Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Sacramento County, No. 98F00621, Michael G. Virga, Judge. COUNSEL
William O'Neill III for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
NICHOLSON, Acting P. J.
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, section 4852.01, subd. (d).) On appeal, defendant contends the statutory bar to his application violates the ex post facto prohibition. We affirm. FACTS
All further undesignated statutory references are to the Penal Code.
In 1980, defendant was convicted for violations of sections 288a, subdivisions (b) and (c), and 288, subdivision (a), in Orange County. 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.
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 ...."
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 ....' "
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.
ARGUMENT
The Penal Code provides a procedure by which a felon may petition for a certificate of rehabilitation and pardon in the superior court. (section 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. (section 4852.01, subd. (d).)
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.
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. (Collins v. Youngblood, supra, 497 U.S. at p. 42 [110 S.Ct. at p. 2719].) 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].)
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, 2719, 111 L.Ed.2d 30]. Accordingly, we follow the Collins clarification.
The statutory procedure "shall be construed as providing an additional, but not an exclusive, procedure for the restoration of rights and application for pardon." (section 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. (section 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. (section 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.
DISPOSITION
The judgment (order) is affirmed.
Morrison, J., and Kolkey, J., concurred.