Filed 6/23/15 P. v. Ruiz CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041121
                                                                    (Santa Clara County
          Plaintiff and Respondent,                                  Super. Ct. No. 211995)

              v.

MARVIN RICARDO RUIZ,

          Defendant and Appellant.



          Defendant Marvin Ricardo Ruiz appeals from the trial court’s denial of his petition
for a certificate of rehabilitation. On appeal, defendant contends that the denial of the
petition violated his right to equal protection of the law. As set forth below, we will
affirm.
                                                   BACKGROUND
          In 1997, defendant pleaded guilty to two counts of lewd and lascivious conduct
with a child under the age of 14, in violation of Penal Code section 288, subdivision (a).1
On December 13, 2013, defendant filed a petition for a certificate of rehabilitation
pursuant to section 4852.01. The trial court denied defendant’s petition on
April 14, 2014. In denying the petition, the trial court explained that section 4852.01,
subdivision (d) “declares that those defendants convicted of Penal Code section 288(a)

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              Subsequent unspecified statutory references are to the Penal Code.
are ineligible for certificates of rehabilitation,” and it rejected the contention that section
4852.01, subdivision (d) violated defendant’s right to equal protection of the law.
                                         DISCUSSION
       Defendant asserts that we must reverse the judgment because he was denied equal
protection of the law. Specifically, he argues that section 4852.01, subdivision (d)
violates equal protection principles because it “absolutely denies the right to petition for a
certificate of rehabilitation [to] persons convicted of violating section 288” while “those
convicted of a violation of another similar but more serious sex offense—section 288.7—
can seek a certificate of rehabilitation.” The Attorney General contends that defendant’s
claim fails because the Legislature recently amended section 4852.01 “to specifically
exclude [section] 288.7 offenders from being eligible to apply for a certificate of
rehabilitation.” Defendant has not filed a reply brief and therefore has not raised any
arguments to counter the Attorney General’s position.
       Section 4852.01 permits individuals convicted of crimes to petition for certificates
of rehabilitation. Subdivision (d) of section 4852.01, however, specifically excludes
certain classes of offenders from petitioning for certificates of rehabilitation.
       When the trial court denied defendant’s petition for a certificate of rehabilitation,
section 4852.01, subdivision (d) provided: “This chapter shall not apply to persons
serving a mandatory life parole, persons committed under death sentences, persons
convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of
Section 288a, Section 288.5, or subdivision (j) of Section 289, or persons in the military
service.” (Stats. 1997, Ch. 61, § 2, p. 407.)
       The current version of section 4852.01, subdivision (d) provides: “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

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(j) of Section 289, or persons in military service.” (Stats. 2014, Ch. 280, § 3, p. 2569,
italics added.)
       “The equal protection clause requires the law to treat those similarly situated
equally unless disparate treatment is justified.” (Griffiths v. Superior Court (2002) 96
Cal.App.4th 757, 775.) “The first prerequisite to a meritorious claim under the equal
protection clause is a showing the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.” (People v. Rajanayagam (2012)
211 Cal.App.4th 42, 53.)
       Under the current version of section 4852.01, subdivision (d), section 288
offenders and section 288.7 offenders are treated equally—both classes of offenders are
prohibited from seeking certificates of rehabilitation. In light of the amendment to
section 4852.01, subdivision (d), defendant has not established the requisite unequal
treatment for an equal protection violation. Defendant’s equal protection challenge is
mooted by the amendment to section 4852.01, subdivision (d), and we therefore must
affirm the judgment below. (See Kremens v. Bartley (1977) 431 U.S. 119, 128-129 [a
claim is moot if there is no live case or controversy, and in determining mootness a
reviewing court will “apply the law as it is now, not as it stood below”].)
                                       DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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