People v. Gonzalez CA5

Filed 9/26/16 P. v. Gonzalez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070939 Plaintiff and Respondent, (Super. Ct. No. MCR049540) v.

JOE GONZALEZ, JR., OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.

Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kerry Ramos, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION On September 30, 2003, defendant Joe Gonzalez, Jr. (also known as Joey Gonzalez), pled no contest in Fresno County to one count of committing lewd and

lascivious acts with a child under 14 in violation of Penal Code section 288, subdivision (a).1 In exchange for defendant’s plea, 11 other counts were dismissed. Defendant was placed on five years’ probation upon various terms and conditions. On July 23, 2014, defendant filed a petition pursuant to former section 4852.01 et seq.2 in Madera Superior Court seeking a certificate of rehabilitation and pardon. On January 12, 2015, the trial court denied defendant’s petition for a certificate of rehabilitation. Defendant argues a review of the record demonstrates he has met the criteria for a certificate of rehabilitation because he has lived an honest and upright life with good moral character during a period of five years after his release from custody. Defendant

1All statutory references are to the Penal Code. 2In 2014, former section 4852.01 provided: “(a) Any person convicted of a felony who has been released from a state prison or other state penal institution or agency in California, whether discharged on completion of the term for which he or she was sentenced or released on parole prior to May 13, 1943, who has not been incarcerated in a state prison or other state penal institution or agency since his or her release and who presents satisfactory evidence of a three- year residence in this state immediately prior to the filing of the petition for a certificate of rehabilitation and pardon provided for by this chapter, may file the petition pursuant to the provisions of this chapter. [¶] (b) Any person convicted of a felony who, on May 13, 1943, was confined in a state prison or other institution or agency to which he or she was committed and any person convicted of a felony after that date who is committed to a state prison or other institution or agency may file a petition for a certificate of rehabilitation and pardon pursuant to the provisions of this chapter. [¶] (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. [¶] (d) This chapter shall not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, or persons in the military service. [¶] (e) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.”