People v. Sarmiento CA2/6

Filed 1/21/15 P. v. Sarmiento CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B254662 (Super. Ct. No. A387887) Plaintiff and Respondent, (Los Angeles County)

v.

AUGUSTO SARMIENTO, JR.,

Defendant and Appellant.

Appellant Augusto Sarmiento challenges the trial court's denial of his petition for a certificate of rehabilitation and pardon. (Pen. Code, § 4852.01.)1 Three decades ago, he was convicted of multiple counts of lewd behavior with a minor. (§ 288, subd. (a).) At the time of his conviction, section 288 offenders were among those eligible to seek a certificate of rehabilitation and pardon. In 1997, the Legislature amended the statute to exclude them.2 Appellant contends that the 1997 amendment violates the equal protection and ex post facto clauses of the federal and California Constitutions and that his previous counsel rendered ineffective assistance by failing to follow through on his petition for rehabilitation filed five years before the amendment came into effect. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated. 2 The amendment became effective on January 1, 1998. (People v. Ansell (2001) 25 Cal.4th 868, 877-878.)

FACTS AND PROCEDURAL HISTORY3 On four separate occasions in 1982, appellant took different boys to isolated locations in Los Angeles County. On three of these occasions, appellant showed the boy magazines and photographs depicting nude and semi-nude adult males, including himself, engaged in sadomasochistic acts while bound with a variety of restraints. Appellant undressed the boy down to his undershorts and they took turns restraining each other with ropes and handcuffs. On one of these occasions, appellant ejaculated after rubbing against a pole. On the fourth occasion, appellant tied the boy's hands behind his back against his will, hoisted him off the ground approximately three feet, and photographed him. Pursuant to a guilty plea, appellant was convicted of multiple counts of lewd behavior with a minor. He was sentenced to state prison for a term of six years. The trial court suspended execution of sentence and placed appellant on formal probation for five years with terms and conditions including that he serve 364 days in county jail, the imposition of which was stayed. In 1988, after appellant had successfully completed the terms of his probation, the court terminated it and dismissed his case. Appellant has never been charged with or convicted of any other felony. In 1993, appellant retained attorney Scott Furstman to obtain a certificate of rehabilitation and pardon. At the time, appellant met all of the requirements, though the relief he sought ultimately rested in the trial court's discretion. Furstman filed a petition on appellant's behalf but failed to attend a mandatory hearing, and the trial court never granted the certificate. Appellant incorrectly believed that Furstman had completed the process. In 2012, when appellant lost his 26-year job at the University of Southern California and began searching for new employment, he discovered that Furstman had abandoned his case. Appellant subsequently filed a combined petition to reduce a felony to a misdemeanor (§ 17), petition for relief from sex offender registration (§ 290.5), and