People v. Eno CA5

Filed 5/3/16 P. v. Eno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070217 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 1480999) v.

EMERY CRAIG ENO, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Robert D. Salisbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Peña, J.

Defendant Emery Eno appeals from an order denying his petition for a certificate of rehabilitation (Pen. Code, § 4852.01 et seq.).1 He contends the trial court abused its discretion and violated his right to equal protection when it denied the petition. We affirm. BACKGROUND On July 1, 1985, in Santa Clara County, defendant was convicted of committing a lewd and lascivious act upon a child under 14 years of age (§ 288, subd. (a)), and misdemeanor annoying or molesting a child under the age of 18 (former § 647a, now § 647.6). On October 3, 1988, in Santa Clara County, defendant received a section 1203.4 record clearance of his 1985 convictions.2

1 All statutory references are to the Penal Code unless otherwise noted. 2 In 1988, section 1203.4 did not exclude those convicted of violating section 288. At that time, section 1203.4 provided in part: “(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing; however, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any