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PEOPLE v. OBERSTEIN
THE PEOPLE, Plaintiff and Respondent,
v.
CHANCE XCALIBER OBERSTEIN, Defendant and Appellant.
No. G043712.
Court of Appeals of California, Fourth District, Division Three.
Filed July 27, 2011.
NOT TO BE PUBLISHED IN OFFICIAL REPORTSOPINIONARONSON, J. Chance Xcaliber Oberstein appeals the superior court's denial of his petition for a certificate of rehabilitation and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. IFACTUAL AND PROCEDURAL BACKGROUNDIn 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.
1. The state bar found Oberstein sustained his burden by clear and convincing evidence to show he possessed the present moral qualifications and met the other requirements for reinstatement to the practice of law in California.
2. Section 290.5 provides, "(a)(1) A person required to register under Section 290 for an offense not listed in paragraph (2), upon obtaining a certificate of rehabilitation . . . shall be relieved of any further duty to register under Section 290 if he or she is not in custody, on parole, or on probation." Oberstein's offenses are not listed in paragraph (2) of section 290.5. Accordingly, granting the petition would relieve Oberstein of the requirement to register as a sex offender.
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.
3. Section 4852.05 specifies, "The person [seeking the certificate] shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land."
4. Section 4852.06 provides, "[A]fter the expiration of the minimum period of rehabilitation applicable to him or her (and, in the case of persons released upon parole or probation, after the termination of parole or probation), each person who has complied with the requirements of Section 4852.05 may file in the superior court of the county in which he or she then resides a petition for ascertainment and declaration of the fact of his or her rehabilitation and of matters incident thereto, and for a certificate of rehabilitation under this chapter. No petition shall be filed until and unless the petitioner has continuously resided in this state, after leaving prison, for a period of not less than five years immediately preceding the date of filing the petition."
5. Section 4852.07 provides, "The petitioner shall give notice of the filing of the petition to the district attorney of the county in which the petition is filed, to the district attorney of each county in which the petitioner was convicted of a felony or of a crime the accusatory pleading of which was dismissed pursuant to Section 1203.4, and to the office of the Governor, together with notice of the time of the hearing of the petition, at least 30 days prior to the date set for such hearing."
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.
6. Oberstein's case illustrates why the Legislature may have declined to vest the court with discretion to set new rehabilitation periods where the petitioner has not committed any other offenses. The Attorney General persuasively argued the court rejected the opinions of Oberstein's expert witnesses because either the information was stale or the expert lacked the requisite qualifications. These defects may be corrected within a short time. Assuming Oberstein obtains a favorable opinion from a qualified expert, no policy reason supports delaying a decision on the new petition.
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