Filed 2/3/16 P. v. Lincoln CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C078370

                   Plaintiff and Respondent,                                     (Super. Ct. No. 14F03908)

         v.

JAMES ROBERT LINCOLN,

                   Defendant and Appellant.




         The trial court denied defendant James Robert Lincoln’s application for a
certificate of rehabilitation and pardon (Pen. Code,1 former § 4852.01) regarding his
1990 conviction for lewd and lascivious acts with a person under the age of 14 (§ 288,
subd. (a), hereafter section 288(a)). On appeal, defendant contends the trial court abused




1   Unspecified statutory references are to the Penal Code.

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its discretion in denying the application, resulting in a miscarriage of justice. We will
affirm the judgment.
                             PROCEDURAL BACKGROUND2
       In 1990, defendant entered a plea of no contest to one count of lewd or lascivious
acts on a child under the age of 14 (§ 288(a)) in exchange for dismissal of a second count
charging violation of section 288(a). The trial court sentenced defendant to three years in
state prison.
       On June 13, 2014, defendant petitioned the trial court for a certificate of
rehabilitation and pardon regarding his section 288(a) conviction. Defendant’s petition
was filed pursuant to former section 4852.01, which provided as follows:
       “(a) Any person convicted of a felony who has been released from a state prison
or other state penal institution or agency in California, whether discharged on completion
of the term for which he or she was sentenced or released on parole prior to May 13,
1943, who has not been incarcerated in a state prison or other state penal institution or
agency since his or her release, and who presents satisfactory evidence of a three-year
residence in this state immediately prior to the filing of the petition for a certificate of
rehabilitation and pardon provided for by this chapter, may file the petition pursuant to
the provisions of this chapter.
       “(b) Any person convicted of a felony who, on May 13, 1943, was confined in a
state prison or other institution or agency to which he or she was committed and any
person convicted of a felony after that date who is committed to a state prison or other
institution or agency may file a petition for a certificate of rehabilitation and pardon
pursuant to the provisions of this chapter.




2 We do not provide a factual summary, as the record contains no factual information
regarding defendant’s underlying crimes.

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       “(c) Any person convicted of a felony or any person who is convicted of a
misdemeanor violation of any sex offense specified in Section 290, the accusatory
pleading of which has been dismissed pursuant to Section 1203.4, may file a petition for
certificate of rehabilitation and pardon pursuant to the provisions of this chapter if the
petitioner has not been incarcerated in any prison, jail, detention facility, or other penal
institution or agency since the dismissal of the accusatory pleading and is not on
probation for the commission of any other felony, and the petitioner presents satisfactory
evidence of five years residence in this state prior to the filing of the petition.
       “(d) This chapter shall not apply to persons serving a mandatory life parole,
persons committed under death sentences, persons convicted of a violation of
Section 269, subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, Section 288.7, or subdivision (j) of Section 289, or persons in military
service.
       “(e) Notwithstanding any other law, the Governor has the right to pardon a person
convicted of a violation of Section 269, subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, Section 288.7, or subdivision (j) of
Section 289, if there are extraordinary circumstances.”
       Prior to the hearing on defendant’s petition, the trial court issued its tentative
ruling denying the petition on the grounds that the petition (1) was “factually lacking”;
(2) failed to “meet th[e] criteria” set forth in the Evidence Code with respect to
presentation of evidence; (3) failed to satisfy the conditions for rehabilitation under
former section 4852.01 and section 4852.05; and (4) failed on its equal protection
challenge.
       At the hearing on defendant’s petition, the trial court stated its intention to adopt
its earlier tentative ruling denying the petition and asked defense counsel, “Any reason
that I should not adopt it?” Defense counsel responded, “I can offer no legal basis for
that, Your Honor.” The court adopted its tentative ruling and denied the petition.

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       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant contends the trial court’s denial of his petition for certificate of
rehabilitation (former § 4852.01) was an abuse of discretion that resulted in a miscarriage
of justice. Defendant’s claim is confusing and at times unintelligible, and is devoid of
analysis of the facts and the applicable law. To the extent we can discern them, we
attempt to address each of defendant’s arguments in the order presented.
       First, defendant claims the trial court “stated that the issue was addressed in the
California Assembly Bill 1438, which was filed with the Secretary of State August 25,
2014” and argues the court erroneously “believed” Assembly Bill No. 1438 (2013-2014
Reg. Sess.; hereafter Assembly Bill 1438) “eliminated the Equal Protection argument.”3
       To avoid forfeiture of his claim, defendant had the burden to support his
arguments with analysis and citation to evidence in the appellate record. (People v.
Hardy (1992) 2 Cal.4th 86, 150; People v. Galambos (2002) 104 Cal.App.4th 1147,
1159; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136.) He failed to do so
and thus forfeits the claim. We note, however, that our review of the record reveals the




3 On August 25, 2014, Assembly Bill 1438 was enacted into law and became operative
January 1, 2015. Assembly Bill 1438 amended section 3000.1, subdivision (a)(2), which
now reads: “Notwithstanding any other law, in the case of any inmate sentenced to a life
term under subdivision (b) of Section 209, if that offense was committed with the intent
to commit a specified sexual offense, Section 269 or 288.7, subdivision (c) of Section
667.51, Section 667.71 in which one or more of the victims of the offense was a child
under 14 years of age, or subdivision (j), (l), or (m) of Section 667.61, the period of
parole, if parole is granted, shall be the remainder of the inmate’s life.” (Italics added.)
(See Stats. 2014, ch. 280, § 2, eff. Jan. 1, 2015.) The Legislature also amended former
section 4852.01, subdivision (d) by adding to, and placing in numerical order, sections
269 and 288.7 to the list of offenses that disqualify persons from seeking a certificate of
rehabilitation. (Stats. 2014, ch. 280, § 3, eff. Jan 1, 2015.)

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trial court made no mention whatsoever of Assembly Bill 1438 either in its tentative
ruling or at the hearing on defendant’s petition.
       Next, defendant argues in his opening brief that he filed his petition after
publication of People v. Tirey (2014) 225 Cal.App.4th 1150 (Tirey), review granted
August 20, 2014, S219050, and cause transferred to the Court of Appeal, Fourth
Appellate District, Division Three, for reconsideration in light of Johnson v. Department
of Justice (2015) 60 Cal.4th 871 (Johnson), but before Assembly Bill 1438 was filed with
the Secretary of State. Defendant’s reply brief correctly notes that, on January 29, 2015,
the Supreme Court reversed the judgment in Johnson, overruling People v. Hofsheier
(2006) 37 Cal.4th 1185 in the process.4 Defendant argues that, because “the California
Legislature did NOT write the law to be retroactively applicable,” he is entitled to the
same relief as “the Petitioners who filed their Petitions prior to the enactment of the new
law” and who “were ultimately granted the Certificate of Rehabilitation they had
petitioned for.” Defendant further argues Assembly Bill 1438 was not in effect when he
filed his petition, thus he is eligible to receive the requested certificate of rehabilitation.
       Again, defendant’s claim is forfeited for failure to support his arguments with
analysis and citation to evidence in the appellate record (People v. Hardy, supra,
2 Cal.4th at p. 150; People v. Galambos, supra, 104 Cal.App.4th at p. 1159; People v.
Sangani, supra, 22 Cal.App.4th at pp. 1135-1136) or citation to legal authority (Cal.
Rules of Court, rule 8.204(a)(1)(B); Atchley v. City of Fresno (1984) 151 Cal.App.3d
635, 647; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is


4 The Johnson court held that, “[i]nasmuch as Johnson’s claim for relief rests entirely on
Hofsheier, we conclude, with respect to his section 288a(b)(2) conviction, that there is no
violation of his federal and state constitutional rights to equal protection of the laws in the
ongoing requirement that he register as a sex offender pursuant to section 290.”
(Johnson, supra, 60 Cal.4th at p. 888.) The court further held retroactive application was
appropriate “where, as here, a sex offender has taken no action in justifiable reliance on
the overruled decision.” (Id. at p. 889.)

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forfeited if it is raised in a perfunctory fashion without any supporting analysis and
authority].) And again, we note the trial court’s denial of defendant’s petition neither
expressly nor impliedly relies on Assembly Bill 1438. We further note that any reliance
on Tirey is improper, as that case was depublished as a result of the Supreme Court’s
grant of review. The case is not lawfully citable and will not be considered. (See Cal.
Rules of Court, rules 8.1105(e)(1) [with an exception not applicable here, “an opinion is
no longer considered published if the Supreme Court grants review”], 8.1115(a) [with
exceptions not applicable here, “an opinion of a California Court of Appeal . . . that is not
certified for publication or ordered published must not be cited or relied on by a court or
a party in any other action”].)
       Finally, defendant claims he met the criteria required for issuance of a certification
of rehabilitation in that he “lived an honest and upright life” after being released from
custody, and “has conducted himself with sobriety and industry, exhibited a good moral
character and conformed to and obeyed all the laws of the land,” as required by section
4852.05.
       To the extent this observation, made in passing and without further analysis, is
intended to constitute an argument, it must be deemed forfeited. (Cal. Rules of Court,
rule 8.204(a)(1)(B) [each point in appellate brief must be supported by citation of
authority]; Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647 [lack of authority
or analysis constitutes forfeiture].) Even assuming defendant’s offense of conviction did
not prohibit the filing of a petition for certificate of rehabilitation, defendant failed to
provide either “satisfactory evidence of a three-year residence in this state immediately
prior to the filing of the petition,” as required by section 4852.01, former subdivision (a),
or “satisfactory evidence of five years residence in this state prior to the filing of the
petition,” as required by section 4852.01, former subdivision (c), depending upon which
subdivision his petition relied.



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       In any event, defendant’s claim fails on the merits. Section 4852.01, former
subdivision (d), states, “This chapter shall not apply to . . . persons convicted of a
violation of . . . Section 288.” Having been convicted of violating section 288(a),
defendant was statutorily barred from petitioning for a certificate of rehabilitation. Thus,
the trial court did not abuse its discretion in denying defendant’s petition. (People v.
Lockwood (1998) 66 Cal.App.4th 222, 227 [trial court’s decision to deny a petition for
certificate of rehabilitation is reviewed for abuse of discretion].)
                                       DISPOSITION
       The judgment is affirmed.




                                              /s/
                                            Blease, Acting P. J.


We concur:




         /s/
       Nicholson, J.




         /s/
       Hoch, J.




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