Opinion
B329096
03-05-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT BLACK, JR., Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from postjudgment orders of the Superior Court of Los Angeles County, No. A333479 William C. Ryan, Judge. Dismissed in part and affirmed in part.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SEGAL, ACTING P. J.
Robert Black, Jr. appeals from an order denying his motion for a "certificate of rehabilitation" from the sex offender registration requirement under Penal Code sections 290 and 4852.01. We appointed counsel to represent Black in this appeal. Black's appointed counsel reviewed the record and did not identify any arguable issues. Nor, after reviewing the record independently, have we. Therefore, we affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 1978 Black pleaded guilty to one count of rape (former § 261.2) where the People alleged the victim "resisted but her resistance was overcome by force and violence." The trial court found Black was a mentally disordered sex offender and committed him to the State Department of Health, Patton State Hospital. Black appears to have been subsequently sentenced to prison because, according to him, he was released from prison in 2003.
Approximately three years later, in 2006, Black was arrested, and in 2007 a jury convicted him of first degree burglary (§ 459). He admitted he had two prior serious or violent felony convictions, within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12); two prior serious felony convictions, within the meaning of section 667, subdivision (a)(1); and served three prior separate prison terms, within the meaning of section 667.5, subdivision (b). The trial court sentenced Black to prison for a term of 38 years to life. He appealed, and this court affirmed. (People v. Black (Aug. 27, 2008, B197340) [nonpub. opn.].) Black is currently incarcerated.
In May 2021 Black wrote to the Los Angeles County District Attorney to request consideration for resentencing. In June 2022 the district attorney informed Black that his request would not be considered because Black was currently under 50 years of age, was sentenced to less than 20 years in prison, had not served 10 years in custody, was convicted of a serious or violent felony, had a super-strike conviction, was required to register as a sex offender, and was not 14 or 15 years old at the time of the offense.
Presumably in response to the district attorney's letter that Black would not be considered for resentencing because he was required to register as a sex offender, on November 14, 2022 Black filed a document titled, "Notice of Motion for Certificate of Rehabilitation from Sec. 290 Registration Under Assembly Bill 1618, for Being Denied the Future Benefit of Penal Code Sec. 1172.1," which the superior court deemed a petition for writ of habeas corpus. Citing a statute governing certificates of rehabilitation, specifically section 4852.03, Black sought relief from having to register as a sex offender. However, we will explain, section 4852.03, subdivision (a)(2)(B), states that a certificate of rehabilitation does not relieve a defendant of the obligation to register as a sex offender unless the defendant obtains relief under section 290.5, which governs petitions for termination from the sex offender registry. Black also argued his 2007 burglary conviction was not "a crime of violence." Black alleged the district attorney's criteria for assessing whom to recommend for resentencing violated section 1172.1 because, unlike the district attorney's criteria, section 1172.1 does not list any "disqualif[ying]" factors, such as whether the defendant had to register as a sex offender or whether the current conviction involved a violent crime. Black also claimed several of the reasons the district attorney gave for declining to consider him for resentencing were erroneous, such as that Black was 74 years old and had been incarcerated for 16 years.
On January 11, 2023 the superior court denied Black's petition. Regarding section 1172.1, the court ruled the statute did not authorize Black to initiate recall of his sentence. The court also ruled Black failed to state a basis for relief from the sex offender registration requirement under section 290, including by failing to identify "which convictions required him to register in the first place." The court did not refer to section 4852.01 in its order. Black timely filed a notice of appeal.
On the same day Black filed his notice of appeal, he refiled in the superior court an identical motion for a certificate of rehabilitation. The court again deemed the motion a habeas petition and denied it.
After reviewing the record, Black's appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 stating he could not identify any arguable issues. Counsel also sent Black a copy of the brief and transcripts of the record on appeal and advised Black that he could submit a supplemental brief identifying contentions he wanted this court to consider. On November 27, 2023 Black filed a timely supplemental brief.
DISCUSSION
A. Appealability
The portion of the superior court's order denying Black's petition to recall his sentence and have the court resentence him under section 1172.1 is not appealable. Because Black "'is not empowered to make a motion to recall'" under section 1172.1, the court's denial of Black's request does not affect his "substantial rights." (People v. Magana (2021) 63 Cal.App.5th 1120, 1126 [decided under former § 1170, subd. (d)(1)]; see §§ 1237, subd. (b), 1172.1, subd. (c).) Notwithstanding the superior court's classification of Black's motion as a habeas petition, the portion of the court's order denying relief from sex offender registration is appealable. (See § 1237, subd. (b) [defendant may appeal from "any order made after judgment, affecting the substantial rights of the party"]; People v. Franco (2024) 99 Cal.App.5th 184, 192 [order denying a petition for removal from the sex offender registry under § 290.5 is appealable]; People v. Miller (2018) 23 Cal.App.5th 973, 977 [order denying a petition for a certificate of rehabilitation under § 4852.01 is appealable].)
B. The Superior Court Did Not Err in Denying Black's Request for a Certificate of Rehabilitation To Relieve Him from the Sex Offender Registration Requirement
Section 4852.01 et seq. states the requirements for a person convicted of a felony or misdemeanor to petition for a certificate of rehabilitation and pardon. (See People v. Chatman (2018) 4 Cal.5th 277, 285.) Those requirements include completing a period of rehabilitation of at least five years' residence in California, plus additional time of between two and five years depending on the nature of the conviction. (§ 4852.03, subd. (a).) Once the period of rehabilitation has expired, a person who has, among other things, lived a law abiding life, may file a petition for a certificate of rehabilitation. (§§ 4852.05, 4852.06.) Of particular significance for this appeal, a certificate of rehabilitation does not relieve a defendant from his or her obligation to register as a sex offender unless that person obtains relief under section 290.5. (§ 4852.03, subd. (a)(2)(B).)
Section 290.5 governs petitions for termination from the sex offender registry for tier one and tier two offenders "following the expiration of the person's mandated minimum registration period." (§ 290.5, subd. (a)(1).) Tier three offenders, who are subject to lifetime registration, cannot petition for relief under section 290.5, except in limited circumstances not applicable here. (See §§ 290.5, subds. (a)(1) &(b)(3), 290, subd. (d)(3).) A defendant convicted of rape that was "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another" is a tier three offender. (§ 290, subd. (d)(3)(K).) Section 290.5, subd. (a)(2), sets forth the procedural requirements for a petition for termination from the sex offender registry, including service "on the registering law enforcement agency and the district attorney in the county where the petition is filed ...."
In his supplemental brief, Black frames his issue as whether a "'certificate of rehabilitation' from sec. 290 registration should have been issued by the lower court." Black also contends the superior court's treatment of his filing as a habeas petition resulted in a miscarriage of justice.
Black's motion, however, suffered from a fundamental error: The relief he sought-relief from having to register as a sex offender-is not authorized under section 4852.01 et seq. Section 4852.03, subdivision (a)(2)(B), states, "A certificate of rehabilitation issued on or after July 1, 2021, does not relieve a person of the obligation to register as a sex offender unless the person obtains relief granted under Section 290.5." Although Black referred to section 4852.03 in his motion, and continues to refer to it on appeal, he repeatedly describes the relief he seeks as relief "from sec. 290 registration." Such relief may be available under section 290.5, but Black did not seek relief under that statute.
Construing his petition as one seeking relief from the sex offender registration requirement under section 290.5 for his 1978 rape conviction, rather than a certificate of rehabilitation under section 4852.01 for his 1989 burglary, is supported by Black's statement in his supplemental brief that "case number A333479 [his 1978 conviction]. . . provided facts appellant sought 'motion' for a 'certificate of rehabilitation' from sec. 290 registration."
Although because the People alleged the victim "resisted but her resistance was overcome by force and violence," Black's 1978 rape conviction may require lifetime sex offender registration, which would mean he may be ineligible for relief from registration under section 290.5.
Even if we construed Black's filing as a petition for a certificate of rehabilitation unrelated to relief from sex offender registration, the superior court's failure to rule on the petition pursuant to section 4852.01 was harmless. According to Black, he was convicted in 1989 for burglary and released from prison in 2003. Black states that after his release he participated in various rehabilitative efforts. However, he was convicted of burglary again in 2007 and remains incarcerated. Although his reincarceration does not necessarily preclude him from attempting to secure a certificate of rehabilitation for a completed sentence from a past conviction, Black failed to establish a prima facie case for relief. The minimum period of rehabilitation, which begins once the petitioner is discharged from custody, is five years' residence in California, plus two to five additional years depending on the type of conviction. (§ 4852.03, subd. (a).) As Black concedes, within seven years of his release from prison in 2003, he was convicted of burglary, which is "satisfactory proof of [a] violation" of law to deny the petition. (§ 4852.11; see People v. Chatman, supra, 4 Cal.5th at p. 285 ["During the period of rehabilitation, the petitioner must '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.'"]; id. at p. 286 ["[i]f the petitioner violates the law during the period of rehabilitation, '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'"]; see also § 4852.05.)
Black argues the superior court should have granted his motion for a certificate of rehabilitation based on a three-year rehabilitation period. The cases Black cites, however, were decided in the 1970's, and the statute currently requires a minimum rehabilitation period of five years.
And finally, any error by the superior court in misdesignating Black's filing, which combined issues properly raised in a habeas petition and in a statutory motion, is harmless because the superior court addressed the crux of the relief sought in Black's filing. As have we. (See Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Neither Black nor his appellate counsel has raised any cognizable legal issues. We have independently reviewed the record and are satisfied there are no arguable issues. (See People v. Delgadillo, supra, 14 Cal.5th 216, 231-232; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The appeal from the order denying Black's petition under section 1172.1 is dismissed. The order denying Black's petition for a certificate of rehabilitation for relief from sex offender registration requirement under section 290 is affirmed.
We concur: FEUER, J. MARTINEZ, J.