People v. Weiglein CA1/3 ( 2015 )

Filed 8/21/15 P. v. Weiglein CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent,
A143494
v.
DENNIS BERT WEIGLEIN, (Alameda County
Super. Ct. No. C-70781)
Defendant and Appellant.
Defendant Dennis Bert Weiglein appeals from an October 22, 2014, order denying
his petition for certificates of rehabilitation and pardon for a 1966 felony conviction for
forcible rape and a 1995 misdemeanor conviction for molesting a child under the age of
18 years. (Pen. Code, § 4852.01 et. seq. 1). We affirm.
1
All further unspecified statutory references are to the Penal Code. Section
4852.01 provides, in pertinent part: “(c) Any person convicted of a felony or any person
who is convicted of a misdemeanor violation of any sex offense specified in Section 290,
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 if the petitioner has not been incarcerated in any prison, jail, detention facility, or
other penal institution or agency since the dismissal of the accusatory pleading and 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.” Section 4852.05 states: “The person shall live an honest and upright life, shall
conduct himself or herself with sobriety and industry, shall exhibit good moral character,
and shall conform to and obey the laws of the land.” Section 4852.06 states, in pertinent
part, “[a]fter the expiration of the minimum period of rehabilitation . . . (and, in the case
of persons released upon parole or probation, after the termination of parole or
probation), each person who has complied with the requirements of Section 4852.05 may
1
FACTS
A. Background
On July 29, 1966, the San Bernardino County District Attorney filed an amended
complaint against defendant, charging him with three felony offenses: rape by means of
force and violence (count one) and kidnapping (count two) based on a July 27, 1966,
incident concerning one victim, and rape by means of force and violence (count three)
based on a June 27, 1966, incident concerning a different victim. On August 12, 1966,
defendant pled guilty to count one (forcible rape) (§ 261, subd. (3) [now subd. (a)(2)])2
and the remaining counts were dismissed on the district attorney’s motion. On
October 28, 1966, defendant’s application for probation was denied and he was sentenced
to state prison for the “term prescribed by law” (three years to life). He was discharged
from prison after completing his sentence and released on parole from which he was
finally discharged in October 1971.
On December 1, 1994, the Alameda County District Attorney filed a complaint
against defendant, charging him with one count of misdemeanor molestation of a child
under the age of 18 years (§ 647.6). On January 11, 1995, defendant pled guilty to the
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.”
2
This conviction for forcible rape requires defendant to register for life as a sex
offender. (§ 290, subd. (c); see also Stats. 1947, ch. 1124, § 1, p. 2562 [requiring lifetime
sex offender registration for persons convicted of section 261, subdivision (3) [now
subdivision (a)(2)].) The California Sex and Arson Registry (CSAR) website includes
the following description of the offense: “In June, of 1966, Weiglein was 30-years old
and was living in the City of San Bernardino when he kidnapped a 16-year old female
under the pretense of offering her . . . a job as babysitter (victim). Weiglein claimed there
was a mutual attraction between him and the victim to the point where they were both
flirtatious with each other. Weiglein eventually fondled the victim’s breast, skin to skin,
and ‘thought’ about raping her. San Bernardino police arrested Weiglein for kidnapping
and forced rape as result of their investigation. Weiglein subsequently pled . . . guilty to
one count of rape by force even though he claims that he never had sexual intercourse
with the victim.”
2
charged offense3 and was immediately sentenced to a three-year probationary term with a
condition that he serve 30 days in county jail. After serving the jail time, defendant was
released from custody and successfully completed his probation in January 1998.
B. Trial Court Proceeding
On March 5, 2014, 78-year-old defendant filed a petition for certificates of
rehabilitation and pardon (hereafter “certificate of rehabilitation” 4) in Alameda County
Superior Court, seeking relief relative to the 1966 felony conviction and the 1995
misdemeanor conviction. He submitted a declaration detailing the circumstances of his
life since his 1966 conviction, and averred that during the period of his rehabilitation, he
met the statutory criteria that he live “an honest and upright life,” conduct himself “with
sobriety and industry,” “exhibit good moral character,” and “shall conform to and obey
the laws of the land.” (§ 4852.05.)
On August 12, 2014, an inspector for the Alameda County District Attorney’s
Office submitted a report (hereafter inspector’s report), dated July 31, 2014. In his
report, the inspector described, among other things, the circumstances leading to the
3
This conviction for molestation of a child under the age of 18 years (§ 647.6) also
requires defendant to register for life as a sex offender. (§ 290, subd. (c).) The CSAR
website includes the following description of the offense: “In December of 1994, [58-
year old] Weiglein went over to the house of a longtime friend in the town of Sunol and
found his friend’s 16-year old daughter (victim) home alone. Weiglein subsequently
touched the victim’s breast over her clot[h]ing during the visit.”
4
“Although there are various statutory references to a ‘certificate of rehabilitation
and pardon’ ([§]§ 4852.01, subds. (a), (b), (c), 4852.21, subds. (a), (b)), the more
commonly used term is ‘certificate of rehabilitation’ (§ 4852.13, subd. (a) [the court order
granting a petition ‘shall be known as a certificate of rehabilitation’]; see also §§ 4852.03,
subds. (a)(4), (b), 4852.06, 4852.13, subds. (b), (c), 4852.14, 4852.16, 4852.17). . . . If
granted, the petition is deemed an application for a pardon and forwarded to the Governor
(§ 4852.16) with the court’s ‘recommend[ation] that the Governor grant a full pardon to
the petitioner’ (§ 4852.13, subd. (a)). In accordance with the judicial preference for the
more precise term (see People v. Ansell (2001) 25 Cal. 4th 868, 871-872 [108 Cal. Rptr. 2d
145, 24 P.3d 1174][(Ansell)]; People v. Lockwood (1998) 66 Cal. App. 4th 222, 225 [77
Cal.Rptr.2d 769][(Lockwood)]), the object of [defendant’s] petition will be called a
certificate of rehabilitation.” (People v. Blocker (2010) 190 Cal. App. 4th 438, 440-441,
fn. 2 (Blocker).)
3
convictions at issue and another 2008 misdemeanor conviction5, defendant’s employment
history and family circumstances, defendant’s compliance with section 290 sex offender
registration, and interviews with the victim of the molestation offense, defendant’s family
members, and defendant’s “character references.” The inspector attached to his report
copies of records from various agencies including the Fremont Police Department
(reports in 1997, 2003, 2005, of defendant’s suspicious behavior relative to minors, none
of which resulted in arrests), Consolidated Records Information Management System
(CRIMS), and CSAR (showing “annual violations” regarding defendant’s section 290 sex
offender registration in each of 8 years spanning 1996 through 2013) 6.
The Alameda County District Attorney filed a response to the petition, opposing
the grant of a certificate of rehabilitation for either conviction. As to the 1995
misdemeanor conviction, the prosecutor asserted defendant was not eligible for the
requested relief because he had not secured a section 1203.4 dismissal of that conviction
as required by section 4852.01, subdivision (c). As to the 1966 felony conviction, it was
5
The inspector’s report includes the following description of the offense: “On
5/30/2007, Petitioner WEIGLEIN appeared at a sting operation, run by the CSLB
[California State Licensing Board], and provided an estimate to perform a cement job.
WEIGLEIN had an advertisement in the AT&T Yellow Pages, for ‘Denny’s Concrete
Services.’ After supplying the CSLB sting operator with an estimate, he was asked if he
had a contractor’s license, which he admitted to not possessing. WEIGLEIN was cited
for violations of Business and Professions Code Sections 7027.1 (Illegal Advertising) and
7028 (Unlicensed Contractor). On 1/31/2008, Petitioner WEIGLEIN was convicted
(Nolo Contendere) of 7027.1 BP, and the 7028 BP violation was dismissed in view of the
plea. Petitioner WEIGLEIN received credit for time served, was fined $250, and
received a court probation sentence.”
6
The CSAR website of defendant’s section 290 registration includes a February 27,
2014 “registration note” by a Fremont police officer that an anonymous church member
had reported that defendant had hugged a juvenile female at the church. When
questioned about the matter during his annual registration, defendant admitted he hugged
the girl, and he said it probably would not be a good idea to do so in the future. The
district attorney’s inspector spoke with the officer, who reported that the church member
also “spoke of” defendant leaving the church after church members confronted him about
being outwardly friendly with children in the church, including giving the children hugs
and gifts.
4
conceded that defendant met the minimum statutory rehabilitative period to apply for a
certificate of rehabilitation. However, the prosecutor argued defendant had failed to
show he had truly been rehabilitated since his 1966 felony conviction as the inspector’s
report demonstrated that defendant had not led an exemplary life since his discharge from
parole in 1971. The prosecutor also asserted that the inspector’s report contained
information demonstrating that defendant continued to be a threat to children, and the
court was urged to deny the petition pursuant to section 4852.13, subdivision (b), which
states: “No certificate of rehabilitation shall be granted to a person convicted of any
offense specified in Section 290 if the court determines that the petitioner presents a
continuing threat to minors of committing any of the offenses specified in Section 290.”
In reply, defendant submitted a petition to dismiss the 1995 misdemeanor
conviction under section 1203.4, and asked the court to consider his belated petition to
dismiss, together with his request for a certificate of rehabilitation relative to that
conviction. He also challenged certain information in the inspector’s report and asked the
court to consider certain facts demonstrating his honesty and upright living.
Following a hearing on October 22, 2014, the trial court addressed each conviction
separately. First, the court denied, without prejudice, a certificate of rehabilitation
relative to the 1995 misdemeanor conviction on the ground that defendant was not
eligible for the requested relief because he had not secured a section 1203.4 dismissal of
that conviction as required by section 4852.01, subdivision (c). The court advised
defendant to refile his petition to dismiss the 1995 misdemeanor conviction under section
1203.4. Second, the court denied the petition for a certificate of rehabilitation relative to
the 1966 felony conviction on the ground that defendant was eligible, but not a suitable
candidate. The court explained that since defendant’s 1966 felony conviction he had not
lived an upright, honest life, noting in particular the nature of the 1995 misdemeanor
conviction for molesting a child under the age of 18 years (§ 647.6). That later
conviction “raise[d] a grave, grave doubt,” which “defeat[ed]” defendant’s “burden of
proof that he [did not] present an actual danger to re-offend.”
5
On October 22, 2014, the court filed a minute order denying the petition for
certificates of rehabilitation and further ordered that defendant could refile his petition to
dismiss the 1995 misdemeanor conviction. Defendant’s timely appeal ensued.
ANALYSIS
I. Applicable Law
Generally, “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. (§ 4852.03, subd. (a)
[imposing general minimum requirements of five years’ residence in this state, plus an
additional period typically ranging between two and five years depending upon the
conviction]; see §§ 4852.01, subds. (a)-(c), 4852.06.) During the period of rehabilitation,
the person must display good moral character, and must behave in an honest, industrious,
and law-abiding manner. (§ 4852.05; see § 4852.06.) 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) [describing who ‘may
file’ a petition].)” (Ansell, supra, 25 Cal.4th at p. 875.)
“Proceedings begin when a qualified person petitions for a certificate of
rehabilitation in the superior court in the county in which he lives. (§ 4852.06; see
§ 4852.07 [requiring notice to the Governor and to the district attorney in the county or
counties where the petition is filed and the petitioner was convicted].) . . . [¶] The
superior court holds a hearing and considers testimonial and documentary evidence
bearing on the petition. (§§ 4852.1, 4852.11.) To this end, the court may compel the
production of judicial, correctional, and law enforcement records concerning the crimes
of which petitioner was convicted, his performance in custody and on supervised release,
and his conduct during the period of rehabilitation, including all violations of the law
known to any peace officer. (Ibid.)” (Ansell, supra, 25 Cal.4th at p. 875.)
“[I]f after hearing, the court finds that the petitioner has demonstrated by his or her
course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil
6
and political rights of citizenship, the court may make an order declaring that the
petitioner has been rehabilitated, and recommending that the Governor grant a full pardon
to the petitioner. This order shall be filed with the clerk of the court, and shall be known
as a certificate of rehabilitation.” (§ 4852.13, subd. (a).)
II. Trial Court’s Denial of Petition for Certificates of Rehabilitation
A. 1995 Misdemeanor Conviction
As noted, the trial court denied, without prejudice, defendant’s petition for a
certificate of rehabilitation relative to the 1995 misdemeanor conviction on the ground
that defendant was not statutorily eligible to apply for the requested relief. (§ 4852.01,
subd. (c).) Because defendant does not challenge the court’s ineligibility ruling, we do
not address his argument that he was otherwise a suitable candidate for the issuance of a
certificate of rehabilitation for that conviction.
B. 1966 Felony Conviction
We review the trial court’s denial of the petition for a certificate of rehabilitation
relative to the 1966 felony conviction for an abuse of discretion. (People v. Failla (2006)
140 Cal. App. 4th 1514, 1519; Lockwood, supra, 66 Cal.App.4th at p. 227.) “The standard
test for ascertaining an abuse of that discretion is whether the court’s decision exceeded
the bounds of reason. (E.g., Richardson v. Superior Court (2008) 43 Cal. 4th 1040, 1048
[77 Cal. Rptr. 3d 226, 183 P.3d 1199]; see People v. Carmony (2004) 33 Cal. 4th 367, 377
[14 Cal. Rptr. 3d 880, 92 P.3d 369] [‘decision is so irrational or arbitrary that no
reasonable person could agree with it’]; People v. DeSantis (1992) 2 Cal. 4th 1198, 1226
[9 Cal. Rptr. 2d 628, 831 P.2d 1210] [‘falls outside the bounds of reason’]; People v.
Jacobs (2007) 156 Cal. App. 4th 728, 738 [67 Cal. Rptr. 3d 615] [‘ “no reasonable basis for
the action” ’].)” (Blocker, supra, 190 Cal.App.4th at p. 444.)
Defendant argues the trial court “manifestly” abused its discretion because “it
serves no useful purpose to deny” a certificate of rehabilitation for a “50-year old” felony
conviction. However, as our Supreme Court explained in Ansell, a certificate of
rehabilitation is not “necessarily available to any convicted felon who claims to meet the
7
minimum statutory requirements and is otherwise eligible to apply.” (Ansell, supra, 25
Cal.4th at p. 887.) The statutory scheme neither “requires” nor “guarantees issuance of a
certification of rehabilitation . . . .” (Id. at pp. 887-888.) Thus, to the extent defendant
relies on the mere passage of time, such factor, standing alone, does not call into question
the trial court’s ruling as a matter of law.
Defendant also argues that the trial court’s evaluation of the period of his
rehabilitation was limited to the “period of five years after he was released from
custody.” That is not the law. The statutory scheme imposes a general minimum
eligibility requirement of five years’ residence in this state, plus an additional period
typically ranging between two and five years depending upon the nature of the conviction
before a defendant may petition for a certificate of rehabilitation. (§ 4852.01-4852.03.)
However, once a petition is filed, the trial court is required to 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. (§§ 4852.[0]1-4852.12.)”
(Ansell, supra, 25 Cal.4th at p. 887, italics added.) Consequently, the trial court here
appropriately considered all of defendant’s conduct through the time of the certificate of
rehabilitation proceeding, including “the nature” of the 1995 misdemeanor conviction -
his molestation of a child under the age of 18 years in December 1994. (Cf. People v.
Zeigler (2012) 211 Cal. App. 4th 638, 666 [even when defendant is released from all
penalties and disabilities resulting from a nonviolent drug possession offense of which he
is convicted (§ 1201.1), trial court may consider evidence of the underlying conduct that
led to the arrest and conviction at a hearing on his petition for a certificate of
rehabilitation].)
Lastly, we are not persuaded by defendant’s argument that “[a]fter a review of the
record, it becomes clear that [he] has met the criteria for a certificate of rehabilitation.”
“This assertion is unsupported by an appropriate record reference. ‘If a party fails to
support an argument with the necessary citations to the record, that portion of the brief
may be stricken and the argument deemed [forfeited]. [Citation.]’ (Duarte v. Chino
Community Hospital (1999) 72 Cal. App. 4th 849, 856 [85 Cal. Rptr. 2d 521]; People v.
8
Hyatt (1971) 18 Cal. App. 3d 618, 624 [96 Cal. Rptr. 156] [citing former Cal. Rules of
Court, rule 15(a), now rule [8.204(a)(1)(C)].)” (Miller v. Superior Court (2002) 101
Cal. App. 4th 728, 743.) In all events, we see no merit to defendant’s argument that the
trial court abused its discretion. “The hurdles erected by the Legislature to obtain a
certificate of rehabilitation are not intended to be easily surmounted. The trial courts are
entrusted with the responsibility, in the exercise of a sound discretion, to ensure that the
strict statutory standards for rehabilitation are maintained. ([Ansell, supra, 25 Cal.4th at
pp. 887-888; Lockwood, supra, 66 Cal.App.4th at pp. 226-227].)” (Blocker, supra, 190
Cal.App.4th at p. 445, fns. omitted; id. at pp. 440, 445 [denial of certification of
rehabilitation for convictions of assault and misdemeanor molestation of a minor upheld
where trial court found defendant’s adamant refusal to admit any criminal culpability was
a cloud on his claimed rehabilitation].) Here, the trial court ruled that despite the passage
of time since the 1966 felony conviction defendant had not consistently lived an honest
and upright life. The court also expressed a genuine concern that defendant had failed to
demonstrate that he did not present an actual danger to re-offend given the nature of the
1995 misdemeanor conviction. In the absence of a showing of an abuse of discretion by
the trial court, we must uphold its denial of a certificate of rehabilitation relative to the
1966 felony conviction. 7
DISPOSITION
The order of October 22, 2014, is affirmed.
7
We see no evidence in the record supporting defendant’s contention that the trial
court denied his request for a certificate of rehabilitation relative to the 1966 felony
conviction based on section 4852.01, subdivision (d). Section 4852.01, subdivision (d),
prohibits the use of the certification of rehabilitation procedure by “persons serving a
mandatory life parole, persons committed under death sentences, persons convicted of a
violation of Section 269, subdivision (c) of Section 286, Section 288, subdivision (c) of
Section 288a, Section 288.5, Section 288.7, or subdivision (j) of Section 289, or persons
in military service.” Defendant does not appear to be disqualified from seeking a
certificate of rehabilitation relative to the 1966 felony conviction based on section
4852.01, subdivision (d).
9
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
10