Doe v. Saenz

• Decision Date: 22 June 2006
• Docket Number: No. A105870.,No. A105364.,No. A107142.,A105364.,A105870.,A107142.
• Citation: 140 Cal.App.4th 960,45 Cal.Rptr.3d 126
• Court: California Court of Appeals Court of Appeals
• Parties: Jane DOE et al., Plaintiffs and Respondents, v. Rita SAENZ, as Director, etc., et al., Defendants and Appellants. Mary Glesmann et al., Plaintiffs and Respondents, v. Rita Saenz, as Director, etc., at al., Defendants and Appellants.

45 Cal.Rptr.3d 126

140 Cal.App.4th 960

Jane DOE et al., Plaintiffs and Respondents, v. Rita SAENZ, as Director, etc., et al., Defendants and Appellants.

Mary Glesmann et al., Plaintiffs and Respondents, v. Rita Saenz, as Director, etc., at al., Defendants and Appellants.

No. A105364.

No. A105870.

No. A107142.

Court of Appeal, First District, Division 3.

June 22, 2006.

Bill Lockyer, Attorney General, Teresa Stinson and Douglas M. Press, Supervising Deputy Attorneys General, Susan Joyce King, Deputy Attorney General for Defendants and Appellants.

The Social Justice Law Project and Peter Sheehan for Plaintiffs and Respondents.

McGUINESS, P.J.

Persons convicted of crimes other than minor traffic offenses are presumptively disqualified from working in licensed community care facilities, which provide care and services to people such as the disabled, the elderly, and foster children. (See generally Health & Saf.Code, §§ 1502, subd. (a), 1522, subd. (c)(3).)¹ The Director of the Department of Social Services has discretion to allow persons convicted of certain offenses to work in community care facilities, although the Director has no discretion to grant such a criminal record exemption to persons convicted of specified non-exemptible offenses. (See, e.g., § 1522, subd. (g)(1).)

These consolidated appeals arise out of actions against the Department of Social Services and several of its Directors (collectively, the Department) challenging the Department's classification of certain crimes as non-exemptible offenses. Included among offenses considered non-exemptible are "crime[s] against an individual" specified in Penal Code section 667.5, subdivision (c) (hereafter Penal Code section 667.5(c)). (See, e.g., § 1522, subd. (g)(1)(A)(i).) After Proposition 21 passed in 2000, the list of violent felonies in Penal Code section 667.5(c) was expanded to include, among other crimes, first degree burglary with a non-accomplice present, an offense we shall refer to as "occupied burglary." (Pen.Code, § 667.5, subd. (c)(21).) The trial court held that the Department may not treat "occupied burglary" as a non-exemptible offense, reasoning it is not a crime against an individual.

Unquestionably, occupied burglary is a crime involving a potential for violence, justifying an enhanced sentence under Penal Code section 667.5 for habitual offenders who commit that crime. However, a potential for violence does not transform the offense into a crime against an individual, which generally requires the use of force or an expressed threat to use force or inflict harm. A defendant may be convicted of occupied burglary even though the defendant believed the dwelling was unoccupied and had no contact with the occupant during the burglary. Accordingly, even though occupied burglary creates a potential for violence and merits more severe punishment for habitual criminals, we agree with the trial court that occupied burglary is not a crime against an individual for purposes of determining whether an applicant may seek a criminal record exemption to work in a community care facility.

The trial court also held that the Department's method of notifying persons it concludes have been convicted of non-exemptible offenses violates constitutional due process guarantees, and it held that the Department's policy of treating a second degree robbery conviction as a non-exemptible offense even though the convicted person has obtained a certificate of rehabilitation violates equal protection principles. We affirm the judgment.

STATUTORY AND REGULATORY FRAMEWORK

The Department regulates and licenses community care facilities such as residential group homes, adult day care facilities, foster family agencies, and foster child facilities. (§ 1502, subd. (a).) The Department is also responsible for regulating and licensing other categories of care facilities governed by separate statutory provisions, including residential care facilities for the chronically ill (§ 1568.01 et seq.), residential care for the elderly (§ 1569 et seq.), and child care facilities (§ 1596.76 et seq.) For ease of reference we refer collectively to all of these facilities as community care facilities.²

The Department also maintains a "trustline" registry of persons who provide child care in an unlicensed home setting. (§ 1596.60 et seq.) Trustline registers child care providers who pass criminal record and child abuse background screening, and it makes available a registry for parents and agencies to determine if a child care provider such as a babysitter or nanny has satisfied the registry's screening requirements. The trustline registration process incorporates the criminal record exemption procedures applied to licensed child care facilities. (§§ 1596.605, subd. (b)(1), 1596.607, subd. (a)(1).)

Four similar criminal record exemption statutes (collectively, the exemption statutes) establish procedures for screening applicants who seek to operate, work, or be present in each of four different types of community care facilities. (See generally §§ 1522 [community care facilities], 1568.09 [residential care facilities], 1569.17 [elderly residential care], and 1596.871 [child care facilities].) Before any person may register as a trustline provider or operate, work, or be present in a licensed community care facility, that person must obtain either a criminal record clearance or, if convicted, must apply for and obtain a criminal record exemption from the Department. (§§ 1522, subd. (a), 1568.09, subd. (a), 1569.17, subd. (a), 1596.871, subd. (a)(1); see also §§ 1596.605, subd. (b)(1) & 1596.607, subd. (a) [applying procedures in section 1596.871 to trustline applicants].)

The Director has discretion to grant a criminal record exemption for persons convicted of certain crimes (exemptible offenses). (See generally §§ 1522, subd. (g)(1), 1568.09, subd. (f)(1), 1569.17, subd. (f)(1), 1596.871, subd. (f)(1) [setting forth general rule that person convicted of crime may seek exemption subject to exceptions].) However, the Director has no discretion to grant an exemption for persons convicted of designated crimes (non-exemptible offenses), including offenses such as sexual battery, certain crimes affecting children or the elderly, and a "conviction of another crime against an individual specified in subdivision (c) of section 667.5 of the Penal Code."³ (§§ 1522, subd. (g)(1)(A)(i), 1568.09, subd. (f)(1)(A), 1569.17, subd. (f)(1)(A), 1596.871, subd. (f)(1)(A).) All four of the exemption statutes contain identical language defining as non-exemptible offenses "crime[s] against an individual" listed in Penal Code section 667.5(c). (Ibid.)

Penal Code section 667.5 is a sentence enhancement statute that requires the imposition of an additional term for habitual criminals convicted of violent felonies who have served a prior prison term for a violent felony. Subdivision (c) of Penal Code section 667.5 defines "violent felony" as one of 23 enumerated offenses. Before Proposition 21 passed in 2000, Penal Code section 667.5(c) enumerated 19 offenses as violent felonies, a list that did not include second degree robbery or any form of burglary. (Former Pen.Code, § 667.5(c), as amended by Stats.1997, ch. 504, § 2.) After the passage of Proposition 21, however, the list of violent felonies in Penal Code section 667.5(c) was expanded to include any robbery and what we refer to as "occupied burglary," defined as first degree burglary when it is charged and proved that a person other than an accomplice was present in the residence during the commission of the burglary. (Pen. Code, § 667.5(c)(9) & (21).) Although a burglary of an "inhabited dwelling house" qualifies as a first degree burglary (Pen. Code, § 460, subd. (a)), "inhabited" as used in the statute simply means the building is "currently being used for dwelling purposes, whether occupied or not." (Pen. Code, § 459.) Thus, a conviction for first degree burglary does not necessarily qualify as an "occupied burglary" as defined in Penal Code section 667.5, subdivision (c)(21).

One of the issues raised in these consolidated appeals is whether the reference in the criminal record exemption statutes to Penal Code section 667.5(c) was intended to designate all or merely a subset of the violent felonies listed in that statute as non-exemptible offenses. The Department contends all crimes listed in Penal Code section 667.5(c) are non-exemptible, while respondents assert that only certain crimes listed in that subdivision are non-exemptible. More specifically, respondents contend that occupied burglary is not an non-exemptible offense, because it is not a "crime against an individual" and was added to Penal Code section 667.5(c) only after the Legislature had defined non-exemptible offenses by reference to an earlier version of that subdivision.

Although specified crimes are considered non-exemptible, an applicant who has suffered a non-exemptible conviction may, under certain circumstances, seek an exemption. In particular, section 1522 provides that a person convicted of specific non-exemptible offenses may seek an exemption if the person has obtained a certificate of rehabilitation. (§ 1522, subd. (g)(1)(A)(ii).) To obtain a certificate of rehabilitation, a convicted criminal must complete his or her sentence and period of parole, remain a resident of the state for a specified period with no further violations of the law, demonstrate good conduct, and satisfy other statutory requirements. (Pen.Code, §§ 4852.01, 4852.03, 4852.05, 4852.06.) The provision permitting certain offenders who have received a certificate of rehabilitation to seek an exemption applies to persons convicted of murder, mayhem, any felony punishable by death or life imprisonment, any armed felony, or a felony in which great bodily harm is inflicted, among other crimes. (§ 1522, subd. (g)(1)(A)(ii); Pen.Code, § 667.5, subd. (c)(1), (2), (7), (8).)

The exemption process...