Flores v. Dept. of Justice CA1/2 ( 2015 )

Filed 5/29/15 Flores v. Dept. of Justice CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
JOSE O. FLORES,
Plaintiff and Appellant,
v.
DEPARTMENT OF JUSTICE, A141873
Defendant and Respondent; (San Mateo County
THE PEOPLE, Super. Ct. No. SCO2037A)
Real Party in Interest and
Respondent.
Appellant Jose Flores has registered as a Penal Code section 2901 sex offender
since 1989. In 1997, Flores obtained a certificate of rehabilitation, and in 2012, he
requested that respondent Department of Justice (Department) relieve him of further
obligation to register under section 290. After the Department denied his request, Flores
petitioned the Superior Court for the County of San Mateo for a writ of administrative
mandamus directing the Department to remove him from the sex offender registry. The
court denied his petition. Flores appeals, and we reverse.
BACKGROUND
In July 1988, Flores was arrested on charges of attempted rape (§ 664/261, subd.
(2)) and assault with intent to commit rape (ibid., § 220). He pleaded no contest to the
attempted rape charge, and the second count was dismissed. On his change of plea form,
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All statutory references are to the Penal Code.
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Flores acknowledged that as a result of his plea, he “must register as a sex offender in
accordance with [section] 290 . . . .”
On January 27, 1989, the court sentenced Flores to a three-year term of felony
probation, the terms and conditions of which included eight months in county jail. Flores
was admitted to probation on March 14, 1989.
In August 1989, Flores was released from custody after serving his jail sentence.
Upon his release, he was instructed by his probation officer to register as a sex offender,
which he did for the first time on August 10, 1989.
On February 11, 1991, the court ordered Flores’s probation terminated, Flores
having fulfilled the terms of his probation and remained arrest-free. His no contest plea
was set aside, a plea of not guilty entered, and the accusatory pleading dismissed pursuant
to sections 1203.3 and 1203.4.
Flores subsequently petitioned for a certificate of rehabilitation. (§ 4852.01 et
seq.) On December 17, 1997, the trial court granted his petition. In the order granting
the petition, the trial court “recommend[ed] that the Governor of the State of California
grant [Flores] a full pardon . . . .” Despite this recommendation, by letter dated June 16,
2005, the Governor of California denied Flores’s request for a pardon.
On September 26, 2012, Flores’s counsel, Eloy Trujillo, sent a letter to the
Department requesting that it relieve Flores of his section 290 registration obligation.
Trujillo cited the following three reasons for the request: (1) under the law in effect on
December 17, 1997 (the date the trial court granted Flores a certificate of rehabilitation),
Flores’s offense qualified for relief from the obligation to register as a sex offender;
(2) the trial court did not advise Flores of the lifetime registration requirement at any time
during the trial court proceedings; and (3) Flores’s plea was based on the state of the law
at the time of his plea, at which time a grant of a certificate of rehabilitation would have
relieved him of the obligation to register as a sex offender.
In a response dated December 10, 2012, the Attorney General denied Flores’s
request. She provided the following explanation for the denial: “Under California Penal
Code section 290.5, an offender convicted of one of the enumerated offense [sic] listed in
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the statue [sic] must obtain a Governor’s Pardon to be relieved from their requirement to
register as a sex offender. Although a Certificate of Rehabilitation was granted for your
client’s criminal conviction, Mr. Flores’ application for a Governor’s Pardon was denied.
Thus, he is still required to register as a sex offender pursuant to California Penal Code
section 290, and he will remain in the California Sex Offender Registry.”
On January 15, 2013, Flores filed a petition for a writ of administrative
mandamus, seeking an order directing the Department to remove him from the sex
offender registry, based on the same three reasons he presented to the Department. The
petition was supported by two declarations, one of attorney Trujillo, the other of Flores
himself. Trujillo’s declaration primarily authenticated records submitted in support of the
petition. Flores’s declaration detailed the original trial court proceedings and his history
of registering as a sex offender. Flores also testified that at no time during the
proceedings before the trial court did his attorney, the court, or anyone else advise him
that his no contest plea would subject him to lifetime registration as a sex offender.
According to Flores, had he been made so aware, he would not have pleaded no contest
and would have, instead, proceeded to trial. Finally, Flores testified that he had “been of
good conduct, and remained arrest-free, since the time of [his] conviction,” had obtained
a bachelor’s degree and maintained continuous professional employment, owned a home,
and was married with two children.
On March 10, 2014, without holding a hearing, the trial court denied Flores’s
petition, which was unopposed by the Department.
This timely appeal followed.
DISCUSSION
On appeal, Flores contends the trial court erred in denying his petition, for two
reasons. First, he argues that he was never advised of the lifetime registration
requirement when he pleaded no contest to attempted rape. Second, under the law as it
existed at the time he received his certificate of rehabilitation, he was entitled to be
relieved of his registration obligation. The Attorney General concedes Flores’s second
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argument is meritorious.2 We review Flores’s claim de novo (Parra v. City and County
of San Francisco (2006) 144 Cal.App.4th 977, 992), and we conclude the concession is
well taken.
Section 290.5 generally provides that a person required to register as a section 290
sex offender “upon obtaining a certificate of rehabilitation . . . shall be relieved of any
future duty to register under Section 290 if he or she is not in custody, on parole, or on
probation.”3 (§ 290.5, subd. (a).) Expressly excluded from that provision, however, are
persons convicted of certain specified offenses, which offenses include attempted rape—
Flores’s offense here. (§ 290.5, subd. (a)(2)(D), (U).) Significantly, however, on
December 17, 1997—when the trial court granted Flores’s petition for a certificate of
rehabilitation—attempted rape was not statutorily excluded from offenses for which relief
from the duty to register as a sex offender was available. (See former §§ 290, subd.
(g)(2); 290.4, subd. (a)(1); 290.5.) In other words, at the time Flores obtained his
certificate of rehabilitation, a felon convicted of attempted rape could, upon obtaining
such a certificate, obtain relief from the section 290 registration obligation. Thus, the
Department should have relieved Flores from his lifetime obligation to register as a sex
offender.
In reaching a contrary conclusion, the trial court relied on Doe v. Harris (2013)
57 Cal.4th 64, 66 (Harris), but its reliance was misplaced. There, defendant pleaded no
contest to an offense that subjected him to registration under section 290. At the time, the
law provided that information concerning registered sex offenders was not available to
the public. (Former § 290, subd. (i).) The law subsequently changed with the 2004
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Despite this concession, the Attorney General concludes her respondent’s brief
by stating that the judgment should be affirmed. We assume this is a misstatement in
light of her concession.
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The eligibility for filing a petition for a certificate of rehabilitation is detailed in
section 4852.01 et seq. “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.” (People v. Ansell (2001) 25 Cal.4th 868, 875.)
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enactment of “Megan’s Law,” which provided, among other things, that the names,
addresses, and photographs of registered sex offenders would be public information.
(§ 290.46, added by Stats. 2004, ch. 745, § 1, pp. 5798–5803.) The Legislature expressly
made the law “applicable to every person described in this section, without regard to
when his or her crimes were committed or his or her duty to register pursuant to Section
290 arose, and to every offense described in this section, regardless of when it was
committed.” (§ 290.46, subd. (m).) Defendant filed a civil complaint, contending that
applying the law as amended to him violated his plea agreement. (Harris, supra, 57
Cal.4th at pp. 66–67.)
Defendant’s case reached the Supreme Court, which framed the issue before it as
follows: “whether the rule in California is that the terms of a plea agreement incorporate
existing law to the exclusion of any retroactive amendments to the law . . . .” (Harris,
supra, 57 Cal.4th at p. 69.) The court answered that question in the negative: “[T]he
general rule in California is that a plea agreement is ‘ “deemed to incorporate and
contemplate not only the existing law but the reserve power of the state to amend the law
or enact additional laws for the public good and in pursuance of public policy. . . .” ’
[Citation.] It follows, also as a general rule, that requiring the parties’ compliance with
changes in the law made retroactive to them does not violate the terms of the plea
agreement, nor does the failure of a plea agreement to reference the possibility the law
might change translate into an implied promise the defendant will be unaffected by a
change in the statutory consequences attending his or her conviction. To that extent,
then, the terms of the plea agreement can be affected by changes in the law.” (Id. at pp.
73–74.)
From this holding, the trial court here concluded that “a change in the law with
respect to registration arising from [defendant’s] conviction is applicable to him
regardless of the state of the law at the time of his conviction or at the time he obtained
his Certificate of Rehabilitation.” But the situation in Harris is distinguishable from this
case. First, and perhaps most significantly, the Legislature in Harris expressly made the
statute at issue there—section 290.46, subdivision (m)—retroactive, whereas the
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amendments to sections 290.5, 290.4, subd. (a)(1), and 290, subd. (g)(2) contain no such
provision. Harris also did not involve a certificate of rehabilitation, and the court thus
had no occasion to consider the effect of a later statutory amendment on a previously
obtained certificate. (See People v. Ansell, supra, 25 Cal.4th at p. 871 [certificate of
rehabilitation properly denied where defendant sought certificate after law was amended
to make the certificate unavailable to persons, like defendant, who had been convicted of
particular sex offenses].) In light of these distinctions, Harris does not control the
outcome here.
DISPOSITION
The order denying Flores’s petition for a writ of administrative mandamus is
reversed, and the cause is remanded to the trial court with directions to (1) set aside the
order denying the petition, (2) enter a new order granting the petition, and (3) issue a writ
of administrative mandamus directing the Department to remove defendant from the
California sex offender registry and relieve him from any further duty to register under
section 290 et seq. Flores shall recover his costs on appeal.
_________________________
Richman, Acting P.J.
We concur:
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Stewart, J.
_________________________
Miller, J.
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