Filed 4/3/14 P. v. Moran CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048100

                   v.                                                  (Super. Ct. No. M14603)

GENE LOWELL MORAN,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Reversed and remanded.
                   Okorie Okorocha for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Appellant contends the trial court abused its discretion when it denied his
petition for a certificate of rehabilitation. We reverse and remand.
                                              I
                                          FACTS
              Appellant Gene Lowell Moran, born in 1961, filed a petition for a
certificate of rehabilitation on January 14, 2013. His petition lists seven past convictions.


Past Convictions
              On August 6, 1999, appellant was convicted of second degree burglary in
case No. 99CF0024 in the County of Orange. He was in the Orange County jail from
December 31, 1998 until August 31, 1999, followed by court ordered psychological
counseling. After his probation was successfully completed on August 5, 2002, he filed a
petition for relief pursuant to Penal Code, section 1203.4, which was granted on
December 3, 2012. (Unless otherwise indicated, all statutory references are to the Penal
Code.) According to his present petition, he has not been incarcerated in any prison, jail,
detention facility or other penal institution or agency after his 1203.4 petition was
granted.
              Appellant’s second most recent conviction was for petty theft with a prior
on February 1, 1999 in case No. 96CM07148, also in Orange County. He explains in his
petition that this is an approximate date as the court record has been destroyed. He says a
warrant for his arrest was discovered upon his arrest in case No. 99CF0024, and that he
pleaded guilty to a misdemeanor in exchange for time served.
              His third most recent conviction was on July 18, 1997, for petty theft with a
prior and second degree burglary in case No. 97NF0770 in Orange County. He was
incarcerated in Orange County jail and Wasco State Prison from March 17, 1997, to
November 21, 1998, when he was released on parole.



                                              2
              Appellant’s fourth most recent conviction was on September 3, 1996 for
grand theft with a theft prior and second degree burglary in case No. 96WF1476 in
Orange County. He was in the Orange County jail from July 1 to July 4, 1994, released
on bail, and rearrested on August 10, 1996 and jailed until March 1, 1997.
              The fifth most recent conviction was on August 10, 1996, for second degree
burglary in case No. 96HM05613 in Orange County. He was committed to the Orange
County jail for that offense as well as for case No. 96WF1476, and released on March 1,
1997.
              Appellant’s sixth most recent conviction was on March 2, 1996, for petty
theft in case No. 96WM03608 in Orange County. Imposition of sentence was suspended
and he was placed on probation.
              His earliest, and seventh most recent conviction, was on January 26, 1996,
for petty theft and theft in case No. 96HM00906 in Orange County. Imposition of
sentence was suspended and he was placed on probation.


Declarations Attached to Petition for Certificate of Rehabilitation
              Appellant declared that, “[d]uring the period of my rehabilitation, I have
lived an honest and upstanding life, conducted myself with sobriety and industry, and
exhibited good moral character; I have conformed to and obeyed all the laws of the land.”
He says he was diagnosed with severe clinical depression in November 1995 and a
psychiatrist placed him on the drug Effexor, and he developed “a compulsive adrenaline
rush to shoplift small value items such as compact discs and electronic equipment.” He
adds he had “the fortunate luck to get a deputy public defender named Mark Brown, who
saw that I did not belong in the system and believed he could advocate for psychological
treatment as part of an eventual plea bargain sentence.” A psychologist diagnosed him as
an “atypical theft offender.” He states he has not been arrested for 13 years, graduated
from UCI’s paralegal program and has been employed as a litigation paralegal.

                                             3
Additionally he says he has done “extensive pro bono work for the Orange County
Paralegal Association.” He also states he has maintained a residence in California since
he was released in August 1999.
              Attorney Okorie Okorocha declared appellant was discharged from his
employment with a law firm after someone conducted “an illegal background check and
illegally discriminated against him based upon learning of [appellant’s] prior civil case
Moran v. Murtaugh, Miller, Meyer & Nelson LLP.”1 Okorocha further states: “I wish
that all of my clients in my criminal law practice were as inclined as Mr. Moran has been
to get back up where he had fallen down, and once again contribute to society in a
positive way.”
              A self-described paralegal and peer of appellant, Michelle Manu, declares:
“I first became aware of Mr. Moran’s prior legal problems when I received an
anonymous letter as an [Orange County Paralegal Association] Board Member attaching
a copy of the case of Moran v. Murtaugh, Miller, Meyer & Nelson LLP from an
individual who was advocating that because of the criminal history information disclosed


  1            An opinion from this court, Moran v. Murtaugh, Miller, Meyer & Nelson,
LLP (Jan. 31, 2005, G033102) previously partially published and superseded by the
California Supreme Court’s grant of review states appellant is a vexatious litigant, and
the first paragraph of facts reads: “Murtaugh hired Moran for an at-will position as a
paralegal on April 2, 2003. Because Moran would be privy to client confidences, he was
required to sign a confidentiality statement. On April 3, 2003, after a discussion with
Moran, firm associate David Davidson conducted a computerized legal database search
that turned up three unpublished appellate opinions in which Moran was a party. The
three cases, all civil suits, revealed that Moran had suffered several felony convictions,
including grand theft, second degree burglary, and theft with a prior conviction. In one of
the cases, Moran sued the City of Brea, its police department, a mall owner, a store
owner, and several officials and individuals for allegedly violating his civil rights when
he was arrested for commercial burglary at Brea Mall.”
               In Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780,
the Supreme Court held that a trial court was empowered to weigh evidence presented on
a security motion to determine whether a vexatious litigant has a reasonable probability
of success.

                                             4
in this case, that Moran should be disenfranchised from his pro-bono work and
membership with the OCPA.” Manu also states: “Because Mr. Moran had never
violated any rules of the OCPA and there was no preclusion to Mr. Moran being a
member of the OCPA, his official status of the organization did not change, and he has
been a productive and welcomed member providing pro bono assistance to the
organization since 2004.”
              Evan Blair, a member of the California State Bar, declares he has been a
friend of appellant for over 20 years. He says he was appellant’s attorney in his
employment case. Among other things, Blair states: “Unfortunately, because Mr. Moran
had filed and ultimately dismissed other civil cases, or failed to litigate his own pro per
civil cases well, it gave these defendants the ability to exploit the CCP section 391.1
vexatious litigant statute and prevent the merits of Mr. Moran’s case from ever being
reached. . . .” “. . . [T]here has been an unanticipated number of Internet postings of the
case opinion and law firms making statements about the case to promote their own law
practices. Because of some law firms desire to exploit a loophole in the employee
background check law by performing www.Google.com or other popular Internet search
engine searches on Mr. Moran and then declining to interview or hire him, he is being
unlawfully discriminated against in obtaining employment opportunities as a
paralegal. . . .” [¶] . . . [¶] “Based upon my unique perspective of knowing and observing
Mr. Moran through the entire scope of the past 21 years, I truly believe that Mr. Moran is
fully rehabilitated and can continue to contribute to society in a positive way.”
              Jerome Wilhoit states he is a personal friend of appellant and has known
him since they were roommates in the late 1980’s. He also states: “I also have observed
that Mr. Moran is an incredibly resilient person with a strong character and sense of
morality, and further, that he has channeled all his energies subsequent to his
incarceration into bettering himself with counseling and education, and, additionally,
using his abilities to help others, even when it involves selfless personal sacrifice.”

                                              5
Doctor’s Report
              Attached to appellant’s petition is a report by Jose L. Moral, M.D., a
diplomate of the American Board of Psychiatry & Neurology. Moral opines in the report
that, when appellant committed the offenses, he “was in a significantly depressed state.”
The doctor also stated appellant was suffering from a chronic psychiatric condition, and
that the condition was a significant element in his mental state when he committed the
offenses.


Notice of Petition
              Appellant served a notice of his petition as well as the date and time of the
hearing to the district attorney, as well as to the Governor.


The People’s Response
              The People filed a written brief. The brief says it’s a response. It does not
say it’s an opposition. It further states it is submitted “to assist the court in exercising its
discretion in this matter.” Attached to their papers are numerous court documents and
police reports relating to appellant’s numerous convictions.


The Hearing
              On March 1, 2013, the court asked if either counsel wanted to argue.
Neither did. The court stated only: “Motion is denied.”


Request for Statement of Decision
              On April 9, 2013, appellant filed a written request for statement of decision
pursuant to Code of Civil Procedure section 632 and California Rules of Court, rule
3.1590. By minute order, the court denied the request without explanation the next day.



                                                6
                                               II
                                        DISCUSSION
              In his brief, appellant contends that “no amount of evidence of
rehabilitation will result in a successful petition.” He argues “the method used by the
Orange County Superior Court is manifestly a rubber-stamp denial process.” According
to appellant, the trial court abused its discretion in denying his petition.
              In the respondent’s brief, the Attorney General tells us that appellant’s two
previous petitions for certificates of rehabilitation were denied. Respondent adds the trial
court “was in the best position to evaluate appellant’s rehabilitation, based on the
extensive documentation provided to the court,” and asks us to affirm the judgment.
              “[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. This order shall be filed with the clerk of the court, and shall be
known as a certificate of rehabilitation.” (§ 4852.13, subd. (a).)
              “The clerk of the court shall immediately transmit certified copies of the
certificate of rehabilitation to the Governor, to the Board of Prison Terms and the
Department of Justice, and, in the case of persons twice convicted of a felony, to the
Supreme Court.” (§ 4852.14.)
              “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.)



                                               7
              “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.” (§
4852.01, subd. (c).)
              “The person shall live an honest and upright life, shall conduct himself or
herself with sobriety and industry, shall exhibit a good moral character, and shall
conform to and obey the laws of the land.” (§ 4852.05.)
              “[A]fter the expiration of the minimum period of rehabilitation applicable
to him or her (and, in the case of persons released upon parole or probation, after the
termination of parole or probation), each 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 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.
No petition shall be filed until and unless the petitioner has continuously resided in this
state, after leaving prison, for a period of not less than five years immediately preceding
the date of filing the petition.” (§ 4852.06.)
              “The petitioner shall give notice of the filing of the petition to the district
attorney of the county in which the petition is filed, to the district attorney of each county
in which the petitioner was convicted of a felony or of a crime the accusatory pleading of
which was dismissed pursuant to Section 1203.4, and to the office of the Governor,
together with notice of the time of the hearing of the petition, at least 30 days prior to the
date set for such hearing.” (§ 4852.07.)

                                                 8
              “[T]he 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 petition 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
his period of rehabilitation . . . and any other information the court may deem necessary
in making its determination. If so requested, the district attorney shall provide the court
with a full and complete report of such investigations.” (§ 4852.12, subd. (a).)
              “At the outset, we reject the suggestion that absent section 4852.01(d), a
certificate of rehabilitation is necessarily available to any convicted felon who claims to
meet the minimum statutory requirements and is otherwise eligible to apply. As we have
explained, the superior court conducts a thorough inquiry into the applicant’s conduct and
character from the time of the underlying crimes through the time of the certificate of
rehabilitation proceeding. (§§ 4852.1-4852.12.) The standards for determining whether
rehabilitation has occurred are high. (§§ 4852.05, 4852.13(a); see §§ 4852.11,
4852.13(b).) The decision whether to grant relief based on the evidence is discretionary
in nature.” (People v. Ansell (2001) 25 Cal.4th 868, 887.)
              “When the trial court grants a petition for a certificate of rehabilitation it is
‘essentially making a personal representation to the Governor that [the petitioner is]
worthy of a pardon.’ [Citation.]” (People v. Zeigler (2012) 211 Cal.App.4th 638, 668.)
“[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.]” (Id. at p. 667.)
              “‘“The 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. [Citation.]’” [Citation.]” (People v. Jacobs (2007) 156 Cal.App.4th 728, 737.)
“Perhaps the court did have a sound rationale, but we simply cannot reach this conclusion

                                               9
based on the order and the reporter’s transcript of the court’s decision. The decision is
therefore subject to reversal.” (Moran v. Oso Valley Greenbelt Assn. (2001) 92
Cal.App.4th 156, 161.) It is well established that “[a] trial court’s failure to exercise
discretion is itself an abuse of discretion . . . .” (In re Marriage of Gray (2007) 155
Cal.App.4th 504, 515.)
              Here appellant’s evidence meets all the statutory requirements. The district
attorney provided the court with ample documentation, but did not oppose the petition.
Even the Attorney General states in its respondent’s brief that appellant “appears to have
met the statutory requirements for a certificate of rehabilitation.” We can find no
reasonable basis for the trial court’s decision. After reviewing the totality of the
circumstances in the record before us, we find significant evidence appellant was
mentally ill at the time of his crime spree, and has since received treatment and reformed
himself. We conclude the trial court’s decision amounts to a miscarriage of justice.


Motion on Appeal
              Appellant filed a motion in this court entitled: “APPELLANT’S MOTION
TO PROCEED ANONYMOUSLY UNDER A PSEUDONYM OR BY INITIALS
ONLY FOR PURPOSES OF THE DISPOSITION OPINION, OR IN THE
ALTERNATIVE, FOR AN ORDER TO THE CLERK AND THE JUDICIAL
COUNCIL TO NOT POST THE OPINION ON THE INTERNET.” Respondent filed no
opposition to the motion. Appellant’s motion discusses his travails as a result of public
access to information about his previous dealings with the court. While we can
understand his distress, public access to court processes far exceeds his concerns. His
motion is denied.
              Court records involve the public’s right to access under the First
Amendment. (Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 422.) “[T]he
sittings of every court shall be public.” (Code of Civ. Proc. § 124.) “The court may

                                              10
order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1)
There exists an overriding interest that overcomes the right of public access to the record;
[¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial
probability exists that the overriding interest will be prejudiced if the record is not sealed;
[¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means
exist to achieve the overriding interest.” (California Rules of Court, rule 2.550(d).)
                                              III
                                       DISPOSITION
              The judgment is reversed, and appellant’s motion is denied. The matter is
remanded to the trial court with directions to grant appellant a certificate of rehabilitation.



                                                    MOORE, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




                                              11
