People v. Weiglein

• Decision Date: 21 August 2015
• Docket Number: A143494
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DENNIS BERT WEIGLEIN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. DENNIS BERT WEIGLEIN, Defendant and Appellant.

A143494

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

August 21, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. C-70781)

Defendant Dennis Bert Weiglein appeals from an October 22, 2014, order denying his petition for certificates of rehabilitation and pardon for a 1966 felony conviction for forcible rape and a 1995 misdemeanor conviction for molesting a child under the age of 18 years. (Pen. Code, § 4852.01 et. seq.¹). We affirm.

FACTS

A. Background

On July 29, 1966, the San Bernardino County District Attorney filed an amended complaint against defendant, charging him with three felony offenses: rape by means of force and violence (count one) and kidnapping (count two) based on a July 27, 1966, incident concerning one victim, and rape by means of force and violence (count three) based on a June 27, 1966, incident concerning a different victim. On August 12, 1966, defendant pled guilty to count one (forcible rape) (§ 261, subd. (3) [now subd. (a)(2)])² and the remaining counts were dismissed on the district attorney's motion. On October 28, 1966, defendant's application for probation was denied and he was sentenced to state prison for the "term prescribed by law" (three years to life). He was discharged from prison after completing his sentence and released on parole from which he was finally discharged in October 1971.

On December 1, 1994, the Alameda County District Attorney filed a complaint against defendant, charging him with one count of misdemeanor molestation of a child under the age of 18 years (§ 647.6). On January 11, 1995, defendant pled guilty to thecharged offense³ and was immediately sentenced to a three-year probationary term with a condition that he serve 30 days in county jail. After serving the jail time, defendant was released from custody and successfully completed his probation in January 1998.

B. Trial Court Proceeding

On March 5, 2014, 78-year-old defendant filed a petition for certificates of rehabilitation and pardon (hereafter "certificate of rehabilitation"⁴) in Alameda County Superior Court, seeking relief relative to the 1966 felony conviction and the 1995 misdemeanor conviction. He submitted a declaration detailing the circumstances of his life since his 1966 conviction, and averred that during the period of his rehabilitation, he met the statutory criteria that he live "an honest and upright life," conduct himself "with sobriety and industry," "exhibit good moral character," and "shall conform to and obey the laws of the land." (§ 4852.05.)

On August 12, 2014, an inspector for the Alameda County District Attorney's Office submitted a report (hereafter inspector's report), dated July 31, 2014. In his report, the inspector described, among other things, the circumstances leading to theconvictions at issue and another 2008 misdemeanor conviction⁵, defendant's employment history and family circumstances, defendant's compliance with section 290 sex offender registration, and interviews with the victim of the molestation offense, defendant's family members, and defendant's "character references." The inspector attached to his report copies of records from various agencies including the Fremont Police Department (reports in 1997, 2003, 2005, of defendant's suspicious behavior relative to minors, none of which resulted in arrests), Consolidated Records Information Management System (CRIMS), and CSAR (showing "annual violations" regarding defendant's section 290 sex offender registration in each of 8 years spanning 1996 through 2013)⁶.

The Alameda County District Attorney filed a response to the petition, opposing the grant of a certificate of rehabilitation for either conviction. As to the 1995 misdemeanor conviction, the prosecutor asserted defendant was not eligible for the requested relief because he had not secured a section 1203.4 dismissal of that conviction as required by section 4852.01, subdivision (c). As to the 1966 felony conviction, it wasconceded that defendant met the minimum statutory rehabilitative period to apply for a certificate of rehabilitation. However, the prosecutor argued defendant had failed to show he had truly been rehabilitated since his 1966 felony conviction as the inspector's report demonstrated that defendant had not led an exemplary life since his discharge from parole in 1971. The prosecutor also asserted that the inspector's report contained information demonstrating that defendant continued to be a threat to children, and the court was urged to deny the petition pursuant to section 4852.13, subdivision (b), which states: "No certificate of rehabilitation shall be granted to a person convicted of any offense specified in Section 290 if the court determines that the petitioner presents a continuing threat to minors of committing any of the offenses specified in Section 290."

In reply, defendant submitted a petition to dismiss the 1995 misdemeanor conviction under section 1203.4, and asked the court to consider his belated petition to dismiss, together with his request for a certificate of rehabilitation relative to that conviction. He also challenged certain information in the inspector's report and asked the court to consider certain facts demonstrating his honesty and upright living.

Following a hearing on October 22, 2014, the trial court addressed each conviction separately. First, the court denied, without prejudice, a certificate of rehabilitation relative to the 1995 misdemeanor conviction on the ground that defendant was not eligible for the requested relief because he had not secured a section 1203.4 dismissal of that conviction as required by section 4852.01, subdivision (c). The court advised defendant to refile his petition to dismiss the 1995 misdemeanor conviction under section 1203.4. Second, the court denied the petition for a certificate of rehabilitation relative to the 1966 felony conviction on the ground that defendant was eligible, but not a suitable candidate. The court explained that since defendant's 1966 felony conviction he had not lived an upright, honest life, noting in particular the nature of the 1995 misdemeanor conviction for molesting a child under the age of 18 years (§ 647.6). That later conviction "raise[d] a grave, grave doubt," which "defeat[ed]" defendant's "burden of proof that he [did not] present an actual danger to re-offend."

On October 22, 2014, the court filed a minute order denying the petition for certificates of rehabilitation and further ordered that defendant could refile his petition to dismiss the 1995 misdemeanor conviction. Defendant's timely appeal ensued.

ANALYSIS

I. Applicable Law

Generally, "the certificate of rehabilitation procedure is available to convicted felons who have successfully completed their sentences, and who have undergone an additional and sustained 'period of rehabilitation' in California. (§ 4852.03, subd. (a) [imposing general minimum requirements of five years' residence in this state, plus an additional period typically ranging between two and five years depending upon the conviction]; see §§ 4852.01, subds. (a)-(c), 4852.06.) During the period of rehabilitation, the person must display good moral character, and must behave in an honest, industrious, and law-abiding manner. (§ 4852.05; see § 4852.06.) Several provisions make clear that a person is 'ineligible to . . . petition for a certificate of rehabilitation' (§ 4852.03, subd. (b)), and that no such petition 'shall be filed' (§ 4852.06), unless and until the foregoing requirements are met. (See § 4852.01, subds. (a)-(c) [describing who 'may file' a petition].)" (Ansell, supra, 25 Cal.4th at p. 875.)

"Proceedings begin when a qualified person petitions for a certificate of rehabilitation in the superior court in the county in which he lives. (§ 4852.06; see § 4852.07 [requiring notice to the Governor and to the district attorney in the county or counties where the petition is filed and the petitioner was convicted].) . . . [¶] The superior court holds a hearing and considers testimonial and documentary evidence bearing on the petition. (§§ 4852.1, 4852.11.) To this end, the court may compel the production of judicial, correctional, and law enforcement records concerning the crimes of which petitioner was convicted, his performance in custody and on supervised release, and his conduct during the period of rehabilitation, including all violations of the law known to any peace officer. (Ibid.)" (Ansell, supra, 25 Cal.4th at p. 875.)

"[I]f 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 civiland 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. This order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation." (§ 4852.13, subd. (a).)

II. Trial Court's Denial of Petition for Certificates of Rehabilitation

A. 1995 Misdemeanor Conviction

As noted, the trial court denied, without prejudice, defendant's petition for a certificate of rehabilitation relative to the 1995 misdemeanor conviction on the ground that defendant was not statutorily eligible to apply for the requested relief. (§ 4852.01, subd. (c).) Because defendant does not challenge the court's ineligibility ruling, we do not address his argument that he was otherwise a suitable candidate for the issuance of a certificate of...