239 Cal. App. 4th 786
Cal. Ct. App.2015Background
- Defendant Malcolm Shepard, Sr. sought a certificate of rehabilitation under Pen. Code §4852.01 et seq. after prior felonies; the petition was filed in Feb. 2014 and opposed by the People.
- The rehabilitation statute requires a multi-year period of rehabilitation and proof of good moral character and compliance with laws.
- The probation report highlighted defendant’s 1991 forcible rape conviction and 1995 drug and weapon offenses, his long prison terms, and post-release conduct; letters and employment history supported rehabilitation.
- The trial court issued a tentative ruling denying the petition on the merits.
- A hearing was held; the record shows defendant appeared earlier with counsel, but on the hearing date record does not show involvement by defendant or counsel; defense petition was denied.
- The court concluded the petitioner waived the right to the hearing and to counsel by not participating, and affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial without participation violated due process | Shepard | Shepard | No due process violation; no evidence showed denial of a required hearing. |
| Whether petitioner’s right to counsel was violated | People | Shepard | No; petitioner waived right to counsel by not attending; public defender had represented prior to hearing. |
| Whether trial court erred by not postponing ruling for on-record waiver | People | Shepard | No duty to defer; waiver implied from absence; high rehabilitation standards remain intact. |
| Standards for rehabilitation and sufficiency of evidence | People | Shepard | Court properly applied Ansell and Blocker standards; denial affirmed. |
Key Cases Cited
- People v. Ansell, 25 Cal.4th 868 (Cal. 2001) (set forth high rehabilitation standards and scope of petition)
- Blocker v. People, 190 Cal.App.4th 438 (Cal. App. 2010) (high hurdles; discretion to deny if not rehabilitated)
- County of Mendocino v. Ted. S., 217 Cal.App.3d 1202 (Cal. App. 1990) (default-like waiver analysis in civil proceedings)
- Ted. S., 217 Cal.App.3d 1202 (Cal. App. 1990) (waiver of hearing and counsel in civil context)
- People v. Lockwood, 66 Cal.App.4th 222 (Cal. App. 1998) (potential new petition; counsel considerations)