People v. Lugas

• Citation: 76 Cal.App.4th 696,91 Cal.Rptr.2d 11
• Decision Date: 30 November 1999
• Docket Number: No. H018805.,H018805.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Joseph LUGAS, Defendant and Appellant.

91 Cal.Rptr.2d 11

76 Cal.App.4th 696

The PEOPLE, Plaintiff and Respondent, v. Donald Joseph LUGAS, Defendant and Appellant.

No. H018805.

Court of Appeal, Sixth District.

November 30, 1999.

Review Granted February 29, 2000.

John M. Wadsworth, for Appellant.

Bill Lockyer, Attorney General, David Druliner, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Laurence K. Sullivan and Aileen Bunney, Deputy Attorneys General, for Respondent.

ELIA, J.

Donald Joseph Lugas appeals from the denial of his petition for a certificate of rehabilitation (Pen.Code § 4852.01 et seq.).¹ (§ 1237, subd. (b).) On appeal, Lugas argues that application of section 4852.13, as amended in 1996, to his petition violated the ex post facto clauses of the federal and California Constitutions (U.S. Const., art. I, § 10; Cal. Const., art I, § 9) and constitutional due process guarantees.² He also contends that application of section 4852.13, as amended in 1996, to his petition violated the statutory ban on retroactive application of the Penal Code (§ 3). He premises his arguments on the ground that the 1996 amendments came "eighteen years after [he] committed his last offense" and "six years after [he] had already perfected his right to petition for a certificate of rehabilitation and pardon."

We affirm.

A. Legal Background

Article V, section 8 of the California Constitution provides in pertinent part: "Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment .... The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring." "The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 8 of Article V of the Constitution, the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court." (§ 4852.16.) A certified copy of a certificate of rehabilitation is automatically transmitted to the Governor. (§ 4852.14.)

Prior to its amendment in 1996, section 4852.13 had read: "If, after hearing, the court finds that the petitioner has demonstrated by his course of conduct his rehabilitation and his fitness to exercise all of the civil and political rights of citizenship, the court shall make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. Such order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation." (Stats.1978, ch. 380, § 126, p. 1189; italics added.)

Since its amendment in 1996, section 4852.13 has stated in pertinent part: "(a) Except as otherwise provided in subdivision (b), if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner."³ (Italics added.)

Section 4852.19 declares: "This chapter [regarding certificates of rehabilitation] shall be construed as providing an additional, but not an exclusive, procedure for the restoration of rights and application for pardon. Nothing in this chapter shall be construed as repealing any other provision of law providing for restoration of rights or application for pardon." "Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 12001 and 12021 of the Penal Code shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon." (§ 4852.17.)

B. Procedural History

In 1978, Lugas pled guilty to charges of committing a lewd and lascivious act on a child (§ 288), oral copulation (§ 288a, subd. (c)), and incest (§ 285) against his daughter. Lugas was placed on probation and imposition of sentence was suspended. On October 14, 1983, the superior court granted record clearance pursuant to section 1203.4. On September 5, 1997, the defendant filed a petition for a certificate of rehabilitation.

The trial court understood that section 4852.13, as amended in 1996, made issuance of a certificate of rehabilitation to a petitioner who met the statutory prerequisites discretionary whereas under prior law issuance of a certificate was mandatory. Although the court acknowledged that Lugas had "led a crime-free life for 21 years," it denied Lugas' request for a certificate based on other factors, including the gravity of the crimes and the long-term impact on the victim.

C. Ex Post Facto Claim

Lugas argues that the 1996 amendment of section 4852.13 as applied to him violates the ex post facto prohibition because "a certificate of rehabilitation can, either directly or indirectly, remove a variety of the penalties to which a felon is subject because of his criminal conviction." He cites Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469, Cummings v. State of Missouri (1866) 71 U.S. (4 Wall.) 277, 18 L.Ed. 356, and Ex parte Garland (1866) 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 for the proposition that statutory disabilities suffered by convicted felons constitute "punishment" for purposes of ex post facto analysis.

In Sovereign v. People, supra, 144 Cal. App.3d 143, 192 Cal.Rptr. 469, a People's appeal, the court considered whether application of an amendment to section 4852.03 increasing the period of rehabilitation, expiration of which was required before filing a petition for a certificate of rehabilitation, would impose additional punishment prohibited by the ex post facto clauses of the United States and California Constitutions. (Id at pp. 149-150, 192 Cal.Rptr. 469.) The court in Sovereign reviewed a number of disabilities suffered by convicted felons but downplayed the fact that a certificate of rehabilitation does not reinstate a convicted felon to any licensed profession. (Id. at pp. 148-149, 192 Cal.Rptr. 469; see § 4852.15.)⁴ Quoting extensively from Cummings v. Missouri, supra, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 and citing Ex Parte Garland, supra, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366, it then determined that the statutory disabilities facing convicted felons constituted "punishment." (Sovereign v. People, supra, 144 Cal.App.3d at pp. 153-154, 192 Cal. Rptr. 469.) It reasoned that, therefore, "prolonging the time that ex-prisoners remain subject to these penalties constitutes punishment, as well." (Id. at p. 154, 192 Cal.Rptr. 469.)

The appellate court in Sovereign determined that "[t]he ex post fact clause protects the petitioner's opportunity under the former statute to file his petition on the date prescribed by the statute in effect when he completed his prison term and commenced the waiting period." (Id. at p. 152, 192 Cal.Rptr. 469.) It concluded that "the trial court properly calculated petitioner's waiting period under the version of section 4852.03 in effect when he completed his term and commenced the waiting period." (Id. at p. 154, 192 Cal.Rptr. 469.)

We believe the court in Sovereign misapplied those early Supreme Court cases. Both Cummings v. Missouri, supra, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356, and Ex Parte Garland, supra, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366, arose following this country's civil war and involved a prescribed oath that was required to practice a profession. The issue in both cases was whether the oath, which essentially required the person to attest that he had never made any statements or engaged in any acts against the United States, constituted punishment of individuals who had supported or had been involved in the Confederate cause or constituted a legitimate qualification. (Cummings v. Missouri, supra, 71 U.S. (4 Wall.) at pp. 319-320; Ex Parte Garland, supra, 71 U.S. (4 Wall.) at pp. 379-380.) As the United States Supreme Court later stated: "[I]n a few cases the ex post facto prohibition had been applied to what appeared to be civil disabilities. Fletcher v. Peck, 6 Cranch 87 ; Cummings v. Missouri, 4 Wall. 277 ; Ex parte Garland, 4 Wall. 333 ; Pierce v. Carskadon, 16 Wall. 234 . The Court has since explained that those cases proceeded from the view that novel disabilities there imposed upon citizens were really criminal penalties for which civil form was a disguise. Burgess v. Salmon, 97 U.S. 381, 385 ." (Harisiades v. Shaughnessy (1952) 342 U.S. 580, 595, 72 S.Ct. 512, 96 L.Ed. 586 [deportation is not a punishment].)

The U.S. Supreme Court later explained, albeit in dicta: "This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Colder v. Bull, 3 Dall. 386 . Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws, it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties. In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment—that is,...