Filed 5/2/22 P. v. Hilliard CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E077295
v. (Super.Ct.No. FELVS1900014)
JAMES PATRICK HILLIARD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lisa M. Rogan,
Judge. Reversed and remanded with directions.
Sylvia W. Beckham, 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, Eric A. Swenson and Felicity
Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
1 James Patrick Hilliard appeals from an order denying his petition for a certificate
of rehabilitation under Penal Code sections 4852.01 and 4852.06. (Undesignated
statutory references are to this code.) We reverse and remand for further proceedings.
BACKGROUND
In March 2021, Hilliard filed a petition for a certificate of rehabilitation from a
2006 misdemeanor conviction of possessing child pornography under section 311.11.1
Hilliard attached to the petition a college transcript and numerous letters of character
reference.
In 2006, Hilliard was sentenced to 10 days in jail and 36 months of probation for
violating section 311.11. Two other charges against him were dismissed, namely, one
count of engaging in lewd and lascivious conduct with a child under 14 years old in
violation of section 288, subdivision (a), and one count of sending harmful matter via
email to a minor with the intent to seduce the minor in violation of former section 288.2,
subdivision (b).
In his petition for a certificate of rehabilitation, Hilliard alleged that he completed
probation in August 2009. In April 2019, the conviction was set aside and dismissed
pursuant to section 1203.4.
In response to Hilliard’s petition, the trial court ordered the district attorney’s
office to investigate as set forth in section 4852.12. The investigator discovered that
Hilliard had suffered other misdemeanor convictions. In 2015, Hilliard was convicted of
1 Hilliard filed a similar petition in December 2019. The parties mutually agreed to have the matter taken off calendar, and the trial court took no action on the petition.
2 one misdemeanor count of reckless driving under Vehicle Code section 23103,
subdivision (a), for which he was sentenced to 20 days in jail and 36 months of probation.
In 2017, that conviction was dismissed and set aside under section 1203.4. In 2015,
Hilliard was convicted of one misdemeanor count of disturbing the peace under section
415, subdivision (2), for which he was sentenced to three days in jail and 24 months of
probation. In 2016, that conviction was dismissed and set aside under section 1203.4.
The report does not contain any information regarding the crimes’ underlying conduct.
The investigator concluded that Hilliard was not eligible for a certificate of
rehabilitation until after July 29, 2022. The investigator did not explain how that date
was calculated.
In June 2021, the trial court held a hearing on Hilliard’s petition. Defense counsel
represented that in 2006 Hilliard pled guilty to the misdemeanor child pornography
possession offense. (The record on appeal does not indicate that Hilliard’s conviction
was by plea and does not contain the plea agreement or a transcript from the hearing in
which Hilliard pled guilty.) Defense counsel argued that Hilliard became eligible for a
certificate of rehabilitation in September 2013, 10 years after he was released from
custody for the 2006 conviction. (Apparently Hilliard was charged, briefly incarcerated,
and released in 2003 but was not convicted until 2006.) Defense counsel also argued that
the trial court should grant the petition because the good Hilliard had done since being
convicted outweighed the bad. In particular, defense counsel claimed that Hilliard has
obtained a master’s degree, financially assists and takes care of his mother, volunteers to
3 feed the homeless, and attends church. Counsel found it noteworthy that all of Hilliard’s
subsequent convictions were misdemeanors that were later set aside and dismissed and
that Hilliard “never picked up any other [section] 290-related charges.” Counsel
represented that in a 2003 section 288.1 report, the reporting doctor opined that Hilliard
did not meet any of the criteria of a child molester or a pedophile and that rehabilitation
was feasible. The report was submitted to the court, but it is not included in the record on
appeal. Counsel argued that the doctor’s opinions remain true.
The People countered that Hilliard was not eligible for a certificate of
rehabilitation because of his subsequent misdemeanor convictions. The People also
argued, “I’m not sure how he got a [section] 1203.4 on this case because he wouldn’t be
eligible.”
After considering all of the documentary evidence and argument by counsel, the
trial court denied the petition. The court explained: “The first hurdle the Court has a
problem with is the initial [section] 1203.4 dismissal by law. This case and the charge of
[section] 311.11 does not qualify for such a dismissal. Moreover, the requirements for
rehabilitation and pardon require me to consider the 1203.4 section. In considering that
section, finding that this case—that the [section] 311.11 specifically listed in [section]
1203.4 is not eligible, the Court cannot then usurp a legal boundary that I’m required to
abide by. [¶] I do applaud the defendant for all of his efforts and the progress he has
made. But given the subsequent conviction, and most certainly the legal bounds that I’m
4 constrained by, the Court is not going to grant the motion, finding the defendant
ineligible for the relief requested.”
DISCUSSION
Hilliard argues that the trial court erred by concluding that he was ineligible for a
certificate of rehabilitation, because that conclusion was based on the court’s incorrect
determination that Hilliard had erroneously been granted relief under section 1203.4. We
agree.
A person convicted of specified misdemeanor sex offenses, including a violation
of section 311.11 (§ 290, subd. (c)(1)), may qualify for a certificate of rehabilitation if
certain criteria are satisfied. (§ 4852.01, subd. (b).) The trial court holds a hearing and
considers documentary evidence bearing on the petition and “may require testimony as it
deems necessary.” (§ 4852.1; People v. Ansell (2001) 25 Cal.4th 868, 875 (Ansell).) “To
this end, the court may compel the production of judicial, correctional, and law
enforcement records concerning the crimes of which petitioner was convicted, his
performance in custody and on supervised release, and his conduct during the period of
rehabilitation, including all violations of the law known to any peace officer.” (Ansell,
supra, at p. 875.)
For the petitioner to qualify for a certificate of rehabilitation, the conviction must
have been expunged under section 1203.4, and the petitioner must demonstrate that he or
she “has not been incarcerated in a prison, jail, detention facility, or other penal
institution or agency since the dismissal of the accusatory pleading, is not on probation
5 for the commission of any other felony, and the petitioner presents satisfactory evidence
of five years’ residence in this state prior to the filing of the petition.” (§ 4852.01,
subd. (b).) The minimum period of rehabilitation also must have expired. (§ 4852.06.)
“The period of rehabilitation commences 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, postrelease community supervision, mandatory
supervision, or probation, whichever is sooner.” (§ 4852.03, subd. (a).) For every
petitioner, the period of rehabilitation is five years’ residence in California. (Ibid.) An
additional five years is added for those convicted of a sex offense requiring sex offender
registration under section 290 (§ 4852.03, subd. (a)(2)(A)), including a conviction under
section 311.11 (§ 290, subd. (c)(1)).
During the period of rehabilitation, the petitioner “shall live an honest and upright
life, shall conduct himself or herself with sobriety and industry, shall exhibit a good
moral character, and shall conform to and obey the laws of the land.” (§ 4852.05.)
Analyzing the phrase “‘an honest and upright life’” in a different but related statute,
subdivision (a) of section 1203.4a, our Supreme Court recently held that “a person may
live such a life even if that person has been in custody since completing the sentence
imposed for the misdemeanor.” (People v. Maya (2020) 9 Cal.5th 239, 240.) Upon
receipt of “satisfactory proof” of any violations of the law by the petitioner, “the court
may deny the petition and determine a new period of rehabilitation not to exceed the
original period of rehabilitation for the same crime.” (§ 4852.11.) In considering a
6 petitioner’s violations of the law, the court may consider evidence concerning the
underlying conduct that led to convictions that were later expunged. (People v. Zeigler
(2012) 211 Cal.App.4th 638, 664-666 (Zeigler).) In addition, if the petitioner was
convicted of any offense subject to sex offender registration under section 290, the court
shall not grant a certificate of rehabilitation “if the court determines that the petitioner
presents a continuing threat to minors of committing any of the offenses specified in
[s]ection 290.” (§ 4852.13, subd. (b).)
“To enter an order known as a certificate of rehabilitation, the superior court must
find that the petitioner is both rehabilitated and fit to exercise the rights and privileges
lost by reason of his conviction. (§ 4852.13, subd. (a).)” (Ansell, supra, 25 Cal.4th at
pp. 875-876.) A certificate of rehabilitation is not “necessarily available to any convicted
felon [or misdemeanant] who claims to meet the minimum statutory requirements and is
otherwise eligible to apply.” (Id. at p. 887.) The trial court exercises its discretion after
conducting a thorough inquiry into the petitioner’s “conduct and character from the time
of the underlying crimes through the time of the certificate of rehabilitation proceeding.
(§§ 4852.1–4852.12.)” (Zeigler, supra, 211 Cal.App.4th at p. 653.) “The standards for
determining whether rehabilitation has occurred are high.” (Ansell, at p. 887; People v.
Failla (2006) 140 Cal.App.4th 1514, 1519 (Failla).)
We review for abuse of discretion an order denying a certificate of rehabilitation.
(People v. Faranso (2015) 240 Cal.App.4th 456, 461 (Faranso); Failla, supra, 140
Cal.App.4th at p. 1519.) We will not disturb the trial court’s ruling on appeal unless the
7 abuse of discretion was manifest and resulted in a miscarriage of justice. (People v.
Lockwood (1998) 66 Cal.App.4th 222, 227.) “‘A trial court abuses its discretion when it
applies the wrong legal standards applicable to the issue at hand.’” (Doe 2 v. Superior
Court (2005) 132 Cal.App.4th 1504, 1517 (Doe 2); Fox Factory, Inc. v. Superior Court
(2017) 11 Cal.App.5th 197, 207.)
The People do not deny that Hilliard met the requirement that he obtain
expungement of his section 311.11 conviction under section 1203.4. (§ 4852.01,
subd. (b).) The trial court likewise agreed that Hilliard satisfied that requirement; the
conviction had been expunged. The court nevertheless believed that the expungement
was erroneous because Hilliard’s conviction did not qualify. As a result, the court treated
the expungement as if it did not exist for purposes of Hilliard’s petition for a certificate of
rehabilitation.
Section 1203.4 provides that a defendant meeting certain criteria may seek
expungement of a conviction for “any case in which [the] defendant has fulfilled the
conditions of probation for the entire period of probation.” (§ 1203.4, subd. (a)(1).) The
current version of section 1203.4 excludes persons convicted of certain misdemeanor sex
offenses, including violations of section 311.11. (§ 1203.4, subd. (b).) But in 2006,
when Hilliard pled guilty to a misdemeanor violation of section 311.11, section 1203.4
did not include such a limitation. (Former § 1203.4, subd. (b), eff. Oct. 7, 2005.)
The Court of Appeal has held that if a defendant was convicted by plea of an
offense that was eligible for expungement when the plea was taken, then the defendant
8 may later seek expungement even if a subsequent statutory amendment has made the
offense ineligible. In People v. Arata (2007) 151 Cal.App.4th 778 (Arata), the defendant
pled guilty to one count of lewd or lascivious conduct upon a child (§ 288, subd. (a))
based on the understanding that he would not be sentenced to prison and could later seek
expungement of the conviction. (Arata, supra, at pp. 781-782.) After the defendant
completed probation, he moved to withdraw his guilty plea and to dismiss his conviction
under section 1203.4. (Arata, at p. 781.) The trial court denied the motion on the basis
of an amendment to section 1203.4 that took effect after the defendant’s guilty plea and
precluded relief for a section 288 conviction. (Arata, at p. 782.)
The Court of Appeal reversed. (Arata, supra, 151 Cal.App.4th at p. 781.) The
court reasoned that the availability of section 1203.4 relief was an implied term of the
defendant’s plea bargain and was significant when considered in the context of the
agreement as a whole. (Arata, at pp. 787-788.) The court concluded that because the
defendant’s “plea rested in a significant degree on the promise of eventual section 1203.4
relief, such promise must be fulfilled.” (Id. at p. 788.)
Hilliard argues that under Arata, supra, 151 Cal.App.4th 778, his 2006 conviction
under section 311.11 was properly expunged, and the trial court erred by concluding
otherwise and denying his certificate of rehabilitation on that basis. The People concede
that under Arata the expungement of Hilliard’s 2006 conviction was proper even though
section 311.11 convictions were statutorily ineligible for such relief when the
9 expungement occurred. We agree with the parties. Under Arata, Hilliard’s 2006
misdemeanor conviction for violating section 311.11 was not ineligible for expungement.
Consequently, the trial court’s ruling that Hilliard was not eligible for a certificate
of rehabilitation because his conviction should not have been expunged was error. The
trial court applied the wrong legal standard by concluding that Hilliard did not qualify for
a certificate of rehabilitation because it mistakenly concluded that Hilliard’s conviction
had erroneously been expunged. The court therefore abused its discretion by denying
Hilliard’s petition on that basis. (See Doe 2, supra, 132 Cal.App.4th at p. 1517.)
The People argue that we should affirm despite the trial court’s error because
“[t]he central issue before this court is whether appellant was entitled to a certificate of
rehabilitation,” and “[h]e was not for two reasons.” In particular, the People argue that
(1) certain convictions Hilliard suffered during the period of rehabilitation “were a basis
to deny the certificate,” and (2) “the trial court could have reasonably concluded . . . that
[Hilliard] posed a continuing threat to minors.” Although the nature of the People’s
arguments is less than clear, we interpret them as aiming to show that the trial court’s
error was harmless. We disagree.
No party identifies the standard for prejudice that we should apply. In the absence
of any argument for a higher standard, we apply People v. Watson (1956) 46 Cal.2d 818,
which is the generally applicable standard of prejudice for state law error.2 We therefore
2 Hilliard appears to argue that the trial court’s error is reversible per se. We are not persuaded. For example, if the record demonstrated that, on some independent ground, Hilliard is categorically ineligible for a certificate of rehabilitation even though the 2006
10 must reverse if it is reasonably probable that Hilliard would have obtained a more
favorable result but for the trial court’s error. (Id. at p. 836.)
On this record, it is reasonably probable that Hilliard would have obtained a more
favorable result if the trial court had not erred by concluding that the 2006 conviction was
erroneously expunged. Hilliard appears to meet the requirements for a certificate of
rehabilitation, and the trial court commended him on his rehabilitative efforts and the
progress he has made, both of which appear to have been considerable.
The People’s two arguments to the contrary lack merit. First, insofar as the People
argue that the trial court denied Hilliard’s petition both because the 2006 conviction was
erroneously expunged and, alternatively, because of the convictions Hilliard suffered
during the rehabilitation period, the argument is not supported by the record. Although
the trial court mentioned the subsequent convictions when it denied the petition, the
court’s oral statement of its ruling made clear that the court was not denying the petition
on the basis of those convictions. The court explained that in light of “the legal bounds
that [the court was] constrained by,” the court was denying the petition because Hilliard
was “ineligible for the relief requested.” Subsequent convictions do not render a
petitioner ineligible. Rather, the court is allowed but not required to deny relief on the
basis of subsequent convictions. (§ 4852.11.) Moreover, if the court does deny the
petition on the basis of subsequent convictions, the court must set “a new period of
rehabilitation” (ibid.), which the court did not do. We therefore conclude that the trial
conviction was correctly expunged, then the trial court’s error would be harmless and reversal and remand for further proceedings would be futile.
11 court did not rely on Hilliard’s subsequent convictions as an alternative basis for denying
the petition.
In addition, Hilliard argues that it would have been improper for the court to rely
on his subsequent convictions, because all of them have been expunged. The People
concede that the court cannot rely on the expunged convictions themselves, but the
People contend that the court is permitted to rely on the conduct underlying those
convictions. But as Hilliard points out in his reply brief, the record contains no
information about that conduct—the record reflects only the convictions. For all of these
reasons, we conclude that Hilliard’s subsequent (expunged) convictions do not show it is
not reasonably probable that he would have obtained a more favorable result but for the
court’s error concerning the expungement of his 2006 conviction.
Finally, the People’s argument that the trial court could have found that Hilliard is
a continuing threat to minors is similarly unavailing. The People made no such argument
in the trial court, and the court made no such finding, having denied the petition on an
independent ground. Under these circumstances, the doctrine of implied findings does
not apply. (See Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148-1149.) At most,
the People’s argument shows that if the court were to make such a finding, it might be
supported by substantial evidence. But it does not follow that it is not reasonably
probable that Hilliard would have obtained a more favorable result but for the court’s
error about the expungement of the 2006 conviction. Had the trial court avoided that
12 error and reached the issue of whether Hilliard poses a continuing threat to minors, it is at
least reasonably probable that the court would have found in Hilliard’s favor.
Because the trial court mistakenly believed that Hilliard was ineligible for a
certificate of rehabilitation, the court did not exercise its discretion concerning any of the
factors that are relevant to ruling on a petition filed by an eligible defendant.
Determining whether Hilliard should be granted a certificate of rehabilitation if he
satisfied all of the statutory prerequisites is a decision to be made in the first instance by
the trial court in the sound exercise of its discretion. (See People v. Robarge (1953) 41
Cal.2d 628, 633-634 [remanding to trial court to exercise its discretion in deciding the
merits of the defendant’s motion for new trial, where the trial court had applied wrong
legal standard in denying the motion]; People v. Deloza (1998) 18 Cal.4th 585, 600
[remand for the trial court to exercise its discretion at resentencing where “the trial court
misunderstood the scope of its discretion to impose concurrent sentences for defendant’s
current convictions, and erroneously believed consecutive sentences were mandatory”];
see also Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007)
152 Cal.App.4th 720, 768 [“If the record clearly shows that the court failed to exercise its
discretion, as here, we can neither defer to an exercise of discretion that never occurred
nor substitute our discretion for that of the trial court”].)
13 In sum, we conclude that the trial court prejudicially abused its discretion by
applying the wrong legal standard in determining Hilliard’s eligibility for relief. We
accordingly reverse and remand for further proceedings.3
DISPOSITION
The order is reversed and the matter is remanded for further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS MENETREZ J.
We concur:
McKINSTER Acting P. J. RAPHAEL J.
3 Hilliard argues that the district attorney’s investigator erroneously calculated Hilliard’s eligibility date and that the trial court did not resolve the issue. Because the court decided Hilliard’s petition on the merits, it appears that the court implicitly rejected the investigator’s conclusion that the petition was premature. In any event, we need not resolve the issue because we are remanding for further proceedings. The trial court may resolve the issue in the first instance, if it is raised again.