P. v. Offerman CA2/6 ( 2013 )

Filed 7/18/13 P. v. Offerman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B245259
(Super. Ct. Nos. CR16764
Plaintiff and Respondent, CR16725, CR46459)
(Ventura County)
v.
DONALD MONROE OFFERMAN,
Defendant and Appellant.
Donald Monroe Offerman appeals an order denying his petitions for a
certificate of rehabilitation and pardon, commonly known as a "certificate of
rehabilitation." (Pen. Code, § 4852.03; see People v. Blacker (2010) 190 Cal.App.4th
1438, 440, fn. 2.) The trial court impliedly found that appellant had not demonstrated
good moral character over a sustained rehabilitation period but could refile the petitions
in 2015. We affirm. (§§ 4852.11; 4852.13, subd. (a); People v. Failla (2006) 140
Cal.App.4th 1514, 1522.)
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All statutory references are to the Penal Code. Where the trial court finds that the
petitioner is both rehabilitated and fit to exercise the rights and privileges lost by reason
of his or her conviction, it may enter a certificate of rehabilitation order recommending
that the Governor grant a full pardon. (§ 4852.13; People v. Ansell (2001) 25 Cal.4th
868, 875-876.)
Procedural History
In 1981 appellant was convicted of five counts of grand theft-property (§
487.1) and two counts of second degree burglary (§ 459) in case numbers CR16725 and
CR16764. Appellant was sentenced to five years state prison, served part of the prison
term, and was released on parole and returned to custody multiple times before he was
discharged from parole on November 25, 1988.
In 1999, appellant was convicted by plea of battery on a peace officer
(§ 243, subd. (c)) and sentenced to a four year prison sentence. (CR46459.) Appellant
served part of the prison term, was paroled and rearrested, and scheduled for a December
24, 2004 parole release date.
MDO Commitment
On December 12, 2004, appellant was found to be a mentally disordered
offender (MDO; § 2962 et seq.) and committed to Atascadero State Hospital for
treatment. The MDO commitment was extended three times based on jury findings that
appellant suffered from a severe mental disorder that was not in remission and he was a
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substantial risk of harm to other people. (§ 2972.) Appellant was released from the
MDO commitment on March 26, 2010.
Petitions For Certificate of Rehabilitation
On January 13, 2012, appellant filed a petition for certificate of
rehabilitation in each criminal case. (§ 4852.01 et seq.) The petitions alleged that
appellant was discharged from parole on November 25, 1988, in case numbers CR16725
and CR16764 (the grand theft and burglary convictions) and discharged from parole on
June 8, 2006, in CR46459 (battery on officer conviction). The Ventura County District
Attorney opposed the petitions on the ground that the statutory rehabilitation period had
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We take judicial notice of this court's unpublished opinions affirming the MDO
commitment extension orders. (People v. Offerman (July 17, 2007, B192769), People v.
Offerman (April 15, 2008, B200645); People v. Offerman (March 15, 2010, B217017).)
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not passed (§ 4852.03, subds. (a)(3) & (b)) and appellant had not demonstrated good
moral character (§ 4852.05).
The trial court denied the petitions based on the theory that the seven-year
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rehabilitation period did not commence to run until 2010 when appellant was released
from the MDO commitment. "[I]f he's found to be a mentally disordered parolee and
taken back into custody into a state hospital setting and then released back into the
community on a civil commitment that doesn't expire until 2010, it seems he still remains
under the supervision of State parole and/or mental health authorities."
Appellant brought a motion for reconsideration. Denying the motion, the
trial court found that the petitions were filed "a few months too soon" and appellant could
refile the petitions in 2015.
Rehabilitation Period Start Date
Appellant contends that the trial court erred in finding that the rehabilitation
period did not commence to run until 2010 when appellant was released from his MDO
commitment. The Attorney General agrees that a MDO commitment does not delay the
rehabilitation period start date. Section 4852.03, subdivision (a) provides : "The period
of rehabilitation shall begin to run upon the discharge of the petitioner from custody due
to his or her completion of the term to which he or she was sentenced or upon his or her
release on parole or probation, whichever is sooner."
In Ayala v. Superior Court (1983) 146 Cal.App.3d 938 we held that a
mentally disordered sex offender's (MDSO; former Welf. & Inst. Code, § 6300 et seq.)
outpatient status did not toll or change the rehabilitation period start date. (Id., at p. 942.)
"The statutory scheme governing parolees does not apply to MDSO outpatients.
[Citation.] The confinement of MDSO's is for the purpose of treatments not punishment.
[Citation.] " (Id., at p. 942.) We concluded that there is no "logical reason why, for the
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The basic rehabilitation period is five years (§ 4852.03, subd. (a)), plus two years where
the underlying offense does not carry a life sentence or require registration as a sex
offender (§ 4852.03, subd. (a)(3)). (See People v. Failla, supra, 140 Cal.App.4th at p.
1518.)
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purposes of timely filing a petition for rehabilitation, [Ayala] ought to be treated any
differently than would have been the case had be been given the bureaucratic label of a
'parolee' rather than an 'MDSO outpatient.'" (Id., at p. 945.)
The same principle applies to a MDO commitment which is a civil
commitment for treatment, not punishment. (See In re Qawi (2004) 32 Cal.4th 1, 9
[MDO Act is not punitive but to provide treatment while at same time protecting general
public.) Appellant served part of his four year prison sentence in CR46459 and was
discharged from parole on June 8, 2006 which is the rehabilitation period start date.
(§4852.03, subd. (a); 3 Witkin & Epstein, Cal. Criminal Law, Punishment (4th ed. 2012)
§ 833, p. 1283.)
Good Moral Character
The Attorney General argues that the judgment should be affirmed on the
ground that appellant failed to demonstrate "good moral character" during a sustained
period of rehabilitation. (§ 4852.13, subd. (a).) A ruling or decision, itself correct in law,
will not be disturbed on appeal merely because given for a wrong reason. (People v.
Smithey (1999) 20 Cal.4th 936, 971-972.)
Section 4852.05 provides that the person seeking a certification of
rehabilitation "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." The trial court may deny a petition for certificate of rehabilitation
where the petitioner refuses to admit criminal culpability. (People v. Blocker (2010) 190
Cal.App.4th 438, 445 [refusal to admit guilt on underlying offenses of assault, battery
and molestation].) " '[A]cknowledgement of guilt is a critical first step towards
rehabilitation.' [Citations.]" (Id., at p. 442.)
With respect to the 1999 conviction for battery on an officer, a California
Highway Patrol officer tried to escort appellant off the railroad tracks but appellant broke
loose and ran. The petitions state that appellant is innocent, that appellant "did not touch
him," and the officer "tackled me and beat me." Appellant's refusal to take responsibility
for his actions reflects poorly on his moral character and is grounds alone for denying the
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petitions for a certificate of rehabilitation. (People v. Blocker, supra, 190 Cal.App.4th at
p. 445.)
Conclusion
At the hearing on the motion for reconsideration, the trial court noted that
appellant's severe mental disorder was a contributing cause of the 1999 offense and an
ongoing concern. In the adjudicated MDO recommitments, the juries found that the
severe mental disorder was not in remission and that appellant represented a substantial
danger of physical harm to others. (§ 2972, subd. (a).) The MDO findings were based on
appellant's long history of violence, his substance abuse, his dangerous behavior at
Atascadero State Hospital in which he kicked and spit on staff, and his refusal to follow
the treatment plan. (B217017, B192769.)
Sections 4852.11 and 4852.12 provide that a trial court, in ruling on a
petition for certificate of rehabilitation, may consider "all violations of law" regardless of
whether it resulted in an arrest or conviction, "the conduct of the petitioner during his
period of rehabilitation, . . . and any other information the court may deem necessary in
making its determination." (§ 4852.12, subd. a).) The decision to grant a certificate of
rehabilitation is discretionary and the standards for determining whether rehabilitation
has occurred are "high." (People v. Ansell, supra, 25 Cal.4th at p., 887.) The trial court
must "conduct a thorough inquiry into the applicant's conduct and character from the time
of the underlying crimes through the time of the certificate of rehabilitation proceeding.
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[Citations.]" (Ibid.)
Where an ex-felon denies criminal culpability, has a long history of
violence, and is a substantial threat of harm to others, the trial court may deny the petition
for certificate of rehabilitation and order a new rehabilitation period. (§ 4852.11; People
v. Failla, supra, 140 Cal.App.4th 1522.) That is the case here. In the words of the trial
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When appellant was sentenced to state prison in 1981 for grand theft and second degree
burglary, the trial court commented on appellant's lack of remorse, threats of retaliation
against the victims, and reports that appellant used explosives, firearms, and was lying in
wait to shoot the investigating detectives.
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court, appellant is "a few months too soon. I think he'll reach that period soon enough. I
think right now is not enough time."
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Donald D. Coleman, Judge
Superior Court County of Ventura
______________________________
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.
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