Ayala v. Superior Court

• Decision Date: 07 September 1983
• Citation: 194 Cal.Rptr. 665,146 Cal.App.3d 938
• Court: California Court of Appeals Court of Appeals
• Parties: Alphonso Medina AYALA, Petitioner, v. SUPERIOR COURT of the STATE OF CALIFORNIA FOR the COUNTY OF VENTURA, Respondent, PEOPLE of the State of California by their Attorney Michael D. BRADBURY, District Attorney of Ventura County, Real Party in Interest. Civ. 67990.

Page 665

194 Cal.Rptr. 665

146 Cal.App.3d 938

Alphonso Medina AYALA, Petitioner, v. SUPERIOR COURT of the STATE OF CALIFORNIA FOR the COUNTY OF VENTURA, Respondent PEOPLE of the State of California by their Attorney Michael D. BRADBURY, District Attorney of Ventura County, Real Party in Interest.

Civ. 67990.

Court of Appeal, Second District, Division 6, California.

Sept. 7, 1983.

As Modified Sept. 12, 1983.

As Modified Oct. 6, 1983.

Richard E. Erwin, Public Defender of Ventura County, David P. Ammons, Asst. Public Defender, H. Bruce Kinnison, Deputy Public Defender, for petitioner.

No appearance by respondent.

Michael D. Bradbury, Dist. Atty. of Ventura County, Ken W. Riley, Deputy Dist. Atty., John K. Van De Kamp, Atty. Gen., Robert R. Anderson and Christine C. Franklin, Deputy Attys. Gen., for real party in interest.

GILBERT, Associate Justice.

Petitioner seeks review of an order of the superior court denying his petition for a certificate of rehabilitation (Pen.Code, § 4852.01, et seq.). ¹ Inasmuch as it appears that appeal is an inadequate remedy, this court has issued an alternative writ of mandate. (Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 128, 142 Cal.Rptr. 325.) We agree with petitioner that the superior court erred in denying his petition.

Petitioner pled guilty to rape and assault charges (§§ 261(2) and 220) on December 16, 1975. On February 6, 1976, criminal proceedings were suspended and petitioner was committed to Atascadero State Hospital as a mentally disordered sex offender ("MDSO"). He was released from Atascadero on December 9, 1977, and treated as an out-patient.

Criminal proceedings were resumed on October 26, 1978 (former Welf. & Inst.Code, § 6325.1(a)). On November 27, 1978, petitioner was placed on three years' probation. His motion to set aside the plea and dismiss charges was granted January 13, 1982. (§ 1203.4.) On July 2, 1982, petitioner moved for a certification of rehabilitation. (§ 4852.01(c).) ² A petition for a certificate of rehabilitation is the first step that an ex-felon must take in seeking a pardon from the Governor. The ex-felon must establish that during a prescribed period he has met certain conditions which demonstrate his rehabilitation. (§ 4852.08.) Should the court determine that the ex-felon has established his rehabilitation, it shall issue a certificate of rehabilitation and recommend that the Governor grant a full pardon to petitioner. (§ 4852.13.) A full pardon restores all rights, privileges and franchises to the ex-felon. (§ 4853.)

Petitioner's request for a certificate of rehabilitation was argued on December 16, 1982. The court found that petitioner's release on probation (November 27, 1978)--not his release as a MDSO outpatient (December 9, 1977)--was the controlling date for the purposes of commencing the running of the five-year period set forth in section 4852.03. ³ The court, in denying the petition, ruled that petitioner was not eligible for a certificate of rehabilitation until five years had run from the date that he was placed on probation (November 27, 1978).

At the outset we are confronted with real party's argument that the petition for a certificate of rehabilitation, filed on July 2, 1982, was submitted prematurely. Real party contends that the petition could not be filed, under petitioner's theory, until five years after his date of release as an MDSO outpatient (December 9, 1977).

There is no claim that real party was misled or in any prejudiced by the earling filing of the petition. Moreover, real party failed to raise the problem by a motion to dismiss at a time when the defect could have been cured. The premature filing of the petition harmed no one; at its worst it offended a sense of legal propriety. The argument advanced by real party only serves to undercut the policy of liberal construction of section 4852.03 in order "to promote the objective of alleviating the collateral consequences of a felony conviction." (Daudert v. People (1979) 94 Cal.App.3d 580, 587, 156 Cal.Rptr. 640.) We therefore treat the petition for a certificate of rehabilitation as being timely filed.

Petitioner asserts that a "liberal" interpretation would construe the phrase, "discharge of the petitioner from custody due to ... his release on parole," to include MDSO outpatients. He alludes to certain similarities between a parolee and MDSO outpatient. For example, both are required to have an appropriate program of supervision by state officials. (Cf. Pen.Code, §§ 3052 and 3053 with §§ 1603, 1604, and 1605.) Moreover, parolees and MDSO outpatients remain under legal custody subject to reimprisonment. (Cf. Pen.Code, § 3056 with §§ 1609-1610.)

On the other hand, there are significant differences in the status of MDSO outpatients and parolees. The statutory scheme governing parolees does not apply to MDSO outpatients. (§ 3000, et seq.) The confinement of MDSOs is for the purpose of treatment, not punishment. (People v. Saffell (1979) 25 Cal.3d 223, 229, 157 Cal.Rptr. 897, 599 P.2d 92.) The Legislature has made a clear distinction between those adjudged incompetent under section 1026 and those classified MDSO. In the former classification, the Penal Code refers to the party as being under "parole treatment." (§§ 1611, 1613.) At no time is the MDSO outpatient referred to in this manner. Accordingly, we find that petitioner's status as a MDSO outpatient is not, for the purposes of section 4852.03, equivalent to being released on parole.

Thus, we are confronted with the question of whether section 4852.03 operates to deny petitioner his right of equal protection of the law. When reviewing legislative classifications under the equal protection clauses of the United States and California Constitutions, the classification is generally presumed to be constitutional. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17, 112 Cal.Rptr. 786, 520 P.2d 10.) "However, once it is determined that the classification scheme affects a fundamental interest or right the burden shifts; thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose." (Italics in original.) (People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375.)

Petitioner asserts that his right to vote, a fundamental right, is at stake in this proceeding and urges that this court apply the strict scrutiny test. Article II, section 4 of the California Constitution bars the right to vote to those who are "mentally incompetent or imprisoned or on parole for the conviction of a felony." (See also, Elections Code, § 701, 707; Flood v. Riggs (1978) 80 Cal.App.3d 138, 145 Cal.Rptr. 573.) Since petitioner is not mentally incompetent, not imprisoned and not on parole, his right to vote is not impaired. Accordingly, our inquiry must be directed to the question of whether or not the statutory classification bears a "rational relationship" to a conceivable legitimate state purpose. (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487.)

Real party asserts that a "compelling" state interest supports the discriminatory classification scheme. (People v. Saffell, supra, 25 Cal.3d at pp. 233-235, 157 Cal.Rptr. 897, 599 P.2d 92.) In Saffell, our Supreme Court held that equal protection does not require that MDSOs receive "good time" credit for good conduct during their institutionalization in a state hospital, even though prison inmates are eligible for such credits while in prison. (See also People v. Superior Court (Waitley) (1982) 130 Cal.App.3d 39, 180 Cal.Rptr. 790.)

Justice Richardson's opinion in People v. Saffell, supra, 25 Cal.3d at page 223, 157 Cal.Rptr. 897, 599 P.2d 92, enumerates five reasons ⁴ that underlie the disparate treatment of institutionalized MDSOs. However, none of the reasons mentioned by Justice Richardson are applicable to the situation presented here. Indeed, the discriminatory treatment of MDSO outpatients only serves to hamper the societal goal of rehabilitation.

An ex-felon is subject to a wide array of "collateral consequences" of his criminal conviction. ⁵ For example, an ex-felon cannot engage in certain businesses (Bus. & Prof.Code, § 480); must register with local law enforcement authorities if his offense related to certain sex charges (§ 290; but see In re Reed (1983) 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216); loses the right to possess arms (§ 12021); and, if he testifies in court, may be impeached on the basis of his prior felony conviction (Evid.Code, § 788). A number of these disabilities may be removed once the ex-felon has obtained a certificate of rehabilitation. ⁶ The continued imposition of punitive disabilities--long after the ex-felon has served his time and demonstrated for a period of years that he is able to live crime-free in society--frustrates the goal of rehabilitation and thereby increases the likelihood of recidivism. ⁷ If the societal goal of rehabilitation is to represent something more than a hollow promise, it is imperative that the ex-felon be freed of these disabilities at the earliest feasible moment. ⁸

Although "the purpose of imprisonment for crime is punishment" (§ 1170, subd. (a)(1)), rehabilitation remains an important consideration in the treatment of criminals. (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 687, 3 Cal.Rptr. 158, 349 P.2d 974; People v. Superior Court (Sovereign), supra, 144 Cal.App.3d at pp. 148-149, 192 Cal.Rptr. 469.) Professor Herbert Morris in his provocative article "Persons and Punishment" in The Monist (Oct. 1968), argues that punishment derives from a person's inalienable right to be treated as a human being. It gives one who has violated society's rules in the past the opportunity to pay a debt back to society and restore the equilibrium which has been upset. This is a way of achieving...