                                                                               FILED 

                                                                             June 3, 2014 

                                                                    In the Office of the Clerk of Court 

                                                                  WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                            )
                                                )         No. 31109-1-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )
HAL ROGER HARRISON aka STEVEN                   )
FREDERICK BROWN,                                )         PUBLISHED OPINION
                                                )
                      Appellant.                )

       SIDnawAY, C.J. -     Hal Harrison appeals his conviction for second degree

unlawful possession of a firearm, which was predicated on a 1987 felony conviction in

the state of California. Before trial, Mr. Harrison moved to dismiss the felon in

possession charge because the Washington statute criminalizing an ex-felon's possession

of a firearm does not apply "ifthe conviction has been the subject of a pardon,

annulment, certificate of rehabilitation, or other equivalent procedure based on a finding

of the rehabilitation of the person convicted." RCW 9.41.040(3). Mr. Harrison presented

a 1993 certificate of rehabilitation issued by a California superior court.

       The State opposed the motion, pointing out that under California law the

certificate of rehabilitation operates as a recommendation that the Governor issue a

pardon but is not sufficient in itself to restore the right to possess firearms in California.
No. 31109-1-II1
State v. Harrison


The trial court denied the motion. A jury thereafter found Mr. Harrison guilty of the

charge.

       The exception to the crime of felon in possession for a rehabilitated ex-felon does

not tum on whether his right to possess firearms has been restored in some other

jurisdiction; it turns on whether there has been a judicial finding of rehabilitation that

satisfies Washington law. The procedure required to obtain Mr. Harrison's California

certificate of rehabilitation qualifies for the exception provided by RCW 9,41.040(3).

We reverse Mr. Harrison's conviction of second degree unlawful possession of a firearm

and remand with directions to dismiss the charge.

                                         ANALYSIS

       Little discussion of the facts leading to the State's several charges filed against Mr.

Harrison in May 2011 is required. He raises only one issue on appeal: whether the trial

court erred in concluding that his certificate of rehabilitation issued under California

Penal Code § 4852. 13(a) was insufficient to support his pretrial Knapstad 1 motion to

dismiss the State's charge of second degree unlawful possession of a firearm.

       It is a crime in Washington for any person who has "previously been convicted ...

in this state or elsewhere of any felony" to possess a firearm. RCW 9,41.040(2)(a)(i).




       1 State   v. Knapstad, 107 Wn.2d 346, 729 P .2d 48 (1986).

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No. 31lO9-1-111
State v. Harrison


The statute excludes from its operation ex-felons who have been pardoned or

rehabilitated; specifically, it provides:

       A person shall not be precluded from possession of a firearm if the
       conviction has been the subject of a pardon, annulment, certificate of
       rehabilitation, or other equivalent procedure based on a finding of the
       rehabilitation of the person convicted or the conviction or disposition has
       been the subject of a pardon, annulment, or other equivalent procedure
       based on a finding of innocence.

RCW 9.41.040(3).

       It is undisputed that Mr. Harrison pleaded guilty and was convicted of felony

custodial interference in California in 1987. In support of his motion to dismiss the

State's charge of second degree unlawful possession of a firearm, however, he presented

a certificate of rehabilitation issued by a California superior court in July 1993.

       Under California law there are two different ways to acquire a pardon. The first

and oldest procedure, provided by California Penal Code § 4800, authorizes the

submission of pardon applications directly to the Governor. People v. Zeigler, 211 Cal.

App. 4th 638, 652, 149 Cal. Rptr. 3d 786 (2012) (citing People v. Ansell, 25 Cal. 4th 868,

873-74, 24 P.3d 1174, 108 Cal. Rptr. 2d 145 (2001». The second procedure was enacted

during World War II, when the Governor's office was inundated with pardon applications

received from ex-felons otherwise barred from serving in the military or working in

defense industries. [d. It is that second procedure, provided by California Penal Code

§§ 4852.01-.19, by which an ex-felon like Mr. Harrison applies for a certificate of


                                              3

No. 31109-1-111
State v. Harrison


rehabilitation from a court. The certificate of rehabilitation constitutes the court's

recommendation that the Governor grant a full pardon to the petitioner and further

constitutes an application for such a pardon. CAL. PENAL CODE § 4852. 13(a), .16.

       RCW 9.41.040 includes "certificate of rehabilitation" in itemizing procedures that

will exclude an ex-felon from the bar against possessing a firearm, but does not define the

term or suggest whether what California refers to as a "certificate of rehabilitation"

qualifies. In deciding Mr. Harrison's Knapstad motion, then, the trial court was required

to construe the scope and meaning of the statutory exception. We review its construction

de novo. State v. Masangkay, 121 Wn. App. 904, 907, 91 P.3d 140 (2004). We are aided

by several earlier Washington decisions.

       The Washington Supreme Court was first called upon to construe the types of

procedures and findings that qualify an ex-felon for the rehabilitation exception provided

by RCW 9.41.040(3) in State v. Radan, 143 Wn.2d 323,330,21 P.3d 255 (2001). In

Radan, the court pointed out that the key language in the provision ("a pardon,

annulment, certificate of rehabilitation, or other equivalent procedure based on a finding

of the rehabilitation of the person convicted") is identical to language in ER 609( c),

which governs the admissibility of criminal convictions for impeachment purposes. 2


       2 Section (c) ofER 609 provides, in its entirety: "Effect of Pardon, Annulment, or
Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if
(l) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on afinding ofthe rehabilitation of

                                              4

No. 31109-1-111
State v. Harrison


Washington's evidence rules were adopted in 1979 by our Supreme Court, which

generally patterned them after the Federal Rules of Evidence. ER 609(c) is substantially

similar to the 1972 version of Fed. R. Evid. 609( c) and tracks verbatim the key language

about pardons, annulments, certificates of rehabilitation, and their equivalents with which

we are concerned. See Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432,450, 191

P.3d 879 (2008) (Washington rules generally patterned after the federal rules).

       Advisory committee notes to Fed. R. Evid. 609(c) as proposed in 1972 identified a

finding of rehabilitation as more important than an act of clemency, explaining:

       A pardon or its equivalent granted solely for the purpose of restoring civil
       rights lost by virtue of a conviction has no relevance to an inquiry into
       character. If, however, the pardon or other proceeding is hinged upon a
       showing of rehabilitation the situation is otherwise.

56 F .R.D. 183, 271 (1973). The advisory comments to the proposed rules also pointed

out that "[a] similar provision is contained in California Evidence Code § 788." Id. The

California evidence code provision was merely similar and differed in a respect that is

important for present purposes: Section 788(b) of the California Evidence Code provided

that a defendant's credibility could be attacked by evidence of his or her conviction of a

felony unless, inter alia, "[a] certificate of rehabilitation and pardon has been granted to



the person convicted, and that person has not been convicted of a subsequent crime which
was punishable by death or imprisonment in excess of 1 year, or (2) the conviction has
been the subject of a pardon, annulment, or other equivalent procedure based on a finding
of innocence." (Emphasis added.)

                                              5
No. 31109-1·111
State v. Harrison


the witness under [Section 4852.01 and related provisions] of the Penal Code."

(Emphasis added.) The drafters' rejection of the California rule's requirement of both a

certificate of rehabilitation and pardon is consistent with the advisory comment's

emphasis on rehabilitation rather than clemency.

       Washington statutes include no procedure whereby an ex-felon can obtain a

"certificate of rehabilitation" nor do Washington courts enjoy inherent authority to adopt

a procedure for certifying rehabilitation. Masangkay, 121 Wn. App. at 910-14. 3

"Certificates of rehabilitation," as such, appear to be offered by only a handful of states.

See MARGARET LOVE & APRIL FRAZIER, CERTIFICATES OF REHABILITATION AND OTHER

FORMS OF RELIEF FROM THE COLLATERAL CONSEQUENCES OF CONVICTION: A SURVEY

OF STATE LAWS 2 (Oct. 1,2006) (identifying only six states (New York, Illinois,

Connecticut, California, Nevada, and New Jersey) as offering administrative "certificates

of rehabilitation"), available at http://meetings.abanet.org/webupload/commupload/

CR203000/otherlinks_files/convictionsurvey.pdf.

       Faced with this lack of clear meaning for "certificate of rehabilitation," Radan and

later State v. R.P.H., 173 Wn.2d 199,265 P.3d 890 (2011) have construed RCW



        3 In State v. R.P.H., 173 Wn.2d 199,203 n.3, 265 P.3d 890 (2011), the Supreme
Court pointed out that it had granted review of the appellate court's decision in
Masangkay that trial courts lack authority to issue a certificate of rehabilitation, but that it
later dismissed review on the basis the case was moot. See State v. Masangkay, 153
Wn.2d 1017, 108 P.3d 1228 (2005) (granting review).

                                               6

No. 31109-1-111
State v. Harrison


9.41.040(3) and provided guidance on the type of procedures and findings of

rehabilitation that will exempt an ex-felon from the bar on possessing firearms.

       Radan addressed the attempted prosecution of ex-felon Richard Radan for second

degree unlawful possession of a firearm. Radan had been granted an early discharge

from supervision for his felony conviction in Montana and pursuant to Montana law all of

his civil rights, including his right to possess firearms, had been automatically restored.

On the basis of the Montana restoration of rights, he successfully moved for dismissal of

the charge in the trial court. The Court of Appeals reversed and the Supreme Court

accepted review.

       On appeal, Radan asked that the Washington statute be construed like its federal

counterpart, under which all persons whose civil rights had been restored by the

jurisdiction where the crime occurred were excepted from the bar on possessing firearms.

143 Wn.2d at 333 (discussing 18 U.S.C. §§ 921 and 922). Noting "critical differences in

language between the two statutes," our Supreme Court refused to be guided by federal

law. Id. Focusing instead on the key language of the exception stated in RCW

9.41.040(3)-a "pardon, annulment, certificate of rehabilitation, or other equivalent

procedure based on a finding of the rehabilitation of the person convicted"-it held that

the exception "requires something more than an automatic restoration of an individual's

civil rights." 143 Wn.2d at 330.




                                              7

No.31109-I-III
State v. Harrison


       The court then turned to the procedure by which Radan had secured his early

discharge and concluded that it, unlike the automatic restoration of rights that followed,

did constitute an '''other equivalent procedure'" based on a "'finding of rehabilitation'"

that would qualify for the exception from RCW 9.41.040(3). Id. at 336. Montana's

statutory procedure for early discharge required a recommendation ofRadan's probation

and parole officer and a finding by the court that a conditional discharge from supervision

'''is in the best interests of the probationer and society; and ... will not present

unreasonable risk of danger to the victim of the offense.'" Id. at 334 (quoting former

MONT. CODE ANN. § 46-23-101 I (6)(a)(i) (1999». In a footnote, the court observed that

Radan could have petitioned a Washington court to have his right to possess firearms

restored and the criteria for application-'" after five or more consecutive years in the

community without being convicted or currently charged with any felony, gross

misdemeanor, or misdemeanor crimes' "~would have been "far less stringent" than that

required for conditional discharge from probation under Montana law. Id. at 335 n.2

(quoting former RCW 9.41.040(4)(b)(i) (1997».

       In R.P.H., the court held that relief granted under Washington's former statutory

procedure for relieving a person of the duty to register for a sex offense committed while

under age 15 was equivalent to a certificate of rehabilitation based on a finding of

rehabilitation for purposes of the felon in possession statute. To be relieved of the duty to

register for such a sex offense, former RCW 9A.44.140(4)(b)(ii) (2000) required that the

                                               8

No. 31109-1-111
State v. Harrison


applicant not have been adjudicated of any additional sex offenses during the 24 months

following the adjudication and that he or she "proves by a preponderance of the evidence

that future registration ... will not serve the purposes ofRCW 9A.44.130, 10.01.200,

43.43.540,46.20.187,70.48.470, and 72.09.330." A superior court had relieved R.P.H.

from the requirement to register as a sex offender applying that standard; the court

concluded that it was equivalent to a certificate of rehabilitation as a result of which

R.P.H. should not be barred from exercising the right to possess firearms.

       With these principles in mind, we tum to the California procedure under which

Mr. Harrison obtained his certificate of rehabilitation. To obtain a certificate of

rehabilitation in California, a party must petition the superior court of the county in which

he lives. CAL. PENAL CODE § 4852.06. The petition may not be effectively filed until a

period of rehabilitation following discharge from custody has passed, of at least five

years. ld. § 4852.03. "'The superior court holds a hearing and considers testimonial and

documentary evidence bearing on the petition.'" Zeigler, 211 Cal. App. 4th at 653

(quoting Ansell, 25 Cal. 4th at 875 (citing CAL. PENAL CODE §§ 4852.1, 4852.11)). "'To

enter an order known as a certificate of rehabilitation, the superior court must find that

the petitioner is both rehabilitated and fit to exercise the rights and privileges lost by

reason of his conviction.'" ld. (quoting Ansell, 25 Cal. 4th at 875-76).

       "[T]he 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. ([CAL. PENAL CODE]

                                               9

No. 31109-1-111
State v. Harrison


       §§ 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. . .. [T]here is no circumstance under which the
       statutory scheme requires or guarantees issuance of a certificate of
       rehabilitation by the superior court."

Id. at 653-54 (most alterations in original) (quoting Ansell, 25 Cal. 4th at 887-88 (citing

People v. Lockwood, 66 Cal. App. 4th 222,227-29, 77 Cal. Rptr. 2d 769 (1998); CAL.

PENAL CODE § 4852.13(a) (a certificate of rehabilitation "may" issue upon the requisite

showing of reform))).

       The parties do not dispute that a certificate of rehabilitation alone does not restore

an individual's gun rights in California; a Governor's pardon in response to the certificate

is required. See CAL. PENAL CODE § 4852.17. Love's & Frazier's earlier-cited survey of

certificates of rehabilitation and other forms of relief from collateral consequences of

conviction suggest that as of the October 1,2006 date of their manuscript, the prospect of

a gubernatorial pardon in California was remote; they reported that "California pardons

have been very rare in the past decade, and Governor Schwarzenegger has to date issued

only three." LOVE & FRAZIER, supra, at 5.

       A pardon from the Governor of California was not required. In order to receive

his 1993 certificate of rehabilitation, Mr. Harrison had to demonstrate in a hearing that he

lived an honest and upright life, conducted himself with sobriety and industry, and

exhibited a good moral character, conforming to and obeying the laws of the land. CAL.


                                             10 

No. 31109-1-III
State v. Harrison


PENAL CODE § 4852.05. This appears to be a higher standard than required to show

rehabilitation in Radan or R.P.H., and higher than the standard required to obtain

restoration of gun rights under RCW 9.41.040(4).

       We therefore hold that a California certificate of rehabilitation obtained under the

standard described qualifies as a certificate of rehabilitation under RCW 9.41.040(3).

Me. Harrison demonstrated that the charge of second degree felon in possession on or

about May 1, 2011 should have been dismissed. We reverse his conviction of this charge

and remand with instructions to dismiss it.




                                               Siddoway, C.J.

I CONCUR:


   ~<                    

Fearing,J~ 





                                              11 

                                       No. 31109-1-111


       Brown, J. (dissenting) -In my view, based on his flawed interpretation of our

law, Mr. Hal Harrison incorrectly expects Washington to reach a different result than he

could achieve in California. Considering he would end up having gun rights in

Washington when he could not get them in the state where he committed his felony, he

mistakenly suggests an anomalous result with puzzling full faith and credit implications

under the guise of distorted judicial comity reasoning.

       I agree with the State that the California certificate of rehabilitation is not an

"other equivalent procedure" permitting Mr. Harrison to possess firearms under RCW

9.41.040(3). While the certificates are similar by name in the two states, they are very

different in effect. Even Mr. Harrison recognizes California's certificate of rehabilitation

results solely in a "recommendation to the [California] governor for a pardon to restore

gun rights." Appellant's Br. at 4 (emphasis added). Thus, the California certificate of

rehabilitation is not equivalent to a Washington "pardon," "annulment," or "certificate of

rehabilitation," and is not an "other equivalent procedure" under RCW 9.41.040(3). It is

undisputed that California does not treat its certificate of rehabilitation the same as a

pardon; California does not restore gun rights based on a certificate of rehabilitation

without an executive pardon. Finally, the State correctly argues State v. Radan, 143
No. 31109-1-111- Dissent
State v. Harrison

Wn.2d 323, 21 P.3d 255 (2001), is distinguishable because Montana's early discharge

procedure restored Mr. Radan's gun rights, but the California procedure did not restore

Mr. Harrison's gun rights.

       I would hold California's rehabilitation procedures did not restore Mr. Harrison's

gun rights. Because I would affirm Mr. Harrison's unlawful possession of a firearm

conviction, I respectfully dissent.




                                          Brown, J.




                                             2

