Opinion
A147894
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN HAROLD JACOBS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 15SF001452)
Defendant John Harold Jacobs appeals from a February 18, 2016, order denying his petition for a certificate of rehabilitation and pardon (hereinafter "certificate of rehabilitation") (Pen. Code, § 4852.01 et seq.) relative to a 1993 felony conviction for violating section 288, subdivision (a), committing a lewd and lascivious act on a child under the age of 14. The trial court denied the petition on the ground defendant was statutorily ineligible to request a certificate of rehabilitation. On appeal defendant challenges the court's ruling on the ground that he is denied equal protection of the law because other purportedly similarly situated sex offenders are eligible to request certificates of rehabilitation. We see no merit to defendant's equal protection argument, and accordingly, we affirm.
All further unspecified statutory references are to the Penal Code. "Although there are various statutory references to a 'certificate of rehabilitation and pardon' ([§]§ 4852.01, subds. (a), (b), (c), 4852.21, subds. (a), (b)), the more commonly used term is 'certificate of rehabilitation' (§ 4852.13, subd. (a) [the court order granting a petition 'shall be known as a certificate of rehabilitation']; see also §§ 4852.03, subds. (a)(4), (b), 4852.06, 4582.13, subds. (b), (c), 4852.14, 4852.16, 4852.17). . . . If granted, the petition is deemed an application for a pardon and forwarded to the Governor (§ 4852.16) with the court's 'recommend[ation] that the Governor grant a full pardon to the petitioner' (§ 4852.13, subd. (a)). In accordance with the judicial preference for the more precise term [citations], the object of [defendant's] petition will be called a certificate of rehabilitation." (People v. Blocker (2010) 190 Cal.App.4th 438, 440-441, fn. 2.)
FACTUAL AND PROCEDURAL BACKGROUND
On August 3, 1993, in the County of Sacramento, defendant pleaded no contest to the felony offense of lewd and lascivious conduct on a child under the age of 14, in violation of section 288, subdivision (a). He was sentenced to six years in state prison, with a credit of 337 days for time spent in custody. He was released on parole, "suffered one 'return-to-custody' parole violation," and was finally discharged from parole on August 8, 1996.
This conviction also requires defendant to register for life as a sex offender in California. (§ 290, subd. (c).)
On December 4, 2015, 53-year-old defendant filed a petition for a certificate of rehabilitation in San Mateo County Superior Court, seeking relief relative to the 1993 felony conviction, and arguing he was not statutorily precluded from seeking such relief. The San Mateo County District Attorney filed a response, arguing that defendant is statutorily ineligible to apply for the certificate of rehabilitation, and, therefore, the court should deny the request without consideration of the merits. Following a hearing on February 18, 2016, the trial court agreed with the District Attorney, and denied defendant's request on the ground he was statutorily ineligible to apply for a certification of rehabilitation. Defendant's timely appeal ensued.
DISCUSSION
Generally, "the certificate of rehabilitation procedure is available to convicted felons who have successfully completed their sentences, and who have undergone an additional and sustained 'period or rehabilitation' in California. (§ 4852.03, subd. (a); . . . see §§ 4852.01, subds. (a)-(c), 4852.06.)" (People v. Ansell (2001) 25 Cal.4th 868, 875.) However, section 4852.01, subdivision (c), provides: "This chapter does not apply to persons . . . convicted of a violation of . . . section 288. . . ." On appeal defendant concedes he is statutorily excluded from seeking a certificate of rehabilitation. He asserts, however, that the statutory prohibition violates his constitutional equal protection rights because the statutory scheme permits persons who have committed forcible sexual acts on children under the age of 14 to request a certificate of rehabilitation, while denying that relief to persons, such as defendant, who have committed nonforcible sexual acts on children under the age of 14. As we now discuss, we see no merit to defendant's argument.
"The concept of equal protection recognizes that persons who are similarly situated with respect to the law's legitimate purposes must be treated equally. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177, 57 P.3d 654.) Accordingly, " ' "[t]he 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." ' (Ibid.) 'This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." ' (Ibid.)" (People v. Brown (2012) 54 Cal.4th 314, 328.) Additionally, "[w]here, as here, a disputed statutory disparity implicates no suspect class or fundamental right, 'equal protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." ' [Citation.] 'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in " 'rational speculation' " as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record." ' [Citation.] To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citation.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' [Citation.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881; see People v. Romo (1975) 14 Cal.3d 189, 196 [constitutional guaranty of equal protection "does not . . . require absolute equality"].)
Defendant argues that, as a section 288, subdivision (a), offender, he is similarly situated to persons convicted of section 286, subdivision (d)(2), and 288a, subdivision (d)(2), who are permitted to request certificates of rehabilitation. We disagree. As noted by the Attorney General, the statutes in question distinguish between persons who commit the offense alone (§ 288) and persons who commit the offense "while voluntarily acting in concert with another person" (§§ 286, subd. (d)(2); 288a, subd. (d)(2)). Thus, on their face, the latter statutes concerning sex offenses committed against a child by more than one person (§ § 286, subd. (d)(2), 288a, subd. (d)(2)) are distinguishable from section 288, which punishes a person who commits an act alone. Additionally, as noted by the Attorney General, all section 288 offenders, who commit a lewd and lascivious act on a child under the age of 14, by force or not, are treated in the same manner under section 4852.01, namely, such persons are precluded from requesting a certificate of rehabilitation. (§ 4852.01, subd. (c).)
Section 288, subdivision (a), provides, in pertinent part: ". . .[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." Section 286, subdivision (d)(2), provides: "Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is under 14 years of age, when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years." Section 288a, subdivision (d)(2), provides: "Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is under 14 years of age, when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years."
More significantly, even assuming defendant is similarly situated to persons who commit violations of section 286, subdivision (d)(2), and section 288a, subdivision (d)(2), his equal protection argument fails. "Nothing compels the state 'to choose between attacking every aspect of a problem or not attacking the problem at all.' [Citation.] Far from having to 'solve all related ills at once' [citation], the Legislature has 'broad discretion' to proceed in an incremental and uneven manner without necessarily engaging in arbitrary and unlawful discrimination [citations]." (People v. Barrett (2012) 54 Cal.4th 1081, 1110.) Concededly, for the purpose of punishment, the Legislature has determined that offenders convicted under section 286, subdivision (d)(2), and section 288a, subdivision (d)(2), are subject to greater punishment than section 288, subdivision (a), offenders. However, such disparity is reasonably explained by the Legislature's determination that a more severe punishment for aiders and abettors might act as a deterrent to persons who might be inclined to do things together that they would not otherwise do alone. (See People v. Romo, supra, 14 Cal.3d at pp. 192, 196 [rejecting equal protection argument based on claim that assault with a deadly weapon could be punished more severely than greater offense of assault with intent to commit murder as greater punishment for lesser offense might act as deterrent to the lesser conduct which was more likely to occur than the greater offense].) Nevertheless, despite the greater punishment, under sections 286, subdivision (d)(2), and 288a, subdivision (d)(2), a person can be convicted for merely aiding and abetting a forcible sex offense committed on a child under the age of 14. Accordingly, the Legislature could have rationally determined that such aiders and abettors, while not less criminally culpable than persons who act alone, may be more amenable to rehabilitation and less likely to reoffend than someone who acts alone. " '[W]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.' [Citation.] 'A classification is not arbitrary or irrational simply because there is an "imperfect fit between means and ends" ' [citation], or 'because it may be "to some extent both underinclusive and overinclusive." ' [Citations.]" (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 887.) Accordingly, we must conclude defendant's equal protection argument fails because he has failed to negate every conceivable basis that might support the Legislature's decision to prohibit requests for certificates of rehabilitation by section 288, subdivision (a), offenders, but not section 286, subdivision (d)(2), and section 288a, subdivision (d)(2), offenders.
In light of our determination, we do not need to address the Attorney General's argument that defendant forfeited his appellate argument as he failed to object on the specific ground he now asserts on appeal. Additionally, we note that our decision is limited to defendant's request for a certificate of rehabilitation relative to his 1993 California conviction. We do not address defendant's request for termination of his lifetime sex offender registration under section 290.5, subdivision (a)(2). Persons seeking relief from the duty to register as a sex offender under section 290.5 must first obtain a certificate of rehabilitation pursuant to section 4852.01. (§ 290.5, subd. (a)(1) ["[a] person required to register under Section 290 for an offense not listed in paragraph (2), upon obtaining a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852 .01) of Title 6 of Part 3, shall be relieved of any further duty to register under Section 290 if he or she is not in custody, on parole, or on probation;" italics added.) Because the trial court denied defendant's application for a certificate of rehabilitation under section 4852.01, subdivision (d), with the result that he has not yet come within the scope of section 290.5, we decline to address his separate section 290.5 request. Additionally, we do not address defendant's request for a certificate of rehabilitation for his 1992 Wisconsin conviction. (See People v. Faranso (2015) 240 Cal.App.4th 456, 465-466 ["a California court lacks jurisdiction to issue a certificate of rehabilitation respecting a conviction from another state"].) --------
DISPOSITION
The February 18, 2016 order is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.