident ex-felons.7

 Generally, it is held that a bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents.  (Martinez v. Bynum, supra, 461 U.S. at p. 328, 103 S.Ct. at p. 1842.)

In Sosna v. Iowa (1975) 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532, the United States Supreme Court upheld a one-year Iowa durational residence requirement for divorce.   After first noting that domestic relations is an area long considered a “virtually exclusive province of the States” (id. at p. 404, 95 S.Ct. at p. 559), the court stated, inter alia, that because significant consequences flow from divorce decrees from its courts (e.g., provisions for child custody and support), Iowa had the right to insist upon a modicum of attachment to the state.   In other words, residents with less than one year of residence (and obviously, nonresidents ) did not have the right to court access for such purpose.  (Id. at pp. 406–407, 95 S.Ct. at pp. 560–561.)   Just as the subject of domestic relations is inherently confined to state jurisdiction, so too are pardons by the governor necessarily linked to state crimes.

Section 4852.1 8 vests in the court the discretion to receive any testimony and other evidence as deemed necessary by the court.   Section 4852.1 also provides that all records relating to the crime, petitioner's commitment, and parole records are to be provided free of charge to the petitioner.  “While the value of all of this data on such a hearing is obvious, it is submitted that its preparation and production may be no easy or cheap matter.”   (The Work of the 1943 California Legislature (1943) 17 So.Cal.L.Rev. 1, 44.)   With the amount of time and expense attendant in investigating and determining the validity of petitions for such certificates,9 we find a rational basis in limiting such expenditure to California residents.10  Moreover, we note a legitimate state interest in limiting the benefits of pardon to California residents as a pardon would obviously enhance the employability and productivity of its residents.  (See, for example, Bus. & Prof. Code, § 480 and Ed. Code, § 44008, which generally deny business licensing and teacher certification, respectively, to felons, but preclude denial on that basis if a certificate of rehabilitation is obtained.)

Our conclusion makes it unnecessary to decide the issue in a durational residence context.   However, we would be remiss if we did not mention in passing that our research has uncovered no durational residence requirement in excess of one year affecting a fundamental right which has been upheld by the United States Supreme Court or the California courts.  (See, e.g., Martinez v. Newton (1973) 8 Cal.3d 756, 106 Cal.Rptr. 105, 505 P.2d 529, four-year residence requirement for the office of city council contravened equal protection rights;  Zeilenga v. Nelson (1971) 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578, five-year requirement for county supervisor's position was held invalid.)


The judgment is affirmed.


1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   An alternative procedure for individuals currently incarcerated is provided in sections 4802 et seq.  (See generally 3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Punishment for Crime, §§ 1772–1776, pp. 2090–2092.)   Although section 4852.19 expressly states that the certificate of rehabilitation and pardon provides an additional, but not exclusive procedure for the restoration of rights and application for pardon, it is not clear how efficacious other provisions for pardon are.

3.   The right to pardon is not fundamental.   In People v. Jones (1985) 176 Cal.App.3d 120, 126–127, 221 Cal.Rptr. 382, the Second District Court of Appeal explicitly ruled that the right to seek a certificate of rehabilitation and pardon is not a fundamental interest analogous to the right to vote or to an education.   The Jones court concluded “the strict scrutiny analysis should not apply” to the classification at issue.   Thus, the court analyzed whether section 4852.01 violated appellant's right to equal protection because it distinguishes between former probationers and former state prisoners under the “rational relationship” test.  (Id. at p. 127, 221 Cal.Rptr. 382.)   However, while Jones involved an equal protection challenge to section 4852.01, the court was not faced with a categorization based on appellant's residence status;  rather, the challenged categorization concerned only the alleged disparate treatment between in-state former probationers and in-state former state prisoners.   Therefore, Jones is not determinative here.

4.   We distinguish the cases of Attorney General of N.Y. v. Soto–Lopez (1986) 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 and Zobel v. Williams (1982) 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672, cited by appellant, by the issue raised in each.   In Soto–Lopez, the issue presented was “whether a preference in civil service employment opportunities offered by the State of New York solely to resident veterans who lived in the State at the time they entered military service violates the constitutional rights of resident veterans who lived outside the State when they entered military service.”  (476 U.S. at p. 899, 106 S.Ct. at 2319.)   In Zobel the issue presented was “whether a statutory scheme by which a State distributes income derived from its natural resources to the adult citizens of the State in varying amounts, based on the length of each citizen's residence, violates the equal protection rights of newer state citizens.”  (457 U.S. at p. 56, 102 S.Ct. at p. 2310.)Neither case is of assistance to appellant on the facts presented here.   In fact, it was expressly noted in Soto–Lopez that, “We have always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State.”  (476 U.S. at p. 903, fn. 3, 106 S.Ct. at p. 2321, fn. 3.)

5.   In a letter received by this court prior to oral argument, appellant, for the first time, raised the application of the “Privileges and Immunity Clause” of article IV, section 2 of the United States Constitution and specifically the case of Supreme Court of New Hampshire v. Piper (1985) 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205.   Beyond citation of Piper, appellant has not attempted to argue how the “Privileges and Immunity Clause” affects his right to apply for pardon as a nonresident.Piper does not compel such a result, as that case involved a state's refusal to issue a bar license to a nonresident attorney applicant.   Finding the practice of law to be a fundamental right, the court also noted the long-recognized privilege of a nonresident to engage in business on an equal footing with residents of a particular state.  (470 U.S. at pp. 280–281, 105 S.Ct. at pp. 1272.)We reiterate here that no fundamental right has been successfully identified by appellant.

6.   In Dunn v. Blumstein, supra, 405 U.S. at pages 363–364, 92 S.Ct. at page 1013, Chief Justice Burger noted in dissent:  “To challenge such lines [limiting the right to vote] by the ‘compelling state interest’ standard is to condemn them all.   So far as I am aware, no state law has ever satisfied this seemingly insurmountable standard, and I doubt one ever will, for it demands nothing less than perfection.”

7.   No contention is made that ex-felons comprise a suspect classification.   In any event Kindem v. City of Alameda (N.D.Cal.1980) 502 F.Supp. 1108 opined otherwise.

8.   Section 4852.1 provides:  “The court in which the petition is filed may require such testimony as it deems necessary, and the production, for the use of the court and without expense of any kind to the petitioner, of all records and reports relating to the petitioner and the crime of which he was convicted, including the record of the trial, the report of the probation officer, if any, the records of the prison, jail, detention facility, or other penal institution from which the petitioner has been released showing his conduct during the time he was there, the records of the penal institution or agency doctor and psychiatrist, the records of the parole officer concerning him if he was released on parole, the records of the Youth Authority concerning him if he has been committed to the authority, and written reports or records of any other law enforcement agency concerning the conduct of the petitioner since his release on probation or parole or discharge from custody.   All persons having custody of any such records shall make them available for the use of the court in the proceeding.”

9.   We are not swayed by appellant's argument the statute does not require investigation in every case.   The fact that investigation is contemplated and may be ordered is sufficient.

10.   We contrast the validity of the consideration of expense in a rational basis standard to the invalidity of the same consideration in a compelling state interest standard.  “The conservation of the taxpayers' purse is simply not a sufficient state interest to sustain a durational residence requirement” which impairs a fundamental right.  (Memorial Hospital v. Maricopa County, supra, 415 U.S. at p. 263, 94 S.Ct. at p. 1084.)

BUCKLEY, Associate Justice.

ARDAIZ, Acting P.J., and DIBIASO, J., concur.

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Docket No: No. F017310.

Decided: May 28, 1993

Court: Court of Appeal, Fifth District, California.

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