Metropolitan News-Enterprise


Monday, December 3, 2012


Page 1


Court Clarifies Rule on Certificate of Rehabilitation


By JACKIE FUCHS, Staff Writer


In deciding whether to grant a petition for a certificate of rehabilitation, a court may consider evidence leading to the petitioner’s conviction for nonviolent drug possession, even if the conviction has been dismissed following a Proposition 36 drug treatment program, the Sixth District Court of Appeal held Friday.

The court, in a unanimous judgment, held that Santa Clara Superior Court Judge Socrates Peter Manoukian abused his discretion when he granted a certificate of rehabilitation to Mitchell Lewis Zeigler, who was convicted in 1989 of two felony counts of transportation or sale of narcotics, and again in 2000 for possession of a controlled substance.

In 2007, just over seven years after his release from custody, Zeigler petitioned the court for a certificate of rehabilitation regarding his 1989 and 2000 convictions. Obtaining the certificate is, by statute, an optional preliminary step in applying for a gubernatorial pardon.

At the hearing, however, defense counsel withdrew the petition because Zeigler had been arrested and charged with a new nonviolent drug possession offense.

Zeigler was found eligible for probation in connection with this new offense under Proposition 36, a voter-approved initiative measure that mandates probation and diversion to drug treatment for offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance.

The defendant successfully completed his treatment program in 2009 and his conviction set aside and the case dismissed, as provided for by the initiative.

Zeigler renewed his petition for a certificate of rehabilitation regarding his 1989 and 2000 convictions, arguing that since his later conviction had been dismissed pursuant to Proposition 36, the seven-year period of rehabilitation began to run when he was released from custody in 2000.

The prosecution said, however, that the court had to examine the petitioner’s entire conduct during the period of rehabilitation, not just his record of arrests and convictions. Zeigler’s 2007 nonviolent drug possession offense and his subsequent Proposition 36 probation and drug treatment demonstrated that Zeigler had failed to obey the law or remain drug-free for seven years, prosecutors argued.

Manoukian disagreed, but the Court of Appeal said the prosecution was correct.

Santa Clara Superior Court Judge Brian Walsh, sitting by designation, reviewed the history and language of the relevant statutes, beginning at Penal Code Sec. 4852.01. The statute was enacted as an emergency measure during World War II, when the Governor’s office was inundated with pardon applications received from ex-felons who were otherwise barred from serving in the military or working in the defense industry.

  The statute, Walsh noted, provides that during the period of rehabilitation, the person seeking pardon “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.”

He cited People v. Ansell (2001) 25 Cal.4th 868,  in which the Supreme Court elaborated the requirements for such rehabilitation, finding that a certificate of is not “necessarily available to any convicted felon who claims to meet the minimum statutory requirements and is otherwise eligible to apply.”  The court has discretion to decide whether a petitioner has demonstrated rehabilitation to its satisfaction, “by his or her course of conduct… and... fitness to exercise all of the civil and political rights of citizenship.”

Walsh added that although a petitioner is not required to disclose his Proposition 36 arrest or conviction and a record of the arrest or conviction cannot be used against him, the plain language of the initiative supports the conclusion that its provisions do not bar the consideration of evidence of the conduct that led to that conviction at a hearing on a petition for a certificate of rehabilitation.

Justice Eugene Premo concurred in the majority opinion.

Justice Nathan Mihara concurred in the judgment but not the reasoning, opining that the trial court’s erroneous ruling on the “legal portion” of the petition led it to preclude the prosecution from producing evidence at an evidentiary hearing.

Mihara said:

“On remand, the trial court should vacate its order and hold a hearing to provide an opportunity for the prosecution to seek admission of evidence” of whether Zeigler is entitled to a certificate of rehabilitation.

The case is People v. Zeigler; 12 S.O.S. 6075.


Copyright 2012, Metropolitan News Company