Filed 5/25/18
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                        H043613
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. 215071)

        v.

TIMOTHY J. MILLER,

        Defendant and Appellant.


        Defendant Timothy J. Miller appeals from an order denying his petition for a
certificate of rehabilitation and pardon under Penal Code section 4852.01 et seq. As we
will explain, the trial court properly denied the petition because Miller did not reside in
California when he filed it. Penal Code section 4852.06 prohibits such a petition unless
the petitioner has resided in California for the five-year period immediately preceding the
date of filing.
                                    I.   BACKGROUND
    A. CERTIFICATES OF REHABILITATION
        A person convicted of a felony permanently loses certain rights and privileges
under California law. Among other restrictions, convicted felons are not allowed to
possess a firearm (Pen. Code, §29800, subd. (a)(1)), are disqualified from serving on a
jury (Code Civ. Proc., § 203, subd. (a)(5)), and are prohibited from holding certain jobs
(see, e.g., Gov. Code § 1029 [ineligibility for employment as a peace officer]). But a
felon can have full rights and privileges restored by obtaining a pardon from the
Governor. (Cal. Const., art. V, § 8; Pen. Code, § 4800 et seq.; Way v. Superior Court
(1977) 74 Cal.App.3d 165, 176, fn. 12 [a pardon granted after conviction removes all
penalties and disabilities and restores civil rights].)
       “During World War II, the Governor’s office was inundated with pardon
applications received from ex-felons who were otherwise barred from serving in the
military and working in defense industries.” (People v. Ansell (2001) 25 Cal.4th 868,
874.) So in 1943 the Legislature enacted Penal Code section 4852.01 et seq., which
created a procedure for persons convicted of a felony to petition the court for a
“certificate of rehabilitation.” (Stats. 1943, ch. 400, § 1, p. 1922, eff. May 13, 1943.)
Under that procedure, a felon who has been released from incarceration and demonstrated
good conduct for a specified period1 can apply to the superior court for a certificate of
rehabilitation. (Pen. Code, § 4852.01. Unspecified statutory references are to this code.)
If the court finds a petitioner meets the statutory requirements, it may issue a certificate
of rehabilitation. The certificate is sent to the Governor as an application and
recommendation for a pardon, which the Governor is authorized to grant without further
investigation. (§§ 4852.13, 4852.16.)

           1. Penal Code Section 4852.01
       This appeal arises from a felony case in which probation was granted and a county
jail term imposed. It requires us to interpret two sections of the certificate of
rehabilitation statutory scheme: 4852.01 and 4852.06. In 1955, section 4852.01 was
amended to exclude from those allowed to file a petition “persons who have served time
in county jails only.” (Stats. 1955, ch. 708, § 1, p. 1198, eff. September 7, 1955.) But in
1976, the Legislature deleted the county jail exclusion and extended eligibility to felons
who were granted probation and whose charges were later dismissed under


       1
        The original version of the statute provided that the duration of the rehabilitation
period was to be determined by the Judicial Council. The modern version specifies the
duration: five years’ residence within the state, plus an additional two to five years,
depending on the nature of the underlying crime. (Pen. Code, § 4852.03.)
                                               2
section 1203.4 (the statute which allows dismissal of a charge after successful completion
of probation). (Stats. 1976, ch. 434, § 2, p. 1111, eff. July 10, 1976.)
       The current version of section 4852.01 retains eligibility for felons granted
probation, provided their charges were dismissed under section 1203.4 and they have five
years of residence in California: “A person convicted of a felony … the accusatory
pleading of which has been dismissed pursuant to Section 1203.4, may file a certificate of
rehabilitation and pardon pursuant to the provisions of this chapter if the petitioner has
not been incarcerated in a prison, jail, detention facility, or other penal institution or
agency since the dismissal of the accusatory pleading, 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. (b).)

         2. Penal Code Section 4852.06
       Additional requirements for obtaining a certificate of rehabilitation are contained
in section 4852.06, including the one at issue here––that a petition can only be filed if the
petitioner has resided in the state, after leaving prison or jail, for the five years
immediately preceding the filing of the petition: “After the expiration of the minimum
period of rehabilitation applicable to him or her and after the termination of parole,
probation, postrelease supervision, or mandatory supervision, a person who has complied
with the requirements of Section 4852.05 [requiring good conduct] 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. A petition shall not be filed until and
unless the petitioner has continuously resided in this state, after leaving prison or jail, for
a period of not less than five years immediately preceding the date of filing the petition.”
       In 1955 (when persons who had been incarcerated in county jails were excluded
from relief), section 4852.06 did not reference probation, only parole. As part of the


                                                3
1976 amendments extending eligibility to non-prison cases, the statute was changed to
provide that a petition could be filed “in the case of persons released upon parole or
probation, after the termination of parole or probation.” (Stats. 1976, ch. 434, § 4,
p. 1112, eff. July 10, 1976 (italics added).) And in 2015, section 4852.06 was again
amended, to add the words “or jail,” making the “immediately preceding” residency
requirement applicable to persons “leaving prison or jail.” (Stats. 2015, c. 378
(A.B.1156), § 9, p. 3463, eff. Jan. 1, 2016.)
   B. UNDERLYING FACTS
       In 1987, Miller was convicted in Santa Clara County of transportation or sale of
marijuana (Health & Saf. Code, § 11360, subd. (a)), a felony. He was placed on
probation for two years and ordered to serve 60 days in county jail. By the end of 1989,
he had successfully completed probation. Ten years later, Miller moved from California
to Montana, where he remained. In 2008, he applied for and was granted relief under
section 1203.4, resulting in dismissal of the felony charge. Post-conviction dismissal of a
charge under section 1203.4 does not, however, completely restore a felon’s civil rights
in the way that a pardon does. (§ 1203.4, subds. (a)(2) and (a)(3).)
       In October 2015, while living in Montana, Miller petitioned the Santa Clara
County Superior Court for a certificate of rehabilitation and pardon. After a hearing in
March 2016, the trial court denied the petition by written order, reasoning that since
Miller lived out of state, he did not meet the requirement of section 4852.06 that he reside
in California for a five-year period immediately preceding the filing of the petition.
                                    II.   DISCUSSION
       Miller contends the trial court erred because as a felon who was granted probation
and not sentenced to prison, he is not subject to the requirement of section 4852.06 that
he live in the state for five years immediately preceding the filing of his petition. He
bases his argument on the version of section 4852.06 in effect at the time he filed his


                                                4
petition in October 2015, which described the minimum period that must immediately
precede the filing of a petition as commencing after a petitioner leaves “prison.”
        Miller alternatively argues that even under the amended version of the statute in
effect at the time the trial court acted on his petition in 2016 (which extended the
immediately preceding requirement to a petitioner leaving either prison or jail), he is still
eligible for relief because the Legislature did not intend for the “immediately preceding”
requirement to apply to probationers, but rather to felons sentenced to jail in lieu of
prison under the Criminal Justice Realignment Act of 2011 (§ 1170(h)) (Realignment
Act).
   A. STANDARD OF REVIEW
        As the underlying facts are undisputed and the appeal turns on the meaning of a
statute, we review de novo the order denying Miller’s petition. (People v. Faranso
(2015) 240 Cal.App.4th 456, 461.) We interpret the statute using our independent
judgment, without deference to the trial court’s ruling or reasoning. (Union Bank of
California v. Superior Court (2004) 115 Cal.App.4th 484, 488.)
   B. THE CURRENT VERSION OF THE STATUTE MUST BE APPLIED
        Miller seeks to avoid application of the current version of section 4852.06
(effective January 1, 2016), because it provides that “[a] petition shall not be filed until
and unless the petitioner has continuously resided in this state, after leaving prison or jail,
for a period of not less than five years immediately preceding the date of filing the
petition.” That requirement would bar him from relief given his Montana residency. He
looks instead to the version of the statute in effect at the time he filed his petition in
October 2015, which imposed the five-year residency period immediately preceding a
petition on petitioners leaving prison, lending support to Miller’s argument that the
requirement does not apply to non-prison cases.
        Miller cites no authority for the application of a previous version of the statute.
We acknowledge that no part of the Penal Code is retroactive unless expressly so
                                               5
declared. (§ 3.) But a law is said to operate retrospectively only when it “defines past
conduct as a crime, increases the punishment for such conduct, or eliminates a defense to
a criminal charge based on such conduct.” (Tapia v. Superior Court (1991)
53 Cal.3d 282, 288.) A law governing procedure to be followed in the future still
operates prospectively, even when it relates to facts existing before its enactment. (Ibid.)
The California Supreme Court has therefore held that an amendment to the statutory
procedure for obtaining a certificate of rehabilitation is not “retroactive,” even when the
amendment results in a previously eligible defendant being barred from relief. (People v.
Ansel, supra, 25 Cal.4th at p. 885.)
       The 2015 amendment to section 4852.06 changes the eligibility requirements for a
certificate of rehabilitation by applying the five-year immediately preceding residential
requirement to persons released from either “prison or jail.” Even applied to past facts,
such as Miller’s decades-old conviction and residence history, the amendment is a
procedural change operating prospectively. Its description of the category of persons
eligible to bring a petition applies to all proceedings occurring after its enactment––
including the petition in this case because it was still pending on the effective date of the
amendment. We will therefore apply the current version of section 4852.06.2
   C. THE PETITION IS BARRED BY SECTION 4852.06
       Defendant argues that the requirements in section 4852.06 do not apply to him
because he was granted probation and not sentenced to prison. Well-settled principles
govern our review. “ ‘ “Our primary task in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the
words of a statute, as the most reliable indicator of legislative intent.” ’ ” (Thompson v.


       2
         We note that the trial court appears to have applied the version of the statute that
was in effect at the time Miller filed his petition. Since our review is de novo we are
unconcerned with the trial court’s reasoning, and its application of the earlier version of
the statute is of no consequence to our decision.
                                              6
Ioane (2017) 11 Cal.App.5th 1180, 1199.) When examining the words of the statute, we
give them a plain and commonsense meaning. (People v. Scott (2014) 58 Cal.4th 1415,
1421.)
         The statutory language at issue here provides: “A petition shall not be filed until
and unless the petitioner has continuously resided in this state, after leaving prison or jail,
for a period of not less than five years immediately preceding the date of filing the
petition.” (§ 4852.06.) The word “immediately” means “without interval of time.”
(Webster’s 3d New Internat. Dict. (1993) p. 1198.) Under the plain meaning of
section 4852.06, there can be no interval of time between the minimum five years’
residency in California following release from incarceration, and the filing of a petition
for a certificate of rehabilitation. There was an interval of time––over fifteen years––
between when Miller lived in California following his incarceration and when he filed the
petition. He is therefore barred from relief by section 4852.06.
         In Miller’s view, his case is governed solely by section 4852.01, subdivision (b).
He sees that provision as sufficient to qualify him for a certificate of rehabilitation,
because it applies to felons whose accusatory pleading has been dismissed under
section 1203.4 (as his was), and it does not contain the “immediately preceding”
residency requirement. Miller is correct that nothing in section 4852.01, subdivision (b)
makes him ineligible for a certificate of rehabilitation. But a number of eligibility
requirements are found outside section 4852.01. (People v. Ansell, supra, 25 Cal.4th at
p. 875 [“Several provisions make clear that a person is ‘ineligible to ... petition for a
certificate of rehabilitation’ (§ 4852.03, subd. (b)), and that no such petition ‘shall be
filed’ (§ 4852.06), unless and until the foregoing requirements are met. (See § 4852.01,
subds. (a)–(c).)’”].) The requirement that renders Miller ineligible is found only in
section 4852.06. Miller’s position that we must read section 4852.01, subdivision (b) in
isolation, while ignoring section 4852.06, is at odds with our task of statutory
interpretation. (See Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624,
                                               7
632 [“[W]e consider the language of the entire scheme and related statutes, harmonizing
the terms when possible.”].) Indeed, section 4852.01, subdivision (b) expressly provides
that it is to be read in conjunction with the other sections contained in that chapter of the
Penal Code: “A person convicted of a felony … 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 … .” (Italics added).
       Miller urges that the Legislature did not intend the “immediately preceding”
requirement of section 4852.06 to apply to persons who were incarcerated in county
jail—despite the amended language now referencing both prison and jail—because the
words “or jail” were added only to conform the statute with the changes in law effected
by the Realignment Act [requiring that sentences for certain felonies be served in county
jail, rather than state prison]). Since he was not sentenced under the Realignment Act, he
argues that section 4852.06 does not apply to him. In support of that argument, he cites
legislative history materials for the amendment to section 4852.06. But when the plain
meaning of a statute is clear, as it is in this case, we are not at liberty to consider extrinsic
aids such as legislative history to ascertain the intent of the Legislature. (Soil v. Superior
Court (1997) 55 Cal.App.4th 872, 875.) We may do so only when the language is
ambiguous. (Ibid.) Miller does not claim that the language imposing the “immediately
preceding” requirement is ambiguous, and we do not believe it is.
       Even if we were to consider legislative history in this situation, we would still not
disregard the language of the statute itself––the most reliable indicator of what the
Legislature intended––by writing the words “or jail” out of it, as Miller’s interpretation
would require us to do. We find no indication that applying section 4852.06 to a felon
who was granted probation offends the purpose of the statutory scheme; rather, it is
entirely consistent with it. The first sentence in section 4852.06 (as amended in 1976
when the Legislature extended eligibility to non-prison cases) specifically references
probation: “After the expiration of the minimum period of rehabilitation applicable to
                                                8
him or her and after the termination of parole, probation, postrelease supervision, or
mandatory supervision … .” (Italics added). The reference to probation precludes the
possibility that the Legislature intended the requirements of that section to apply only to
persons incarcerated in prison or those sentenced under the Realignment Act, as
probationers do not fall within either category. Further, to the extent we were to consider
extrinsic sources, our interpretation is supported by an Attorney General opinion rendered
shortly after the certificate of rehabilitation statutes first went into effect. As noted by the
trial court in its order, in August 1943 the Attorney General opined that “applicants
residing out of the state, who otherwise would be eligible, cannot invoke the benefits of
the Act.” (2 Ops.Cal.Atty.Gen. 98, 101 (1943).) The Legislature is presumed to be
aware of the Attorney General’s construction of a statute, and when no corrective
measures are taken to adopt changes addressing that construction, it is likely it intended
the statute to be interpreted in the manner described in the Attorney General’s opinion.
(People v. Gjersvold (2014) 230 Cal.App.4th 746, 751.) The Legislature has been aware
for over seventy years that, in the Attorney General’s view, the certificate of
rehabilitation statutes require a person to live in California at the time of filing a petition.
It has never made any changes to correct that interpretation, or to state that the
requirement does not extend to probation cases.
       In arguing he is not subject to section 4852.06, Miller relies on People v. Jones
(1985) 176 Cal.App.3d 120, 130–131, a case that examined a certificate of rehabilitation
eligibility condition not at issue here: the requirement under what is now
section 4852.01, subdivision (b) that probationers whose charges were dismissed under
section 1203.4 may file a petition only if they have since remained free of incarceration.
That requirement applies to probationers only; no such requirement is found in the
statutory scheme for a person sentenced to prison. Confronting an equal protection
challenge, Jones held that the two relevant groups––felons who were granted probation
and obtained section 1203.4 relief, on the one hand, and those sentenced to prison, on the
                                               9
other––are not similarly situated, and there is a rational basis for the statute’s different
treatment of them.3 Miller argues the distinction between the two groups that was
recognized in Jones supports his view that section 4852.01, subdivision (b) contains the
eligibility conditions for probationers, whereas section 4852.06 applies only to prison
cases. Miller’s conclusion does not follow from his premise. Simply because the
Legislature imposed an additional eligibility requirement for probationers in section
4852.01, subdivision (b), does not mean that the “immediately preceding” residency
requirement in section 4852.06 does not apply to probationers. To the contrary, the plain
meaning of the language in section 4852.06 indicates it applies to both probation and
prison cases.
       Miller also argues that it would be reasonable for the Legislature to exclude from
the residency requirement probationers who obtained relief under section 1203.4. He
points out that those former probationers have already undergone the application process
for a section 1203.4 dismissal, a procedure involving at least some investigation into the
petitioner’s background and recent conduct, so it is logical the requirements for later
obtaining a certificate of rehabilitation should be less stringent for them. But while that
might be a reasonable policy choice for the Legislature to have made, it is not reflected in
the statute. Reading the statutory scheme as a whole leads to the conclusion that in order
to obtain a certificate of rehabilitation, a probationer must, among other things, have
received a dismissal under section 1203.4 (see section 4852.01) and have resided in
California for five years immediately preceding the petition (see section 4852.06).
       We note that though we have applied the current version of section 4852.06, the
result would likely be no different under the previous version. We must view the

       3
        The California Supreme Court recently decided People v. Chatman (2018)
4 Cal.5th 277, 290 which assumed without deciding that, contrary to the conclusion
reached in Jones, the two groups are similarly situated. Like Jones, though, the Supreme
Court found a rational basis for distinguishing between the two groups and therefore no
equal protection violation.
                                              10
statutory scheme as a whole and harmonize all its provisions with the goal of achieving
the Legislature’s intent. (Riverside County Sheriff’s Department v. Stiglitz, supra,
60 Cal.4th at p. 632.) Viewing the statutory language in context, it does not appear that
the Legislature intended to exclude probationers from the “immediately preceding”
residency requirement of section 4852.06, even before the words “or jail” were added in
2015. For many years, the certificate of rehabilitation procedure completely excluded
those, like Miller, who served time only in jail. It was not until 1976 that the relief was
extended to felons who were granted probation and obtained dismissal under section
1203.4. (Stats. 1976, ch. 434, § 2, p. 1111, eff. July 10, 1976.) When eligibility was
extended to probationers by amending section 4852.01, language was simultaneously
added to section 4852.06 to reflect the additional category of eligible felons. (Stats.
1976, ch. 434, § 4, p. 1112, eff. July 10, 1976 [amending section 4852.06 to add the
language in bold type: “[A]fter the expiration of the minimum period of rehabilitation
applicable to him (and, in the case of persons released upon parole or probation, after the
termination of parole or probation)… .” (Italics added.)].) Given the correlation of those
amendments, a plausible explanation for not concurrently updating the language of the
“immediately preceding” clause to refer to those released from jail as well as prison is
simply legislative oversight. Regardless, the question of whether the previous version of
section 4852.06 would have applied to a case where a petitioner was incarcerated in
county jail is an academic one, because the current version contains language clearly
making it applicable to both prison and jail cases.
       Miller alternatively contends that even if it applies to him, section 4852.06 does
not set forth mandatory conditions for the filing of a petition, but rather is merely a
permissive venue statute. He relies on language providing that “a person who has
complied with the [good conduct] requirements of Section 4852.05 may file in the
superior court of the county in which he or she then resides a petition … for a certificate
of rehabilitation under this chapter.” He posits that since the statute says a person may
                                             11
file a petition in his or her county of residence, its purpose is only to provide an
additional venue option for the filing of a petition. Miller is correct that the language of
the statute is permissive––but that is simply because a person who meets the described
criteria is never required to seek a certificate of rehabilitation; he or she may elect to do
so. Once a person does proceed with filing a petition, the conditions in section 4852.06
are mandatory, including the venue provision requiring filing in the county of residence.
(See People v. Ansell, supra, 25 Cal.4th at p. 875 [“Proceedings begin when a qualified
person petitions for a certificate of rehabilitation in the superior court of the county in
which he lives.”].)
       There is nothing inherently problematic about precluding out of state residents
from obtaining a certificate of rehabilitation. Although the right to travel recognized
under the United States Constitution obligates a state to treat temporary visitors without
discrimination, that “do[es] not impose a reverse obligation on a state to continue to care
for its former residents.” (People v. Parker (2006) 141 Cal.App.4th 1297, 1307.)
Further, it is permissible for California to “require a significant attachment to the state as
a condition of obtaining substantive relief in its courts.” (Id. at p. 1309.) And
conditioning the ability to petition for a certificate of rehabilitation on California
residency is not unreasonable: the trial court’s fact-finding mission when deciding
whether to grant relief includes determining if the petitioner has complied with the
requirements of living “an honest and upright life,” and exhibiting “good moral
character.” (§ 4852.05.) Ascertaining the facts relevant to that determination is
potentially more difficult if a petitioner lives out of state. (See § 4852.12 [empowering
the court to ask the district attorney to investigate “the residence of the petitioner, the
criminal record of the petitioner 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
the period of rehabilitation, … and any other information the court deems necessary in
making its determination.”].)
                                              12
       Miller urges that it is unjust to deny his petition because he has demonstrated
exemplary reform and proven himself worthy of the rewards that accompany a pardon.
But the certificate of rehabilitation procedure that he is ineligible to pursue under the
current circumstances is but one method of obtaining a gubernatorial pardon, so his out of
state residency does not necessarily prevent him from being pardoned. A direct
application to the Governor, for instance, involves no residency requirements. We do not
express an opinion on Miller’s eligibility to seek a pardon by any other available method,
as that question is not before us. We hold only that his out of state residency disqualifies
him from seeking a pardon by way of the certificate of rehabilitation procedure described
in Penal Code section 4852.01 et seq.
                                  III.    DISPOSITION
       The order denying the petition for a certificate of rehabilitation is affirmed.




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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Premo, Acting P. J.




____________________________
Mihara, J.




H043613 - People v. Miller
Trial Court:                          Santa Clara County Superior Court,
                                      Case No.: 215071

Trial Judge:                          Hon. David A. Cena
Attorneys for Plaintiff/Respondent:   Xavier Becerra
The People                             Attorney General of California
                                      Gerald A. Engler
                                       Chief Assistant Attorney General
                                      Jeffrey M. Laurence
                                       Senior Assistant Attorney General
                                      Catherine A. Rivlin
                                       Supervising Deputy Attorney General
                                      Bruce M. Slavin
                                       Deputy Attorney General
Attorneys for Defendant/Appellant:    Steve M. Defilippis
Timothy J. Miller                      Picone & Defilippis
