Filed 12/9/22 P. v. Garrett CA4/2 See concurring opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077770
v. (Super.Ct.No. FELRS21000004)
PAUL GARRETT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Reversed.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Amanda
Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant Paul Garrett appeals from a trial court’s denial of his
petition for a certificate of rehabilitation and pardon under Penal Code 1 section 4852.01.2
He concedes that the court correctly concluded he was statutorily ineligible for the
certificate of rehabilitation, but argues that the interaction between sections 4852.01 and
1203.4, which excludes him from relief, violates his right to equal protection. We agree
and reverse.
PROCEDURAL BACKGROUND
On April 12, 2021, defendant filed a petition for certificate of rehabilitation and
pardon pursuant to section 4852.01. The petition alleged that on or about June 12, 2000,
he was convicted of misdemeanor possession of obscene matter involving a minor
(§ 311.11, subd. (a)) and felony distribution of obscene matter involving a minor to a
minor (§ 311.2, subd. (d)). Defendant alleged that he was placed on probation and
completed his probation on June 12, 2005. He also filed an equal protection motion in
support of his petition for a certificate of rehabilitation and pardon. He explained that he
pled guilty to violating sections 311.11 and 311.2 pursuant to a plea agreement and was
placed on probation for five years, and he had since “lived an honest and upright life.”
1 All further statutory references will be to the Penal Code unless otherwise indicated.
2 The preprinted form petition for a certificate of rehabilitation refers to sections 4852.01 and 4852.06. Section 4852.06 specifies further requirements to be eligible for a certificate of rehabilitation that are not relevant to this appeal. Thus, for the sake of simplicity, this opinion will simply refer to section 4852.01. 2 Defendant asserted that he could obtain a certificate of rehabilitation and pardon only
after having had his convictions dismissed pursuant to section 1203.4. However, a 2013
amendment to section 1203.4 excluded various sex offenses, including his, from being
dismissed. Meanwhile, persons who were sentenced to prison for the same offenses were
eligible to obtain a certificate of rehabilitation and pardon. Defendant argued this
unequal treatment violated his equal protection rights.
At a hearing on September 17, 2021, the trial court denied defendant’s petition,
stating: “I have taken a very careful look at this case and the issues that are presented,
including the equal protection argument. And I have reviewed similar cases. I can’t find
any that are directly on point, because the law changed so recently, in July of 2021. [3]
Based on my reading of the law, I have no discretion to grant the relief sought. So I’m
going to deny the petition, encourage counsel to take the matter up to the Court of Appeal
to address the equal protection argument.”
Defendant filed a timely notice of appeal.
DISCUSSION
Excluding Defendant from Obtaining a Certificate of Rehabilitation and Pardon Violates
His Right to Equal Protection
Defendant argues that excluding him from obtaining a certificate of rehabilitation
and pardon, pursuant to sections 4852.01 and 1203.4, violates his right to equal
protection. He states that because his convictions under sections 311.11 and 311.2 cannot
3 It is unclear what changes to the law the court was referring to since the court was not specific. 3 be dismissed under section 1203.4, he cannot obtain a certificate of rehabilitation and
pardon under section 4852.01. He contends he is similarly situated to former prisoners
convicted of the same offenses, who are eligible for relief under section 4852.01,
subdivision (a), and there is no “apparent benefit to the state from a statutory regime that
singles out less culpable individuals for harsher treatment.” We agree that excluding
probationers convicted of the same offenses as prisoners from eligibility for a certificate
of rehabilitation and pardon violates equal protection where the probationers successfully
completed probation and have lived a crime-free life since their conviction.
A. Relevant Law
Section 4852.01, subdivision (a), provides: “A person convicted of a felony who
is committed to a state prison or other institution or agency, including commitment to a
county jail . . . may file a petition for a certificate of rehabilitation and pardon pursuant to
the provisions of this chapter.” Subdivision (b) states: “A person convicted of a felony
or a person who is convicted of a misdemeanor violation of any sex offense specified in
Section 290, the accusatory pleading of which has been dismissed pursuant to Section
1203.4, may file a petition for certificate of rehabilitation and pardon . . . .” (§ 4852.01,
subd. (b).)
Section 1203.4 “allows former probationers to move for their conviction to be
dismissed upon successful completion of probation terms.” (People v. Chatman (2018) 4
Cal.5th 277, 282 (Chatman).) “[F]elons for whom ‘the accusatory pleading’ of the
underlying felony conviction ‘has been dismissed pursuant to Section 1203.4’ are eligible
only if they (1) have ‘not been incarcerated in a prison, jail, detention facility, or other 4 penal institution or agency since the dismissal of the accusatory pleading’; (2) ‘[are] not
on probation for the commission of any other felony’; and (3) ‘present[] satisfactory
evidence of five years’ residence in this state prior to the filing of the petition.’ ”
(Chatman, at p. 286; see § 4852.01, subd. (b).)
Section 1203.4 does not apply to specified offenses, including offenses relating to
child pornography—§§ 311.1, 311.2, 311.3, and 311.11. (§ 1203.4, subd. (b).) Thus,
former probationers convicted of these offenses cannot obtain relief under section
4852.01 since they cannot meet subdivision (b)’s requirement that their accusatory
pleading be dismissed under section 1203.4.
B. There is No Rational Basis for the Disparate Treatment of Former Prisoners
and Former Probationers Under Sections 4852.01 and 1203.4
“Both the state and federal Constitutions extend to persons the equal protection of
law.” (Chatman, supra, 4 Cal.5th at p. 287.) “At core, the requirement of equal
protection ensures that the government does not treat a group of people unequally without
some justification.” (Id. at p. 288.) “The first prerequisite to a meritorious claim under
the equal protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner . . . for purposes of
the law challenged.” (People v. Moreno (2014) 231 Cal.App.4th 934, 941.) “ ‘In other
words, we ask at the threshold whether two classes that are different in some respects are
sufficiently similar with respect to the laws in question to require the government to
justify its differential treatment of these classes under those laws.’ ” (People v. Foster
(2019) 7 Cal.5th 1202, 1212 (Foster).) “ ‘The next step of an equal protection analysis 5 asks whether the disparate treatment of two similarly situated groups is justified by a
constitutionally sufficient state interest.’ ” (People v. Hardin (2022) 84 Cal.App.5th 273,
283.) “When an equal protection case does not involve a suspect classification such as
race and does not infringe on a fundamental right, the legislative classification will be
upheld whenever it has a rational relationship to a legitimate state interest.” (People v.
Parker (2006) 141 Cal.App.4th 1297, 1309.)
1. Former Prisoners and Former Probationers Convicted of Sections 311.2 and
311.11 are Similarly Situated for Purposes of Section 4852.01 and 1203.4
Defendant was convicted of felony distribution of obscene matter of a minor to a
minor (§ 311.2, subd. (d)) and misdemeanor possession of matter depicting a minor under
the age of 14 in sexual acts (§ 311.11, subd. (a)), and he was placed on probation. Since
he was convicted of these offenses, his accusatory pleading cannot be dismissed under
section 1203.4, as these offenses are specifically excluded from such relief. (§ 1203.4,
subd. (b).) Since defendant’s accusatory pleading cannot be dismissed, he cannot obtain
a certificate of rehabilitation and pardon under section 4852.01, subdivision (b).
Defendant contends he is similarly situated to former prisoners convicted of the same
offenses, who are eligible for relief under section 4852.01, subdivision (a). We agree that
former probationers and former prisoners convicted of the same offenses are similarly
situated for purposes of obtaining a certificate of rehabilitation and pardon. (See Foster,
supra, 7 Cal.5th at p. 1212 [“two classes that are different in some respects” must be
“sufficiently similar with respect to the laws in question”].)
6 Respondent claims that the two groups “are not similarly situated when it comes to
offenses involving child pornography.” Respondent asserts that computers or other
digital media devices are commonly used in these offenses, and “as a result of their
conditions of confinement, it can be more readily verified that prisoners did not possess
child pornography while incarcerated” since they do not typically have “access to
computers or other digital media devices.” Respondent asserts that the same cannot be
said of probationers, who continue to have access to computers and child pornography.
However, as defendant points out, an individual convicted of sex offenses may apply for
a certificate of rehabilitation and pardon only after demonstrating rehabilitation for a
period of five years after being released from custody. (§ 4852.03, subds. (a) & (b).)
Thus, at the time a former prisoner could apply for a certificate of rehabilitation and
pardon, he would not be subject to the “conditions of confinement” (i.e., no access to
computers) that respondent claims; rather, he would be in the same position as a former
probationer. The former prisoner would have been able to access child pornography with
the same ease as the probationer during this five-year waiting period.
2. There is No Rational Basis for the Unequal Treatment of
Former Probationers and Former Prisoners
“A classification in a statute is presumed rational until the challenger shows that
no rational basis for the unequal treatment is reasonably conceivable.” (Chatman, supra,
4 Cal.5th at p. 289.) Here, there is no rational basis for the unequal treatment of former
probationers and prisoners. The effect of the differential treatment is to allow former
prisoners, who presumably committed more serious crimes and were more culpable, to 7 obtain certificates of rehabilitation and pardon, while those less culpable who were
placed on probation are denied the same relief. For example, a person who possessed
50,000 images of child pornography and was sentenced to prison would be eligible for
relief, while a less culpable person who possessed 50 images and was placed on
probation would not be eligible for relief. Allowing a former prisoner to obtain a
certificate of rehabilitation and pardon, pursuant to sections 4852.01 and 1203.4, while
excluding a former probationer from obtaining such relief, is “devoid of any conceivable
degree of coherent justification.” (Chatman, at p. 291.)
Respondent maintains there is a rational basis for treating former prisoners and
probationers, as it relates to these crimes, unequally. Respondent again states that child
pornography crimes such as section 311.11 and 311.2 generally involve the use of
computers and other media devices that are not permitted in prison, but are available to
persons on probation. Respondent argues that is impossible to verify whether a
probationer has been rehabilitated, since he “could have easily continued to commit the
convicted offense while on probation, unlike a prisoner convicted of the same offense.”
However, as explained ante, an individual must demonstrate rehabilitation for five years
after being released from custody before applying for a certificate of rehabilitation and
pardon. (§ 4852.03, subds. (a) & (b).) Thus, respondent’s reasoning that former
prisoners were “offense-free” while in prison, while former probationers “could have”
continued to offend since they had access to computers, is not a valid distinction. It
therefore does not provide a rational basis for treating these two groups unequally with
respect to obtaining a certificate of rehabilitation and pardon. 8 Respondent further contends that it was rational for the Legislature to exclude
probationers from obtaining a certificate of rehabilitation and pardon based on the
significant costs associated with these petitions. Respondent relies upon Chatman in
support of this claim; however, Chatman is distinguishable. In that case, the California
Supreme Court addressed whether section 4852.01 violated the equal protection clause
because, while former probationers and former prisoners were both eligible for
certificates of rehabilitation, former probationers could not receive a certificate if they
were subsequently incarcerated, whereas former prisoners did not have such restriction.
The court assumed without deciding former prisoners and former probationers were
similarly situated and focused on “the more fundamental question of whether section
4852.01’s unequal treatment of the groups bears a rational relationship to a legitimate
state purpose.” (Chatman, supra, 4 Cal.5th at p. 290.) The court first noted the process
of seeking and obtaining a certificate of rehabilitation “involves the expenditure of
significant judicial and executive branch resources.” (Ibid.) It then found that
“[p]reserving the government’s financial integrity and resources is a legitimate state
interest.” (Ibid.) Thus, the question was “whether the classification at issue in this case,
which bars subsequently incarcerated former probationers from certificate of
rehabilitation relief, [was] a rational means of preserving government resources.” (Id. at
p. 291.)
The Supreme Court concluded that it was a rational means, stating “[t]he
Legislature has chosen to extend certificate of rehabilitation relief to only a subset of
former probationers based on rational distinctions between subsequently incarcerated 9 former probationers and other convicted felons.” (Chatman, supra, 4 Cal.5th at p. 291.)
Notably, our Supreme Court explained that former prisoners have a higher need for relief
than former probationers because former probationers “have a right to dismissal of their
conviction under section 1203.4,” which “provides at least some relief from the
consequences of conviction.” (Ibid.) It was significant to the court that former
probationers still had some access to relief. We note that here relief under 1203.4 is not
available to former probationers when they are convicted of sections 311.11 and 311.2,
even when they successfully complete probation and are not subsequently reincarcerated.
(§ 1203.4, subd. (b).) We find compelling this distinction between the situation we are
confronted with in this case and Chatman.
The Chatman court also noted certificates of rehabilitation were originally only
provided to former prisoners, but the Legislature later “extended access to certificates of
rehabilitation to former probationers, but only those who [were] not subsequently
incarcerated.” (Chatman, supra, 4 Cal.5th at p. 292.) The court explained that “[t]he
cost associated with the Legislature’s decision to extend the benefit of certificates of
rehabilitation to an entirely new group of convicted felons rationally could have driven a
decision limiting the expansion of the benefit to only a subset of former probationers—a
subset at least marginally more likely to achieve rehabilitation.” (Ibid.) Unlike in
Chatman, the statutory scheme at issue here does not make a distinction for those “more
likely to achieve rehabilitation” (i.e., those not subsequently incarcerated). Under section
1203.4, all probationers with section 311.11 or 311.2 convictions are excluded from
relief. (§ 1203.4, subd. (b).) We further note that defendant was “at least marginally 10 more likely to achieve rehabilitation” than a former prisoner, since he was presumably
less culpable, as a probationer, and he was not subsequently incarcerated.
Moreover, we observe that, in Chatman, the Supreme Court stated “[t]he unequal
treatment challenged in this case begins only if a felon reoffends after completing his or
her probation,” and “[a]t that point, the Legislature has a rational basis” to treat
probationers differently than former prisoners. (Chatman, supra, 4 Cal.5th at p. 297.)
The court emphasized that Chatman “had the very same eligibility as other felons” up
until he was reincarcerated. (Id. at p. 296.)
In contrast, the unequal treatment challenged in the instant case began when
defendant received probation, rather than prison time. In other words, under the statutory
scheme at issue, defendant would have been eligible for a certificate of rehabilitation and
pardon if he had simply received a prison sentence, rather than probation. This irrational
distinction cannot be constitutionally justified. The exclusion of individuals from
eligibility for a certificate of rehabilitation and pardon simply because they serve
probation rather than a prison term is devoid of any coherent justification; further, it does
not pass rational basis review merely because it preserves government costs and
resources. (Chatman, supra, 4 Cal.5th at p. at p. 291 [a decision “to withhold a benefit
from one subset of people, devoid of any conceivable degree of coherent justification,
might not pass rational basis review merely because it decreases the expenditure of
resources”].)
We conclude the unequal treatment of former prisoners and former probationers
convicted of the specified child pornography offenses does not withstand rational basis 11 scrutiny. Defendant cannot be rationally excluded from eligibility for a certificate of
rehabilitation and pardon for the sole reason that he was less culpable and granted
probation rather more culpable and sentenced to prison. Accordingly, we hold the court’s
denial of his petition violated equal protection.
DISPOSITION
The order denying defendant’s petition for a certificate of rehabilitation and
pardon is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
CODRINGTON Acting P. J.
RAPHAEL J.
12 [People v. Garrett, E077770]
RAPHAEL, J., Concurring.
I join the opinion in full. Defendant-Appellant Paul Garrett would be eligible to
seek a certificate of rehabilitation and pardon under Penal Code section 4852.01 had he
received a prison sentence for his offense. But solely because he received a sentence of
probation, he is forever ineligible. This distinction—the result of the operation of a
combination of statutes that our Legislature may never have contemplated —lacks a
rational basis. There is no reasonable justification for denying Garrett eligibility for a
certificate solely because his sentence was too light.
I write to suggest that our Supreme Court’s opinion in Newland v. Board of
Governors (1977) 19 Cal.3d 705 (Newland) provides the most direct support for our
conclusion. In that case, William Newland was denied a community college teaching
credential for the sole reason that he was subject to a statutory bar for having sustained a
misdemeanor conviction for soliciting sex. He would have been eligible for the
credential if he obtained a certificate of rehabilitation under section 4852.01. But such
certificates are available only to felons, not to misdemeanants.
Our Supreme Court described it as a “Kafka-like perverse effect” that a person
convicted of a felony sex crime could potentially obtain a certificate of rehabilitation and
teach at a community college, yet a person convicted of a misdemeanor sex crime was
“forever barred.” (Newland, supra, 19 Cal.3d at p. 712.) That classification had “no
rational relationship” to any policy because the Legislature “could not possibly or
sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation.” (Ibid.)
Garrett is subject to a similar effect as in Newland, where the Attorney General did not
even attempt to defend the statutory classification. (Id. at p. 713.)
Our Supreme Court’s discussion of Newland in People v. Chatman (2018) 4
Cal.5th 277, 295 (Chatman) only underscores that the simple logic of Newland continues
to be good law, and that it applies here. Chatman involved not the class of probationers,
but the class of probationers who had reoffended. Thus, Chatman explained it differed
from Newland for that reason: “[w]hereas Newland could have obtained a teaching
credential if he had simply been convicted of a felony, not a misdemeanor—in other
words, if he had been convicted of a more serious offense—Chatman’s ineligibility
reflects his own response to the unique opportunities he received after he was sentenced
to probation.” (Chatman, supra, 19 Cal.3d at p. 296.)
Accordingly, Chatman reaffirmed Newland by reasoning that “[t]he unequal
treatment challenged in this case begins only if a felon reoffends after completing his or
her probation. At that point, the Legislature has a rational basis to conclude that
resources are better allocated to former prisoners than former probationers.” (Chatman,
supra, 19 Cal.3d at p. 297 [emphasis added].) Here, as in Newland, the unequal
treatment begins immediately when a defendant is sentenced to probation, rather than
prison, and continues even without any subsequent events of the sort Chatman says can
provide a rational basis to treat probationers more harshly than prisoners.