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Name: People v. Shepard
Case #: C077166
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/19/2015

Petitioner waived his right to a hearing on his petition for certificate of rehabilitation when he left courthouse without participating in the hearing on the petition. Shepard, who had a 1991 rape conviction and convictions for other offenses, filed a petition for certificate of rehabilitation (Pen. Code, § 4852.01) in 2014. The prosecution opposed the petition in a written report, arguing that Shepard took no responsibility for the rape and claimed his attorney coerced a plea. Shepard asserted that the court bailiff handed him the court’s tentative ruling when he came to court for his hearing, told him the petition had already been denied, and sent him home. At the hearing on the petition later that day, neither Shepard nor his attorney appeared. The petition was denied. Shepard appealed, alleging he was denied due process and the right to an attorney when the court denied his petition in his absence. Held: Affirmed. Section 4852.01 et seq. provides a procedure whereby convicted felons may seek a certificate of rehabilitation if they have completed their sentence and have undergone a sustained period of rehabilitation in California. The petitioner has a statutory right to counsel. Here, Shepard was not denied due process because he had notice of the hearing and an opportunity to be heard. He was present when the hearing was scheduled and actually showed up at the time and place set for the hearing. “Had he waited for the hearing to be called, he could have fully participated therein.” His assertion that the bailiff sent him home was not supported by the record. Shepard may file a new petition and either retain counsel or have an attorney appointed to represent him on further proceedings.

When a petitioner has been given notice of the right to counsel and does not attend the hearing on his petition for a certificate of rehabilitation, the trial court may conclude that the petitioner has waived his right to counsel. The Court of Appeal requested supplemental briefing on the issue of whether Shepard was deprived of his right to counsel since it did not appear from the record of the hearing that he was represented by counsel at that time. The record was then augmented with a transcript that showed Shepard was represented by counsel at a court date about one week prior to the hearing date. This satisfied the terms of Penal Code sections 4852.04 and 4852.08. The Court of Appeal also concluded that, when neither Shepard nor his public defender appeared at the hearing after receiving notice, the trial court did not have a duty to defer ruling on the petition until either both were present or defendant entered an on-the-record waiver of the right to counsel. Under these circumstances, it would be inconsistent with the certificate of rehabilitation procedure to require the trial court to defer ruling on the petition. Certificate of rehabilitation proceedings are civil in nature, the statutory scheme erects high hurdles for the petitioner to surmount, a petitioner is not entitled to a certificate of rehabilitation, and the “denial of the certificate has no effect on the petitioner at all.” An on-the-record waiver of the right to counsel is not required.