People v. Garrett CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

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 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.
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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.
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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
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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”].)

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 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.
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 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
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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.

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[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.

RAPHAEL
J.

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