Filed 7/29/15 P. v. Hemati 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
                                                                     G050071
     Plaintiff and Respondent,
                                                                     (Super. Ct. No. M15269)
         v.
                                                                     OPINION
HOOTAN HEMATI,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
M. King, Judge. Affirmed.
                   Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              Defendant Hootan Hemati appeals from the court’s denial of his petition for
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a certificate of rehabilitation and pardon. (Pen. Code, § 4852.01 et seq.) We affirm the
order. Because defendant was convicted of driving under the influence of marijuana
during his rehabilitation period, the court did not abuse its discretion by denying his
petition.


                                          FACTS


Defendant’s Petition for Rehabilitation and Pardon
              On January 31, 2014, defendant filed a petition for a certificate of
rehabilitation and pardon (the 2014 rehabilitation petition), stating he had suffered (1) a
2005 conviction of commercial burglary for which he was committed to prison and then
released on parole in 2006; (2) a 2004 conviction of commercial burglary for which he
was placed on probation; and (3) two 2003 convictions for possessing controlled
substances for sale for which he was placed on probation.
              Defendant attached his apology letter (addressed to the Orange County
District Attorney, among others), in which he stated the following. When he was a
community college student, he became addicted to drugs, “which was a main contributor
to [his] convictions for crimes of moral turpitude.” He transferred to the University of
California, Riverside, where he earned a 3.4 grade point average by the time he graduated
in 2009. One week before his graduation ceremony in May 2009, after a party thrown for
him by his friends for his upcoming graduation, he was stopped close to his house and
arrested for driving under the influence of marijuana. “By seeking therapy, going to DUI
treatment classes, and hearing the personal accounts of many[, he had] come to the

1
             All statutory references are to the Penal Code unless otherwise stated.
             The court’s denial of defendant’s petition is appealable as an appeal from a
final judgment. (See People v. Ansell (2001) 25 Cal.4th 868, 880, 893.)

                                              2
realization that there is no excuse for driving under the influence and [he was] deeply
saddened and sorry for [his] actions.” Defendant had subsequently received a law degree
from Cardiff Law School in the United Kingdom and had been admitted to the Master of
Laws program at Chapman University, School of Law (Chapman).
              Defendant also attached many letters of recommendation from professors at
Chapman, Cardiff University Law School, and the University of California, Riverside.
One Chapman law school professor stated that, from what the professor had seen, he
believed defendant was “truly rehabilitated since 2005.” Another Chapman law school
professor stated defendant “takes full responsibility for his [criminal] conduct and . . . has
been highly responsible ever since in pursuing a path of not only rehabilitation, but
commendable achievement.” Defendant also attached his 2014 Master of Laws degree
from Chapman.


The District Attorney’s Opposition to the 2014 Rehabilitation Petition
              The district attorney opposed defendant’s 2014 rehabilitation petition
because of defendant’s 2010 misdemeanor conviction for driving under the influence and
because the letters attached to his petition seemed “to attest more to his academic ability
than his moral character and the issue of his rehabilitation.”
              The opposition revealed the following details of defendant’s criminal
record. In May 2002, he had been placed on probation for three years for committing
petty theft. (§§ 484, 488.)
              In July 2003, he pleaded guilty to having possessed for sale both marijuana
(Health & Saf. Code, § 11359) and concentrated cannabis (Health & Saf. Code, § 11357).
He was placed on probation for three years.
              In February 2004, he pleaded guilty to burglary (§§ 459, 460, subd. (b)),
after he went into a Costco store and tried to return an unpurchased Sony PlayStation 2



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for a refund, using a receipt from a prior purchase. He was placed on probation for three
years.
              In January 2005, he pleaded guilty to burglary (§§ 459, 460, subd. (b)),
after an October 2004 incident where he went into a Ralph’s grocery store and tried to
return unpurchased items for a refund, using a discarded receipt he had found outside.
He was sentenced to a two-year prison term which was suspended, and he was placed on
probation for three years. In May 2005, he admitted a probation violation, and his two-
year prison sentence was executed.
              On May 24, 2009, he was arrested for driving under the influence. (Veh.
Code, § 23152, subd. (a).) On June 10, 2010, he was convicted of the misdemeanor and
placed on probation for three years.
              In September 2010, defendant moved to expunge his prior convictions
pursuant to section 1203.4, under which a court, “in its discretion and the interests of
justice, [may] dismiss the accusations or information against the defendant” and, with
statutorily specified exceptions, the defendant is thereafter “released from all penalties
and disabilities resulting from [the] offense . . . .” (§ 1203.4, subd. (a)(1).) The court
dismissed the 2003 marijuana and cannabis possession convictions, the 2004 Costco
burglary conviction, and the 2009 driving under the influence conviction, but not the
2005 Ralph’s grocery store burglary conviction.
              In August 2012, defendant filed a petition for rehabilitation which was
heard and denied in September 2012. The record contains no further details about the
denial of defendant’s 2012 petition.


The Hearing and the Court’s Ruling
              At the April 11, 2014 hearing on the 2014 rehabilitation petition, defense
counsel argued defendant’s driving under the influence conviction “was not the
traditional D.U.I.”: “There was no alcohol involved. It occurred after [defendant] had

                                              4
graduated from U.C. Riverside and attended a graduation party. He had been there until
3:00 in the morning, hadn’t been sleeping, and decided to drive home. The officer
thought that he was swerving and pulled him over, had him do tests, et cetera.”
Defendant completed a three-month treatment program. He had been a medical
marijuana patient since 2004. He voluntarily completed 45 hours of community service
(instead of paying a fine) and 18 sessions of therapy.
              The court made the following findings. Defendant was released on parole
in 2006. His seven-year period of rehabilitation ended in 2013. He was convicted in
2010 “for conduct occurring in 2009, in the middle of the period of rehabilitation. It thus
does not appear that [he] lived an honest and upright life, conducted himself with sobriety
and industry, exhibited good moral character, and conformed to and obeyed the laws of
the land during his rehabilitation period,” as required under section 4852.05. Based on
the 2010 conviction and the district attorney’s opposition to defendant’s rehabilitation
petition on that basis, the court denied defendant’s 2014 rehabilitation petition without
prejudice.


                                       DISCUSSION

The Court Did Not Abuse Its Discretion When It Denied Defendant’s 2014 Rehabilitation
Petition
              Defendant contends the court abused its discretion by denying his 2014
rehabilitation petition.
              “With certain exceptions . . . , the certificate of rehabilitation procedure is
available to convicted felons who have successfully completed their sentences, and who
have undergone an additional and sustained ‘period of rehabilitation’ in California.
(§ 4852.03, subd. (a) [imposing general minimum requirement of five years’ residence in
this state, plus an additional period typically ranging between two and five years



                                              5
depending upon the conviction].” (People v. Ansell, supra, 25 Cal.4th at p. 875.) A
person may petition for a certificate of rehabilitation only after the rehabilitation period
has passed. (§ 4852.03, subd. (b).) During the rehabilitation period, “[a] 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; People v. Lockwood (1998) 66 Cal.App.4th 222, 228; People v.
Zeigler (2012) 211 Cal.App.4th 638, 652.) If, after a hearing, the court finds the
petitioner’s course of conduct shows he or she is rehabilitated and fit “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.” (§ 4852.13, subd. (a).) Section 4852.13 “gives courts the express
discretion to decide whether a petitioner has demonstrated to its satisfaction” the
petitioner’s rehabilitation and fitness. (Lockwood, at p. 228).) “The standards for
determining whether rehabilitation has occurred are high.” (Zeigler, at pp. 653-654.)
“[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 p. 654.) If the
court receives “satisfactory proof” that the petitioner has violated a law during the
rehabilitation period, “the court may deny the petition and determine a new period of
rehabilitation not to exceed the original period of rehabilitation for the same crime.”
               2
(§ 4852.11.)




2
                In his reply brief, defendant requests this court to define the period in which
he can reapply pursuant to section 4852.11, an issue discussed in People v. Failla (2006)
140 Cal.App.4th 1514, 1522. That issue is not before us at the present time, however.
(People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [reviewing court does
not issue advisory opinions]). Furthermore, defendant does not challenge the trial court’s
ruling in this respect. Moreover, we do not address arguments raised in the reply brief.
(Provost v. Regents of Univesity of California (2011) 201 Cal.App.4th 1289, 1295.)

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                 Here, defendant was convicted of driving under the influence of
marijuana during his rehabilitation period. On appeal he argues that “driving while
sleepy” does not demonstrate an intent “to violate any law or to be of bad moral
character.” He further argues he has a prescription for medical marijuana and that a
“positive test for marijuana merely indicates the person has used marijuana sometime in
the past 90 days.” Nonetheless, the record supports a finding defendant was driving
unsafely and showed signs of being under the influence when he was stopped by an
officer in the 2009 incident. A court may deny a rehabilitation petition for violating “any
laws during the rehabilitation period.” (People v. Zeigler, supra, 211 Cal.App.4th at p.
654, italics added.) The court did not abuse its discretion by denying defendant’s 2014
rehabilitation petition.


                                     DISPOSITION


              The judgment is affirmed.




                                                 IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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