People v. Jerry Z.

• Decision Date: 29 November 2011
• Docket Number: No. A127878.,A127878.
• Citation: 11 Cal. Daily Op. Serv. 14370,201 Cal.App.4th 296,2011 Daily Journal D.A.R. 17129,133 Cal.Rptr.3d 696
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent,v.JERRY Z., Defendant and Appellant.

201 Cal.App.4th 296

133 Cal.Rptr.3d 696

11 Cal. Daily Op. Serv. 14,370

2011 Daily Journal D.A.R. 17,129

The PEOPLE, Plaintiff and Respondent,

v.JERRY Z., Defendant and Appellant.

No. A127878.

Court of Appeal, First District, Division 2, California.

Nov. 29, 2011.

Mark Shenfield, Guerneville, First District Appellate Project, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Ann P. Wathen, Deputy Attorney General, for Plaintiff and Respondent.RICHMAN, J.

INTRODUCTION

Appellant Jerry Z.¹ was convicted by plea in 1997 of one count of continuous sexual abuse of a child under age 14 ( Pen.Code, § 288.5) ² based on the molestation of his daughter, age 19 at the time of his conviction. Appellant was granted probation with a one-year jail sentence and various conditions of probation, including sex offender registration under section 290.

Appellant claims that as part of his plea bargain he was promised that if he successfully completed probation, and thereafter committed no additional offenses for a period of ten years, his statutory obligation for registration pursuant to Penal Code section 290 would be terminated, he would be allowed to withdraw his plea and have the charges dismissed under section 1203.4, to obtain a certificate of rehabilitation under section 4852.01 et seq., and be relieved pursuant to section 290.5 of his sex offender registration requirements. At the time of his plea, the statutes in question allowed the forms of relief mentioned, but they have since been amended to disallow such relief for anyone convicted under section 288.5.

Appellant has sought enforcement of these claimed provisions of his plea bargain by various means at various times as a pro se litigant. The Attorney General in fact contends he is barred from seeking relief now because he failed to appeal an earlier adverse ruling. We disagree with the Attorney General, address the merits of appellant's position, and grant the requested relief.

FACTUAL AND PROCEDURAL HISTORY OF THE CONVICTION

On January 7, 1997, it came to the attention of the police that appellant's 16–year–old daughter (Jane Doe I) had been molested by her father from spring 1993 to the beginning of 1995, when she was approximately 13 to 15 years old. In the ensuing investigation it came to light that appellant's then 18–year–old daughter (Jane Doe II) had also been molested by her father from September 1991 to October 1995, making her 13 when the molestation began.

The molestation of Jane Doe I occurred two or three times a week and involved rubbing her vagina with his hand under her clothing and several incidents of digital penetration. The molestation of Jane Doe II occurred once a week, sometimes once a month, and involved French kissing, touching and sucking her breasts, and digital penetration.

The molestation had come to the attention of the girls' mother in November 1995 when the girls confronted their father during a family argument. The mother said the abuse was a result of the father's depression and did nothing further about it. The father and both girls told investigators the abuse had stopped sometime in 1995 when Jane Doe I complained to her father that she did not think it was right, shortly before Jane Doe II told their mother about the abuse.

Appellant was charged in a six-count complaint with two counts of continuous sexual abuse of a child under age 14, naming Jane Doe I and Jane Doe II as victims (§ 288.5), three counts of lewd and lascivious conduct with a child aged 14 or 15 (§ 288, subd. (c)) (one count relating to Jane Doe I and two counts relating to Jane Doe II), and one count of rape with a foreign object of a minor under age 18 (§ 289, subd. (h)) relating to Jane Doe II.

On March 27, 1997, pursuant to a plea bargain, appellant pled no contest to one count against Jane Doe II under section 288.5 in exchange for dismissal of the other charges. He faced a maximum sentence of 16 years in prison for that conviction. (§ 288.5, subd. (a).) Under the plea bargain he was to be admitted to probation for five years, with one year in county jail.

There was no written plea agreement. At the change of plea proceeding defense counsel recited the foregoing major terms of the plea bargain, but there was no mention of prospective relief from conviction or registration. Appellant was informed by the court that he would be required to register under section 290, but he was not told how long the registration requirement would last. Appellant acknowledged that no promises had been made other than those recited in open court.

Before accepting his plea, the court received a psychiatric report under section 288.1. That report attributed the molestation to “extended periods of severe depression and problems within his marriage” leading appellant to take advantage of his daughters in an “inappropriate fashion,” but he was “seen as ‘acting out’ and not being directed in a criminal or deliberate fashion to commit acts of a criminal nature.” The report indicated appellant had undergone a religious awakening, had benefited from antidepressant medication, and was “not a risk to repeat the behaviors” that led to his conviction. He exhibited a “clearly heartfelt desire to never bring about pain of this nature within his lifetime ever again.”

After the plea, and before sentencing, a second psychiatrist diagnosed appellant with “pedophilia, attracted to females and limited to incest but without sexual intercourse.” This doctor, too, noted a “history [of] depression” then “in remission” and predicted appellant would not be a “present danger to the health or safety of others, including his two daughters.” Appellant was described as having “legitimate remorse for his behavior.” The doctor recommended that appellant be given “serious consideration for probation.”

On April 17, 1997, appellant was granted probation for five years on condition he serve one year in county jail. He was again informed by the court he would be required to register under section 290, again without reference to the duration of that requirement. Defense counsel was asked, “[A]re there any other specific terms and conditions being requested for his probation?” She responded, “No.”

On June 5, 1997, the probation department addressed a document to appellant which, among other things, advised him of the availability of relief under section 1203.4. It read in part, “If you fulfill all the conditions of your probation, you may come in at the end of the probationary period, change your plea (or conviction) from guilty to not guilty, and have the charges dismissed. Certain California Vehicle Code violations are not applicable due to Department of Motor Vehicle regulations.”

CHANGES IN THE LAW

At the time of appellant's plea, a conviction under section 288.5 did not bar relief under section 1203.4 upon successful completion of probation. ³ Appellant was entitled as a matter of right to relief under that statute if he fulfilled the terms of his probation ( People v. Chandler (1988) 203 Cal.App.3d 782, 787, 788, 250 Cal.Rptr. 730), and then could have applied for a certificate of rehabilitation under section 4852.01.⁴ To the extent he made an appropriate showing of his rehabilitation in accord with section 4852.13, the court then “may” have granted him such a certificate. (See fn. 11, post.) After ten crime-free years of compliance with sex offender registration requirements, appellant could have then applied to be relieved of sex offender registration under section 290.5, subdivision (b)(3), but that section required (and still requires) an applicant to first obtain a certificate of rehabilitation before being eligible to be relieved of registration requirements. Even after obtaining such a certificate, a person convicted of violating section 288.5 “may” have been relieved of registration requirements in the court's discretion.⁵

But the law soon changed, so that effective January 1, 1998, those convicted under section 288.5 became categorically ineligible for those forms of relief. In July 1997, the Legislature amended section 1203.4 to make relief under that statute unavailable to those convicted of violating section 288.5. (§ 1203.4, subd. (b); Stats.1997, ch. 61, § 1, p. 405.) That same bill amended section 4852.01 to disqualify those convicted of violating section 288.5 from receiving a certificate of rehabilitation. (§ 4852.01, subd. (d); Stats.1997, ch. 61, § 2, p. 407.)

At the time of appellant's plea, as now, dismissal under section 1203.4 was a prerequisite to obtaining a certificate of rehabilitation; and a certificate of rehabilitation was, and still is, a prerequisite to being relieved of registration requirements under section 290.5. (§§ 290.5, subds. (a)(1), (a)(2), (b)(3), 4852.01, subd. (c).) The 1997 revisions to these sections applied retroactively to one convicted before their effective date. ( People v. Ansell (2001) 25 Cal.4th 868, 884–885, 893, 108 Cal.Rptr.2d 145, 24 P.3d 1174 ( Ansell ); People v. Arata (2007) 151 Cal.App.4th 778, 784–785, 60 Cal.Rptr.3d 160 ( Arata ).)

In 1999 section 290.5, subdivision (b), was also amended to foreclose relief from registration for individuals convicted under section 288.5, by providing, effective January 1, 2000, that relief from registration was available only if a certificate of rehabilitation had been obtained prior to January 1, 1998. (§ 290.5, subd. (b)(3); Stats.1999, ch. 576, § 2, p. 4092.) In addition, section 290.5 was amended in 2005 to provide: “A person required to register under Section 290, upon obtaining a certificate of rehabilitation ..., shall not be relieved of the duty to register under Section 290” if his or her conviction was for violating section 288.5. (§ 290.5, subd. (a)(2)...