NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Chance Xcaliber Oberstein appeals the superior court's denial of his petition for a certificate of rehabilitation and pardon. (Pen. Code, § 4852.01; all statutory references are to the Penal Code unless otherwise noted). Oberstein sought the certificate 12 years after suffering felony convictions for several sex offenses involving a 16-year-old girl. He contends the court abused its discretion in denying his application solely because granting his application would relieve Oberstein of the requirement to continue registering as a sex offender. Oberstein also argues the court lacked statutory authority to impose a new two-year rehabilitation period. We find no basis to overturn the judgment, but agree the court had no basis to impose another two-year rehabilitation period. Accordingly, we affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In July 1998, a jury convicted Oberstein of sexual intercourse with a minor (§ 261.5, subd. (c)), sodomy with a person under age 18 (§ 286, subd. (b)(1)), and oral copulation with a person under age 18 (§ 288a, subd. (b)(1)). At the time of the sexual contact in June 1996, Oberstein was a 38-year-old Los Angeles County Public Defender. The victim was a 16-year-old female client of the Public Defender's office, although not represented by Oberstein. The trial court suspended imposition of judgment, placed Oberstein on probation and required him to serve 365 days in jail. He resigned from the State Bar.
In June 2001, the Los Angeles Superior Court granted the probation department's motion for early termination of probation because Oberstein had complied with all probationary terms and conditions. In September 2003, the court reduced Oberstein's convictions to misdemeanors (§ 17, subd. (b)). In January 2004, the Los Angeles court set aside the guilty verdict and dismissed the information. (§ 1203.4.) In 2008, the State Bar reinstated Oberstein to the practice of law.
In February 2010, Oberstein filed the instant petition for a certificate of rehabilitation. (§ 4852.01.) At the April 2010, hearing on the petition, Oberstein argued his legal practice, especially his chances of getting appointed to the federal indigent panel, were hindered without a rehabilitation certificate. In denying the petition, the court initially remarked that Oberstein's misconduct "for a member of the Bar, [was] very serious" and "not that old." The court also considered that Oberstein would no longer have to register as a sex offender under section 290 if it granted his request for the rehabilitation certificate. The court observed Oberstein was "in a good position to have the . . . petition granted except for the collateral impact of the [section 290 sex offender] registration. If I . . . wasn't concerned about that, I'd grant it. . . . [¶] I am concerned about the [section] 290 registration in light of the facts of this case. This is an aggravated situation . . . given the age difference and what his status was at the time he engaged in this conduct, which somebody might describe as predatory to some degree, given . . . his position of power and trust in relation to the victim." The court stated "the 290 registration is sticking in my craw. Without that, I would have granted it without any argument," noting Oberstein was "51 years old, still in the prime of life, if you will."
A. The Trial Court Did Not Abuse Its Discretion by Denying the Petition for Certificate of Rehabilitation
Oberstein contends the superior court denied his petition solely because issuing a certificate of rehabilitation would relieve him of the requirement to register as a sex offender. Because there was no evidence apart from the original offense that Oberstein presented a continuing threat to minors, Oberstein reasons the trial court erred. We disagree.
A certificate of rehabilitation is a court-issued recommendation to the Governor to pardon a convicted felon and release the petitioner from certain civil disabilities stemming from the conviction. (People v. Ansell (2001) 25 Cal.4th 868, 871, 874-875 (Ansell).) To obtain a rehabilitation certificate, the petitioner must have successfully completed his or her sentence and show a sustained "period of rehabilitation" in which the petitioner demonstrates "a good moral character," encompassing traits of honesty, sobriety, industry, and obeying all laws.
Oberstein filed his petition under section 4852.01, which provides, in relevant part, that: "(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."
In determining whether to grant the petition, the superior court conducts a hearing to consider relevant testimonial and documentary evidence. (§§ 4852.1, 4852.11.) The district attorney may investigate the petitioner and report to the court.
"The standards for determining whether rehabilitation has occurred are high" and "there is no circumstance under which the statutory scheme requires or guarantees issuance of a certificate of rehabilitation." (Ansell, supra, 25 Cal.4th at pp. 887-888.) A petition for certificate of rehabilitation is addressed to the trial court's discretion, and the exercise of that discretion will be overturned only for manifest abuse that results in a miscarriage of justice. (People v. Blocker (2010) 190 Cal.App.4th 438, 444.); People v. Lockwood (1998) 66 Cal.App.4th 222, 226-227.) The burden is on the complaining party to establish an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
In challenging the superior court's rejection of his petition, Oberstein emphasizes he satisfied the statutory time (§ 4852.03, subd. (a)(2)), residency (§ 4852.01, subd. (c)), and other requirements (§ 4852.01, subd. (c) [dismissal of information]; § 1203.4) for rehabilitation. He also contends that after committing his crimes, he has lived an honest and upright life, conducted himself with sobriety and industry, exhibited good moral character, and obeyed all laws. He asserts his 1996 criminal offenses, standing alone, are insufficient to demonstrate he poses a continuing threat to minors, and all psychological and other evidence presented to the court "shows that [he] is not a continuing threat."
The majority of Oberstein's favorable mental health evaluations, however, were prepared in 1998 and addressed only the issue of whether Oberstein posed a risk to others if granted probation. The most recent assessment was a January 2008 report from John Coleman, a licensed social worker. Coleman found no evidence Oberstein was a pedophile and based on several factors, including Oberstein's religious commitment, concluded that he did not pose a danger to society. The court's rejection of this evidence does not constitute an abuse of discretion, however. As the Attorney General points out, Coleman did not base his conclusion on a structured mental health evaluation that a forensic psychologist would have administered before rendering an opinion. Nor did Coleman carry the expertise of a psychiatrist trained to assess the risks posed by sex offenders. The court therefore did not act arbitrarily in disregarding Oberstein's mental health evidence and implicitly finding Oberstein failed to meet his burden to show complete rehabilitation. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633-634 [trier of fact may entirely reject expert's testimony, even where expert's testimony is not contradicted].)
Section 4852.13 vests the superior court with discretion to determine whether the petitioner has demonstrated to the court's satisfaction the criteria for obtaining a certificate of rehabilitation. The statute states that "if . . . 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 and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated . . . ." (§ 4852.13, subd. (a), italics added.) "May" is permissive; the statute does not use the mandatory "shall." (See In re Richard E. (1978) 21 Cal.3d 349, 354; 1A Singer, Sutherland, Statutes and Statutory Construction (6th ed. 2002) §§ 25.3 & 25.4, pp. 604-614.) Thus, a certificate of rehabilitation is not necessarily available to any convicted felon who appears to meet the minimum statutory requirements and is otherwise eligible to apply. (§§ 4852.05, 4852.13, subds. (a) &(b); Ansell, supra, 25 Cal.4th at pp. 887-888; § 4852.13, subd. (a), as amended by Stats. 1996, ch. 129, § 2, eff. July 8, 1996 [clarifying that a certificate of rehabilitation "may" issue upon the requisite showing of reform].) Nor does the statute require a finding, express or implied, that the petitioner represents a continuing threat to commit offenses specified in section 290. Of course, a determination the petitioner poses a continuing threat precludes the court from issuing a certificate of rehabilitation, but the absence of this finding does not require the court to grant the petition.
Oberstein has presented a record that "`merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial court.' [Citation.]" (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) On the record before us, we cannot say the court's denial of Oberstein's petition constituted an arbitrary or irrational decision.
B. The Trial Court Erred in Imposing an Additional Two-Year Rehabilitation Period
The superior court denied Oberstein's petition without prejudice to reapply "in not less than two years." Oberstein contends the court lacked any statutory authority in setting the two-year waiting period. We agree.
Generally, defendants must undergo a seven-year rehabilitation period after release from custody before petitioning for a rehabilitation certificate. (§ 4852.03, subd. (a)(3); People v. Failla (2006) 140 Cal.App.4th 1514, 1518 (Failla ).) Because Oberstein was required to register as a sex offender, section 4852.03, subdivision (a)(2), imposed a 10-year rehabilitation period. Oberstein complied with the statute and filed his petition after the 10-year period elapsed. The statutory scheme for obtaining rehabilitation certificates is silent on whether the superior court may impose an additional rehabilitation period after denying a petitioner's initial application. Setting a rehabilitation period is a policy determination for the Legislature. We assume the absence of statutory authority for a trial court to impose additional rehabilitation periods is a policy decision the Legislature reached after weighing the matter.
The Attorney General relies on section 4852.11, which provides: "Any peace officer shall report to the court, upon receiving a request as provided in Section 4852.1, all violations of law committed by said petitioner which may come to his knowledge. Upon receiving satisfactory proof of such violation the court may deny the petition and determine a new period of rehabilitation not to exceed the original period of rehabilitation for the same crime." (Italics added.) This provision vests the trial court with discretion to set a new rehabilitation period if it receives satisfactory proof the petitioner has committed other offenses. (Failla, supra, 140 Cal.App.4th at pp. 1518, 1520-1521[trial court has discretion under section 4852.11 to set new rehabilitation period after receiving satisfactory proof petitioner violated other laws].)
The provision does not apply to Oberstein because he has not committed any other offenses and the trial court did not base its denial on section 4852.11. If anything, section 4852.11 supports Oberstein's position because it shows the Legislature expressly vested the trial court with authority for setting a new rehabilitation period, but only if the court receives satisfactory proof of other "violations of law." The Legislature's failure to vest trial courts with the same authority for unsuccessful applicants who have no other violations supports the conclusion the Legislature did not intend to prevent these applicants from reapplying within a reasonable time.
We strike that portion of the judgment setting a new two-year rehabilitation period. (§ 1260.) As modified, the judgment is affirmed.
BEDSWORTH, ACTING P. J.
In People v. Hofsheier (2006) 37 Cal.4th 1185, the Supreme Court held mandatory sex offender registration for a 22-year-old man convicted of oral copulation (§ 288a, subd. (b)(1)) with a 16-year-old violated Equal Protection because a similarly situated man convicted of unlawful sexual intercourse (§ 261.5, subd. (c)) is not subject to mandatory registration. Although Hofsheier appears to preclude mandatory registration for any of Oberstein's offenses (see People v. Thompson (2009) 177 Cal.App.4th 1424 [mandatory lifetime sex offender registration for sodomy violates Equal Protection]), Oberstein does not assert the superior court denied his rehabilitation petition based on a mistaken belief Oberstein was subject to mandatory sex offender registration.
Here, the Los Angeles District Attorney elected not to respond or appear in opposition to the petition, but the Orange County District Attorney opposed the petition.