Flores v. Dept. of Justice CA1/2

Filed 5/29/15 Flores v. Dept. of Justice CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

JOSE O. FLORES, Plaintiff and Appellant, v. DEPARTMENT OF JUSTICE, A141873 Defendant and Respondent; (San Mateo County THE PEOPLE, Super. Ct. No. SCO2037A) Real Party in Interest and Respondent.

Appellant Jose Flores has registered as a Penal Code section 2901 sex offender since 1989. In 1997, Flores obtained a certificate of rehabilitation, and in 2012, he requested that respondent Department of Justice (Department) relieve him of further obligation to register under section 290. After the Department denied his request, Flores petitioned the Superior Court for the County of San Mateo for a writ of administrative mandamus directing the Department to remove him from the sex offender registry. The court denied his petition. Flores appeals, and we reverse. BACKGROUND In July 1988, Flores was arrested on charges of attempted rape (§ 664/261, subd. (2)) and assault with intent to commit rape (ibid., § 220). He pleaded no contest to the attempted rape charge, and the second count was dismissed. On his change of plea form,

1 All statutory references are to the Penal Code.

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Flores acknowledged that as a result of his plea, he “must register as a sex offender in accordance with [section] 290 . . . .” On January 27, 1989, the court sentenced Flores to a three-year term of felony probation, the terms and conditions of which included eight months in county jail. Flores was admitted to probation on March 14, 1989. In August 1989, Flores was released from custody after serving his jail sentence. Upon his release, he was instructed by his probation officer to register as a sex offender, which he did for the first time on August 10, 1989. On February 11, 1991, the court ordered Flores’s probation terminated, Flores having fulfilled the terms of his probation and remained arrest-free. His no contest plea was set aside, a plea of not guilty entered, and the accusatory pleading dismissed pursuant to sections 1203.3 and 1203.4. Flores subsequently petitioned for a certificate of rehabilitation. (§ 4852.01 et seq.) On December 17, 1997, the trial court granted his petition. In the order granting the petition, the trial court “recommend[ed] that the Governor of the State of California grant [Flores] a full pardon . . . .” Despite this recommendation, by letter dated June 16, 2005, the Governor of California denied Flores’s request for a pardon. On September 26, 2012, Flores’s counsel, Eloy Trujillo, sent a letter to the Department requesting that it relieve Flores of his section 290 registration obligation. Trujillo cited the following three reasons for the request: (1) under the law in effect on December 17, 1997 (the date the trial court granted Flores a certificate of rehabilitation), Flores’s offense qualified for relief from the obligation to register as a sex offender; (2) the trial court did not advise Flores of the lifetime registration requirement at any time during the trial court proceedings; and (3) Flores’s plea was based on the state of the law at the time of his plea, at which time a grant of a certificate of rehabilitation would have relieved him of the obligation to register as a sex offender. In a response dated December 10, 2012, the Attorney General denied Flores’s request. She provided the following explanation for the denial: “Under California Penal Code section 290.5, an offender convicted of one of the enumerated offense [sic] listed in