People v. Cervantes CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SRD1512
- Trial judge
- David M. Gill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), McINTYRE, Cynthia Aaron
Analysis
The trial court denied Cervantes's petition for a certificate of rehabilitation and pardon, rejecting his equal protection claim and determining he was ineligible based on the express language of Penal Code section 4852.01, subdivision (d). The Court of Appeal affirmed the order, holding that the 2014 amendment to the statute was a clarification of existing law and not a retroactive change that would revive his constitutional argument.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for certificate of rehabilitation and pardon based on statutory ineligibility and rejection of equal protection claim“The court also cited the 2014 amendment to section 4852.01, subdivision (d).” | de novo | correct | agree with court The appellate court applied de novo review to the constitutional equal protection argument, which is the correct standard for constitutional questions. The court found the trial court's reliance on the statutory text and the legislative history of the 2014 amendment (as a clarification rather than a change) to be legally sound, thereby affirming the denial. |
Authorities
- relied: People v. Ansell (2001) 25 Cal.4th 868 — Section 4852.01 et seq. sets forth the procedure for restoration of rights and application for pardon.
- relied: People v. Ramos (1997) 15 Cal.4th 1133 — Constitutional arguments are reviewed de novo.
- relied: Western Security Bank v. Superior Court (1997) 15 Cal.4th 232 — A statute that merely clarifies, rather than changes, existing law does not operate retrospectively.
The appellate opinion: sound with gaps — The opinion is procedurally sound in applying de novo review to the constitutional claim and correctly utilizing the legislative history to determine the 2014 amendment was a clarification. However, it is a 'sound with gaps' opinion because it is extremely brief and does not explicitly address the specific equal protection comparison Cervantes made regarding other offenses, relying instead on the statutory bar and the non-retroactive nature of the amendment.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Manuel Cervantes's petition for a certificate of rehabilitation and pardon, finding him statutorily ineligible under Penal Code section 4852.01, subdivision (d) because of his 1994 section 288 conviction, and rejecting his equal protection claim premised on the lack of a bar for section 288.7 offenders. The Court of Appeal reviewed the constitutional claim de novo, took judicial notice of legislative history showing the 2014 amendment adding section 288.7 merely clarified existing law, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for certificate of rehabilitation on the ground that Cervantes was ineligible under the express language of section 4852.01, subdivision (d)“ineligible to apply for a certificate of rehabilitation based on the express language of [section 4852.01, subdivision (d)].” | de novo | correct | agree with court Section 4852.01, subdivision (d) expressly excludes persons convicted of violating section 288; the opinion correctly notes this and cites People v. Ansell for the structure of the statutory procedure. The statutory ineligibility is not disputed on appeal apart from the equal protection theory. |
Rejection of equal protection claim, relying in part on the 2014 amendment adding section 288.7 offenders to the list of ineligible applicants“The legislative history demonstrates the purpose of the 2014 amendment to section 4852.01, subdivision (d), was to clarify existing law excluding persons convicted of violating section 288.7 from the section 4852.01 procedure.” | de novo | correct | agree with court The court applied the settled rule from Western Security Bank that a clarifying amendment does not operate retrospectively even when applied to earlier events, so the fact that the petition predated the amendment did not preserve a disparity between section 288 and 288.7 offenders. The reasoning is thin and does not expressly address the broader argument made below about other allegedly more egregious offenses, but the only argument framed on appeal was the retroactivity point, which the court answered with controlling authority. |
Authorities
- relied: People v. Ansell (2001) 25 Cal.4th 868 — Describes the statutory procedure for restoration of rights and application for pardon under section 4852.01 et seq.
- relied: People v. Ramos (1997) 15 Cal.4th 1133 — Constitutional claims such as equal protection are reviewed de novo on appeal.
- relied: Western Security Bank v. Superior Court (1997) 15 Cal.4th 232 — A statute that merely clarifies rather than changes existing law does not operate retrospectively even when applied to transactions predating its enactment; the Legislature's purpose in amending need not be to change the law.
The appellate opinion: sound with gaps — The court answered the only appellate argument raised, the non-retroactivity of the 2014 amendment, with the correct controlling rule from Western Security Bank and legislative history judicially noticed without opposition. It did not, however, explain in any detail how the clarification disposed of the equal protection claim or address the trial-level contention about other more egregious offenses not subject to the bar, leaving the analysis cursory.
Opinion
Filed 1/11/16 P. v. Cervantes CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068250
Plaintiff and Respondent, v. (Super. Ct. No. SRD1512)
MANUEL CERVANTES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
Law Offices of Robert D. Salisbury and Robert D. Salisbury, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent. In 1994, Manuel Cervantes entered a negotiated guilty plea to committing a lewd act on a child under age 14, a felony (Pen. Code,1 § 288, subd. (a)), and annoying or molesting a child under age 18, a misdemeanor (§ 647.6). The court suspended imposition of sentence and placed Cervantes on three years' probation on the condition, inter alia, that he serve 180 days in local custody.
Section 4852.01 et seq. sets forth a "Procedure for Restoration of Rights and Application for Pardon." (People v. Ansell (2001) 25 Cal.4th 868, 874-875.) The procedure is unavailable to persons convicted of violating section 288. (§ 4852.01, subd. (d).) Nevertheless, in 2013, Cervantes filed a petition for a certificate of rehabilitation and pardon (§§ 4852.01, 4852.06). The San Diego County District Attorney notified Cervantes he was not eligible for relief. In 2014, section 4852.01, subdivision (d), was amended to add to the list of proscribed applicants persons convicted of violating section 288.7 (sexual acts with a child 10 years or younger). (Stats. 2014, ch. 280, § 3.)
In April 2015, Cervantes filed an application for an order to show cause in re:
eligibility to petition for a certificate of rehabilitation and pardon. In the application, he asserted he was denied equal protection because he was statutorily barred from relief, while persons convicted of violating section 288.7, and other more egregious offenses, were not barred. In May, the court denied the petition, rejecting the equal protection claim and determining Cervantes was "ineligible to apply for a certificate of 1 Further statutory references are to the Penal Code unless otherwise specified. 2 rehabilitation based on the express language of [section 4852.01, subdivision (d)]." The court also cited the 2014 amendment to section 4852.01, subdivision (d).
Cervantes appeals the denial of his petition, contending the court abused its discretion. He argues he filed his petition in 2013, and the 2014 amendment was not retroactive, so the court erred in concluding the amendment had eliminated his equal protection argument.2 We review this constitutional argument de novo. (People v. Ramos (1997) 15 Cal.4th 1133, 1154.)
We grant the People's unopposed request for judicial notice of the legislative history of Assembly Bill Nos. 1844 and 1438. The legislative history demonstrates the purpose of the 2014 amendment to section 4852.01, subdivision (d), was to clarify existing law excluding persons convicted of violating section 288.7 from the section 4852.01 procedure. "[A] statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment. We assume the Legislature amends a statute for a purpose, but that purpose need not necessarily be to change the law." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.)
2 Cervantes also notes that he filed his petition before the California Supreme Court granted review in People v. Tirey (Apr. 25, 2014, as mod. May 1, 2014, and May 2, 2014, G048369, review granted Aug. 20, 2014, S219050). The grant of review precludes Cervantes from relying on the Court of Appeal opinion in that case. 3 DISPOSITION The order is affirmed.
MCCONNELL, P. J.
WE CONCUR:
MCINTYRE, J.
AARON, J.
Cites, in this corpus
- People v. Ansell S079744 · 2001-06-14
- People v. Ramos No. S005499 · 1997-07-07
- Western Security Bank v. Superior Court S037504 · 1997-04-07