The five-year California residency prerequisite to filing a petition for certificate of rehabilitation applies to probationers as well as defendants who are released from prison or jail. Miller was convicted of felony transportation or sale of marijuana in 1987. He was placed on probation with county jail time. In 2015, while living in Montana, he petitioned for a certificate of rehabilitation (Pen. Code, § 4852.01 et seq.). The petition was denied because Miller did not reside in California when he filed it. He appealed, alleging the residency requirement only applies to defendants who are released from state prison or a county jail term under the Realignment Act of 2011, not to probationers. Held: Affirmed. A person convicted of a felony loses certain rights and privileges under California law. These rights can be restored by obtaining a certificate of rehabilitation and pardon. The certificate of rehabilitation statutes require a petitioner to live in California when the petition is filed and for the five years immediately preceding the filing of the petition. This period commences when the petitioner leaves prison or jail (Pen. Code, § 4852.06). This requirement is not restricted to defendants sentenced to state prison or county jail under Realignment; in fact, section 4852.06 expressly references probation.

The current version of section 4852.06 must be applied in Miller’s case. Miller argued that the version of section 4852.06 in effect when he filed his petition, which required proof of five years’ California residency “after a petitioner leaves prison,” rather than the current wording, which added the words “or jail,” should be applied to his petition. No part of the Penal Code is retroactive unless expressly so declared. The 2015 amendment to section 4852.06 was a procedural change that operates prospectively, including to Miller’s petition, because it was pending when the amendment took effect. In any event, even if the preceding version of the statute were applied to Miller’s petition, the result would be no different.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H043613.PDF