Filed 8/28/20 P. v. Wolsey CA4/1
                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                                 DIVISION ONE
                                         STATE OF CALIFORNIA


THE PEOPLE,                                                          D075760
         Plaintiff and Respondent,
         v.                                                          (Super. Ct. No. SRD1807)
THOMAS DEVERE WOLSEY,
         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,
David M. Gill, Judge. Reversed with directions.

         Heather L. Beugen, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa
Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and
Respondent.
         In late February 2018, defendant Thomas Devere Wolsey filed a
petition for certificate of rehabilitation and pardon (petition) pursuant to

Penal Code1 section 4852.01 et seq. seeking relief from his duty to register

1     All further statutory references are to the Penal Code unless otherwise
noted.
under section 290. The registration requirement stemmed from defendant’s
December 2006 plea to one count of misdemeanor sexual battery (§ 243.4,
subd. (e)), after he was charged in 2004 with 15 counts of misdemeanor
possession of child pornography (§ 311.11, subd. (a)). In March 2011,
defendant’s conviction was dismissed pursuant to section 1203.4.
      Defendant’s petition was heard on April 5, 2019. Although defense
counsel attended the hearing, defendant—with the court’s permission—did
not. The court asked defense counsel a series of factual questions that
defendant ostensibly could have answered, then ruled to deny defendant’s
petition, finding he failed to establish by a preponderance of the evidence
that pre-petition he had continuously resided in the state for 10 years.
(§§ 4852.01, subd. (b), 4852.03, subds. (a)(1), (2) & 4852.06.)
      In making this finding, the record shows the court substantially relied
on an investigative report prepared by the People showing that defendant in
2016 and 2017 had registered businesses outside California; that in October
2017 he had registered a vehicle in Utah in connection with one of those
businesses; and that he recently had moved from Temecula, California, to
Cardiff by the Sea, California (Cardiff), after selling his Temecula home.
      Defendant appealed.
      While this appeal was pending, defendant filed a petition for writ of
mandate (D077355) (writ petition), seeking to compel the trial court to set
aside its order denying his petition, and hold a new hearing to allow him the
opportunity—with effective counsel—to establish the residency requirement;
or alternatively, requesting this court issue an order to show cause directing
the trial court to hold an evidentiary hearing on the claims raised in his writ
petition. In addition to a request for judicial notice of the record in this
appeal (see Evid. Code, §§ 452, subd. (d)(1), 453 & 459, subd. (a)), defendant


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lodged a series of exhibits in support of his writ petition that he claimed were
material to the residency requirement issue, including utility bills and
related documents showing he resided in the Cardiff home after moving from
Temecula, which exhibits should have been submitted for the court’s
consideration at the petition hearing.
      As we explain, we conclude the court abused its discretion in finding
defendant’s registration of two out-of-state businesses and a vehicle showed
he was not continuously residing in the state for 10 years pre-petition. We
further conclude the court’s finding defendant was not residing in the Cardiff
home, after selling his Temecula house, is not supported by substantial
evidence.
      Because the writ petition makes clear there was additional evidence
available to the trial court in connection with the residency issue, which is
essentially a procedural condition; and because the trial court, as opposed to
this court, is uniquely qualified to take evidence and make factual
determinations as the trier of fact; we conclude the cause should be remanded
for the trial court to consider anew—based on all available evidence,
including the exhibits defendant lodged in support of the writ petition—

whether he satisfied the 10-year statutory residency requirement.2
Reversed.




2     As such, as provided in a separate order issued in conjunction with this
opinion, we dismiss as moot defendant’s writ petition. In addition, we
express no opinion whether defendant on remand can satisfy the residency
requirement, and, if so, any of the other additional statutory conditions to
support his claim for relief.
                                         3
                               BACKGROUND
      We briefly summarize the facts leading up to defendant’s December
2006 guilty plea. A November 2004 incident report filed by a detective of the
Riverside County Sheriff’s Department noted a warrant issued in late
October 2004 for a search of defendant’s home in Temecula for “computers
and related items, which could contain images of child pornography
downloaded from the Internet.” During the search, several items were
located leading officers to conclude defendant then was teaching at a middle
school, a conclusion confirmed by the school. During the search, officers
found several expandable file folders in an office closet, which included a
membership confirmation for a website called “‘Boycock.com.’”
      A forensic examination of a computer located in defendant’s home
revealed about 551 images of male children, about 450 being consistent with
“child erotica.” There were many images of boys between six to 12 years of
age engaging “in acts of sex or simulated sexual activity”; a series of about 55
images of two boys “ages 14 to 16 engaged in oral sex and sodomy with each
other”; multiple imagines of children ages six months to three years old in
bathtubs; and multiple images of nude boys between six and eight years old
“in various bondage positions.”
      As noted, defendant pleaded guilty to one count of misdemeanor sexual
battery and agreed to register as a sex offender in exchange for the dismissal
of all other counts. Defendant was sentenced in late December 2006 to 30
days of local custody and 48 months of summary probation. Defendant
completed his 30 days in custody on January 31, 2007.




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      On February 28, 20183 defendant filed his petition, seeking relief from
his obligation to register under section 290. On August 3, 2018, the court at
an unreported hearing ordered defendant to complete and submit a “Personal
History Questionnaire” (hereinafter, questionnaire) to the district attorney’s
office, noting if defendant objected to any questions in the questionnaire he
could “skip” them and the matter would be addressed at a subsequent
hearing.
      At an unreported October 5, 2018 ex-parte hearing, the court noted it
had received defendant’s August 27, 2018 letter and based thereon, appointed
the public defender’s office to represent defendant in his petition. (See

§ 4852.08.4) The court set the hearing on the petition for January 4, 2019.
      On January 4, 2019, at defendant’s request the court continued the
petition hearing to March 15, 2019. Defendant was present at the hearing
and represented by counsel. The January 4 minute order provides that if
defendant “is out of the county counsel may appear on his behalf.” The
petition hearing was further continued to April 5 to allow the district




3    The parties agree defendant filed his petition on February 28, and not
on December 28, 2018, which is the date stamped on the petition.

4      This statute provides in part: “During the proceedings upon the
petition, the petitioner may be represented by counsel of his or her own
selection. If the petitioner does not have counsel, he or she shall be
represented by the public defender . . . .”
                                       5
attorney’s office to complete an updated court-ordered investigative report.

(See § 4852.12.5)
      As noted, defendant appeared through defense counsel at the April 5
petition hearing. The record shows the court focused almost exclusively on
the March 29, 2019 investigative report prepared by the district attorney’s
office (hereinafter, report). The court noted the report raised a “couple of
problems” with the residency requirement based on the following: defendant
in April 2016 and early October 2017, registered businesses in Colorado and
Utah, respectively; in mid-October 2017 he also registered a vehicle in Utah
and, as provided in the report, (allegedly) “gave a residence address in Saint
George, Utah”; and in August 2018, after he filed the petition, he “moved to
New Cairo, Egypt” to teach at a university, declaring that the move was a
“secondary residence,” but returned to California in December 2018.

5      This statute provides: “(a) In a proceeding for the ascertainment and
declaration of the fact of rehabilitation under this chapter, the court, upon
the filing of the application for petition of rehabilitation, may request from
the district attorney an investigation of the residence of the petitioner, the
criminal record of the petitioner as shown by the records of the Department
of Justice, any representation made to the court by the applicant, the conduct
of the petitioner during the period of rehabilitation, including all matters
mentioned in Section 4852.11, and any other information the court deems
necessary in making its determination. The district attorney shall, upon
request of the court, provide the court with a full and complete report of the
investigations. [¶] (b) In any proceeding for the ascertainment and
declaration of the fact of rehabilitation under this chapter of a person
convicted of a crime the accusatory pleading of which has been dismissed
pursuant to Section 1203.4, the district attorney, upon request of the court,
shall deliver to the court the criminal record of petitioner as shown by the
records of the Department of Justice. The district attorney may investigate
any representation made to the court by petitioner and may file with the
court a report of the investigation including all matters known to the district
attorney relating to the conduct of the petitioner, the place and duration of
residence of the petitioner during the period of rehabilitation, and all known
violations of law committed by the petitioner.”
                                        6
      Defense counsel argued that merely because defendant had registered
businesses and a vehicle in another state did not mean defendant was not
continuously residing in California, and that such businesses, in any event,
“had failed.” Regarding the vehicle registration in Utah, defense counsel
noted that the same vehicle had been parked at defendant’s home in Cardiff,
which the court confirmed in recognizing the vehicle had been seen by
investigators at that location for an “extended period of time”; that the Utah
vehicle registration form listed defendant’s Cardiff address as the “mailing
address”; and that there was no evidence defendant resided in Utah,
including at the address associated with the registered vehicle, or received
mail or paid utilities at that address.
      The court found defense counsel’s explanation regarding the Utah
vehicle registration unpersuasive. The court also found defendant’s “ties and
connections” to the Cardiff residence “slim.” As such, the court denied
defendant’s petition, finding he had failed to satisfy by a “preponderance of

the evidence” the statutory residency requirement.6
                                  DISCUSSION
      A. Statutory Overview of Certificate of Rehabilitation
      Under California law, a person convicted of a crime may request a
Governor’s pardon through two statutory avenues: (1) a pardon application
filed directly with the Governor (§ 4800 et seq.) and (2) a petition for
certificate of rehabilitation filed in the superior court (§ 4852.01 et seq.).
(People v. Ansell (2001) 25 Cal.4th 868, 871, 873–876, 890 (Ansell).) The
latter petition, if granted, becomes both an automatic application for a full


6     The court also noted, but did not decide, a “secondary issue” regarding
defendant’s compliance with the section 290 registration requirement, as
identified in the report. We thus deem it unnecessary to address in this
opinion this “secondary issue.”
                                          7
pardon by the Governor and a judicial recommendation of such. (§ 4852.16;
Ansell, at pp. 875–876, 891.) A person convicted of a crime becomes eligible
for a certificate of rehabilitation after the successful completion of his or her
sentence and the expiration of an additional period of rehabilitation.
(§§ 4852.03, subd. (a), 4852.06.) The person must show he or she is living an
“honest and upright life,” conducting “himself or herself with sobriety and
industry,” exhibiting a “good moral character,” and conforming to and
obeying the “laws of the land.” (§ 4852.05; see Ansell, at p. 875.)
      After a petition is filed, the trial court may compel the production of
documents, direct the district attorney to investigate, and hold an evidentiary
hearing. (§§ 4852.1, 4852.11, 4852.12; 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 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.”
(§ 4852.13, subd. (a).) Thus, for the petition to be granted, the court must
find the petitioner has rehabilitated. (Ansell, at pp. 875–876.)
      As relevant here, subdivision (a) of section 4852.03 provides: “The
period of rehabilitation commences upon the discharge of the petitioner from
custody due to his or her completion of the term to which he or she was
sentenced or upon his or her release on parole, postrelease community
supervision, mandatory supervision, or probation, whichever is sooner. For
purposes of this chapter, the period of rehabilitation shall constitute five
years’ residence in this state, plus a period of time determined by the
following rules: [¶] (2) An additional five years in the case of a person
convicted of committing an offense or attempted offense for which sex


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offender registration is required pursuant to Section 290 . . . .” (Italics
added.)
      Also relevant here is section 4852.06, which provides: “After the
expiration of the minimum period of rehabilitation a person who has
complied with the requirements of Section 4852.05 may file in the superior
court of the county in which he or she then resides or in which he or she was
convicted of a felony or of a crime the accusatory pleading of which was
dismissed pursuant to Section 1203.4, a petition for ascertainment and
declaration of the fact of his or her rehabilitation and of matters incident
thereto, and for a certificate of rehabilitation under this chapter. A petition
shall not be filed until and unless the petitioner has continuously resided in
this state, after leaving prison or jail, for a period of not less than five years
immediately preceding the date of filing the petition.” (Italics added.)
      Thus, under the statutory scheme, to satisfy the residency requirement
defendant was required to establish pre-petition that he had continuously
resided in the state for 10 years since he completed his 30-day jail sentence in
January 2007. (See §§ 4852.03, subd. (a)(1), (2) & 4852.06.)
      B. Standard of Review
      “Aside from the statutory interpretation questions, a petition for a
certificate of rehabilitation is addressed to the trial court’s discretion and the
exercise of that discretion will be overturned only for manifest abuse that
results in a miscarriage of justice. [Citations] ‘The standard test for
ascertaining an abuse of that discretion is whether the court’s decision
exceeded the bounds of reason.’ [Citation.]” (People v. Zeigler (2012) 211
Cal.App.4th 638, 667 (Zeigler).) A trial court’s factual findings in connection
with such an exercise of discretion are reviewed for substantial evidence.
(See People v. Lockwood (1998) 66 Cal.App.4th 222, 229 (Lockwood).)


                                         9
      “ ‘ “ ‘ “[However, t]he discretion of a trial judge is not a whimsical,
uncontrolled power, but a legal discretion, which is subject to the limitations
of legal principles governing the subject of its action, and to reversal on
appeal where no reasonable basis for the action is shown.” ’ ” ’ ” (Zeigler,
supra, 211 Cal.App.4th at p. 667.) A court abuses its discretion ”if
it applies improper criteria or makes incorrect legal assumptions. [Citation.]”
(In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497, italics omitted
(Fajota); accord In re Charlisse C. (2008) 45 Cal.4th 145, 159.) Moreover, “[i]f
the record affirmatively shows the trial court misunderstood the
proper scope of its discretion, remand to the trial court is required to permit
that court to exercise informed discretion with awareness of the full scope of
its discretion and applicable law. [Citations.]” (F.T. v. L.J. (2011) 194
Cal.App.4th 1, 26, italics omitted.)
      C. Analysis
      We conclude the court improperly relied on defendant’s registration of
out-of-state businesses in 2016 and 2017 in finding he did not satisfy the 10-
year continuous residency requirement. California, like all other states
(including Colorado and Utah, where defendant had registered his two
businesses), “has a legitimate interest in attracting out-of-state companies to
do business within the state, both to obtain tax and other revenue that such
businesses may generate for the state, and to advance the opportunity of
state residents to obtain employment and the products and services offered
by out-of-state companies.” (See McCann v. Foster Wheeler LLC (2010) 48
Cal.4th 68, 91–92.) In our view, defendant’s registration of two out-of-state
businesses has no bearing on whether he satisfied section 4852.06.
      In addition, we conclude the court also improperly relied on defendant’s
October 16, 2017, out-of-state vehicle registration in finding he did not satisfy


                                        10
section 4852.06. Defendant disclosed on the questionnaire that the legal
“owner” of the vehicle, a Ford truck, was “Cardinal West, LLC,” his
“company”; that defendant on October 6, 2017, had registered Cardinal West,
LLC as a business with the Utah Department of Commerce, had listed the
address of that business as “3143 S. 840 E.; Saint George, UT 847908659,”
and had stated the “mailing address” for the vehicle was a post office box
located in Cardiff; that an insurance company located in San Diego insured
the vehicle, with evidence of coverage attached; and that the print-out
attached to the investigator’s online business search for Cardinal West, LLC
showed “3143 S 840 STE 355[,] Saint George, UT 84790” as the company’s
“ADDRESS,” not its “residence” address. (Bold-face type in original).
      Moreover, the record shows the court relied on the representation in
the report that defendant identified his “residence” as being in Saint George,
Utah, when registering the truck, when in fact that address was the business
address of Cardinal West, LLC, as noted. The record further shows this
misinformation was key to the court’s finding on the residency requirement
issue. As such, that finding cannot stand. (See Lockwood, supra, 66
Cal.App.4th at p. 229 [applying substantial evidence standard].)
      In denying his petition, the court also relied on the fact defendant in
July 2018 had a “second” address in Cairo, Egypt, where he taught graduate-
level courses at the American University of Cairo until about December 2018.
The undisputed evidence, however, shows defendant left for Cairo after the
“expiration of the minimum period of rehabilitation” required by section
4852.06. As a matter of statutory interpretation, we independently conclude
the court incorrectly considered defendant’s teaching in Cairo in denying his
petition. (See People v. Prunty (2015) 62 Cal.4th 59, 61 [interpretation of a
statute is a question of law requiring de novo review]; see also People v. Scott


                                       11
(2014) 58 Cal.4th 1415, 1421 [noting when statutory language is clear and
unambiguous, the plain meaning of the statute controls].)
      Finally, substantial evidence does not support the court’s finding
defendant’s connection to Cardiff—beginning in June 2017 when he moved to
the area after selling his house in Temecula, to February 28, 2018, the date
he filed his petition—was “slim.” (See Lockwood, supra, 66 Cal.App.4th at
p. 229.) On the questionnaire, defendant identified the Cardiff residence as
his “Home Address.” He also included the name and address of his landlord,
who defendant also listed as a personal reference.
      Defendant also disclosed on the questionnaire that he was registered to
vote in “San Diego County, Encinitas, CA”; that on July 25, 2017, shortly
after moving from Temecula, he went to the San Diego County Sheriff’s
Department and listed his Cardiff home, which he noted was a single-family
residence, as his new section 290 registration address; and that he used the
same Cardiff address on March 15, 2018, when he fulfilled his annual
registration requirement.
      But that’s not all. The record shows when investigators’ attempted to
contact defendant at the Cardiff home in preparation of the report, they
noted defendant’s Ford truck parked outside; that in January 2018, when an
investigator met with defendant at the Cardiff residence, defendant
explained his Ford truck had Utah license plates because he owned a
business there; and that the investigator then noted defendant also owned a
2018 Ford Fusion, with California license plates, which also was parked at
the Cardiff residence. On this record, we thus conclude the court’s finding
that defendant had “slim” “ties” to the Cardiff home is not supported by
substantial evidence. (See Lockwood, supra, 66 Cal.App.4th at p. 229.)




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      As we have noted, we stop short of finding defendant satisfied the 10-
year continuous residency requirement in connection with his petition.
Instead, we remand the cause to the trial court to reconsider that issue anew.
                                DISPOSITION
      The April 5, 2019 order denying defendant’s petition for certificate of
rehabilitation is reversed and the matter is remanded for reconsideration
consistent with this opinion.


                                                          BENKE, Acting P. J.

WE CONCUR:



IRION, J.



GUERRERO, J.




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