Filed 5/4/15 P. v. Jackson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C076845

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F01397)

         v.

WILBERT EARL JACKSON,

                   Defendant and Appellant.




         Defendant Wilbert Earl Jackson appeals from the trial court’s denial of his petition
for a certificate of rehabilitation (Pen. Code, § 4852.01)1 from the crime of lewd and
lascivious acts with a child under 14 (§ 288, subd. (a)). He contends the denial of his
petition was an abuse of discretion.
         We affirm.




1 Undesignated statutory references are to the Penal Code at the time of the charged
offense.

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                  FACTUAL AND PROCEDURAL BACKGROUND
                                          The Crime
       In 1985, defendant pleaded no contest to violating section 288, subdivision (a),
lewd and lascivious acts on a child under 14. His daughter was the victim. He was
sentenced to serve eight years in state prison. According to defendant’s petition, he was
discharged from parole in September 1989.
                                         The Motion
       Defendant, age 68, filed a petition for a certificate of rehabilitation on March 18,
2013. Attached to the petition were photocopies of: (1) People v. Tuck (2012)
204 Cal.App.4th 724, 726-742, in which the court indicated a possible equal protection
problem regarding the statutory provision making people convicted of section 288,
subdivision (a), ineligible for a certificate of rehabilitation; (2) a psychiatric evaluation;
and (3) a letter from defendant’s pastor. No other evidence was submitted by defendant.
                                   Psychiatric Evaluation
       The evaluation was performed on November 30, 2012. The psychiatrist noted the
“[p]atient reports that at this time he did not understand the ramifications of pleading no
contest and reports that that was what he was advised to do by the public defender and he
did not have money for an alternative legal opinion.” Regarding the offense, the
psychiatrist wrote, “In 1985 patient reports having family stressors and going through
stressors in regards to his wife.” Defendant told the psychiatrist his wife was leaving the
house and not coming back, showing little care in their marriage or his three children, and
eventually leaving him. Defendant reported that the children were later taken away from
him based on an anonymous report that he was an “ ‘unfit father.’ ” He then went
through the legal process, but did not understand the plea and did not have a fair trial.
       The psychiatrist observed that defendant “describes past history in a manner that
appears that he did not do any sexual acts to children, but when asked explicitly he does
admit to ‘just touching and kissing and lying in bed with my daughter.’ ” Defendant told

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the psychiatrist he had “bad boundaries” with his daughter and that he was in a difficult
and stressful time in which he was holding down two jobs. Defendant understood this
was wrong and admitted to “fondling his youngest daughter and allowing her to sleep in a
bed with him when she was eight years old.” Defendant told the psychiatrist that
“contributors to his inappropriate acts were not having other appropriate female figures
around, such as his wife.” His attorney “advised him to not make any claims about
innocence as it will possibly ‘have a ripple effect that the judge would not look kindly
on,’ ” and that he no longer had to “answer to those charges because I served my time.”
       The psychiatrist wrote that defendant appeared to be “guarded” during the
interview, and speculated this may have been “due to the circumstances of the assessment
as well as the contents of the assessment due to embarrassment and shame.” The
psychiatrist concluded that “[b]ased on limited collateral information” defendant did not
appear to meet any criteria for antisocial personality disorder or “overt pedophilia based
on what he is willing to discuss.”
       However, the psychiatrist expressly noted that no records about the commitment
offense were provided to the psychiatrist and that the evaluation was based solely on
statements made by defendant and his subjective report about the offense. The
psychiatrist further wrote, “Please take this into consideration when evaluating the report.
Encourage comparison with collateral information to verify accuracy of assessment based
on current available information.”
                                     Pastor’s Letter
       The letter, dated September 10, 2012, stated that the pastor first met defendant in
2006 at his work place, an Enterprise car rental in Elk Grove. The pastor noted
defendant’s “abiding faith,” his “determination to better himself,” and his “tenacious
work ethics [sic] and trustworthiness.” The pastor was “confident” that defendant “has
risen beyond his past” and found him “a new man, filled with confidence, perseverance,
and honesty.” The letter concluded by stating that defendant is an asset to the community

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and asked the trial court to consider defendant’s “personal achievements and allow him to
continue to build and reestablish his life and be a positive example for his family.”
                                 The Trial Court’s Ruling
       Without reaching the constitutionality of the eligibility prohibition set forth in
section 4852.01, subdivision (d), the court denied the petition on the merits. In
explaining its denial, the court stated “[defendant’s] petition is bereft of sufficient
evidence to meet his burden of proof. [Fn. omitted.] Simply put, the alienist’s
submission is mixed and reflects little circumspection by the petitioner re his
commitment offense—indeed it would appear that his commitment was the result of
persuasion from his public defender. And, as it pertains to his pastor’s letter, it not only
lacks the gravity of a declaration of perjury but also any evident awareness from the
scrivener of petitioner’s commitment offense. [Fn. omitted.] Mindful that the standards
for determining whether rehabilitation has occurred are high, petitioner’s submission on
the merits is lacking.” Having denied defendant’s petition on the merits, the trial court
declined to address defendant’s constitutional contention.
                                       DISCUSSION
       Defendant contends the denial of his petition for rehabilitation was an abuse of
discretion. We disagree.
       Section 4852.01, subdivision (a), provides a means by which a person convicted of
a felony can petition for a certificate of rehabilitation. “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.” (§ 4852.01,

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subd. (a).) To obtain a certificate of rehabilitation, “[t]he 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.)
For crimes not otherwise specified, the defendant must be rehabilitated for seven years
before filing the petition. (§ 4852.03, subd. (a)(3).)
       Our Supreme Court has made it clear that a certificate of rehabilitation is not
necessarily available to every convicted felon who claims to meet the minimum statutory
requirements and is otherwise eligible to apply, and the standards for determining
whether rehabilitation has occurred are high. (People v. Ansell (2001) 25 Cal.4th 868,
887-888.) “The decision whether to grant relief based on the evidence is discretionary in
nature. [Citation.]” (Id. at p. 887.)
       Defendant contends the trial court erred in finding the pastor’s letter was less
worthy of consideration because it was not made under penalty of perjury and because
the pastor did not state an awareness of defendant’s prior conviction. According to
defendant, finding that he was not rehabilitated on this basis is a “manifest abuse of
discretion.”
       The trial court correctly placed the burden of proof on defendant and ruled that the
meager evidence submitted with the petition did not satisfy defendant’s burden of
proving he satisfied the standard set forth in section 4852.05. It was not an error for the
trial court to note that the pastor’s letter lacked context, namely the serious felony for
which defendant had been convicted, molesting his young daughter. As for the
psychiatric report, the trial court could reasonably conclude that the evaluation, which
notes defendant’s minimizing of the offense and his culpability, is evidence that




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defendant has not rehabilitated. It was not an abuse of discretion to deny the petition
based on this evidence.2
                                       DISPOSITION
       The judgment is affirmed.



                                                          MURRAY                 , J.



We concur:



      NICHOLSON              , Acting P. J.



      ROBIE                  , J.




2   We also note that defendant is statutorily ineligible to file a petition for rehabilitation.
(See § 4852.01, subd. (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 288, . . . .”].) The constitutionality of this provision is currently before the
California Supreme Court. (See People v. Tirey (2014) 225 Cal.App.4th 1150, 1154
(review granted Aug. 22, 2014, S219050) [holding that applying ineligibility to defendant
convicted under section 288, subdivision (a), violates equal protection because
defendants convicted under section 288.7 are eligible for rehabilitation].) Since we
affirm the trial court’s finding that defendant did not meet his burden of proving
rehabilitation, we need not address the constitutionality of section 4852.01,
subdivision (d). (See Lyng v. Northwest Indian Cemetery Protective Assn. (1988) 485
U.S. 439, 445 [99 L.Ed.2d 534, 544] [“A fundamental and long-standing principle of
judicial restraint requires that courts avoid reaching constitutional questions in advance of
the necessity of deciding them.”]; see also Santa Clara County Local Transportation
Authority v. Guardino (1995) 11 Cal.4th 220, 230-231 [same].)

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