Filed 8/28/20 P. v. Wolsey CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS DEVERE WOLSEY,

Defendant and Appellant.

 D075760

 (Super. Ct. No. SRD1807)

APPEAL from an order of the Superior Court of San Diego County, 

David M. Gill, Judge. Reversed with directions.

Heather L. Beugen, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Melissa 

Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and 

Respondent.

In late February 2018, defendant Thomas Devere Wolsey filed a 

petition for certificate of rehabilitation and pardon (petition) pursuant to 

Penal Code1 section 4852.01 et seq. seeking relief from his duty to register 

1 All further statutory references are to the Penal Code unless otherwise 

noted.
2

under section 290. The registration requirement stemmed from defendant’s 

December 2006 plea to one count of misdemeanor sexual battery (§ 243.4, 

subd. (e)), after he was charged in 2004 with 15 counts of misdemeanor 

possession of child pornography (§ 311.11, subd. (a)). In March 2011, 

defendant’s conviction was dismissed pursuant to section 1203.4. 

Defendant’s petition was heard on April 5, 2019. Although defense 

counsel attended the hearing, defendant—with the court’s permission—did 

not. The court asked defense counsel a series of factual questions that 

defendant ostensibly could have answered, then ruled to deny defendant’s 

petition, finding he failed to establish by a preponderance of the evidence 

that pre-petition he had continuously resided in the state for 10 years.

(§§ 4852.01, subd. (b), 4852.03, subds. (a)(1), (2) & 4852.06.) 

In making this finding, the record shows the court substantially relied 

on an investigative report prepared by the People showing that defendant in 

2016 and 2017 had registered businesses outside California; that in October 

2017 he had registered a vehicle in Utah in connection with one of those 

businesses; and that he recently had moved from Temecula, California, to 

Cardiff by the Sea, California (Cardiff), after selling his Temecula home. 

Defendant appealed.

While this appeal was pending, defendant filed a petition for writ of 

mandate (D077355) (writ petition), seeking to compel the trial court to set 

aside its order denying his petition, and hold a new hearing to allow him the 

opportunity—with effective counsel—to establish the residency requirement; 

or alternatively, requesting this court issue an order to show cause directing 

the trial court to hold an evidentiary hearing on the claims raised in his writ 

petition. In addition to a request for judicial notice of the record in this 

appeal (see Evid. Code, §§ 452, subd. (d)(1), 453 & 459, subd. (a)), defendant 
3

lodged a series of exhibits in support of his writ petition that he claimed were 

material to the residency requirement issue, including utility bills and 

related documents showing he resided in the Cardiff home after moving from 

Temecula, which exhibits should have been submitted for the court’s 

consideration at the petition hearing.

As we explain, we conclude the court abused its discretion in finding 

defendant’s registration of two out-of-state businesses and a vehicle showed 

he was not continuously residing in the state for 10 years pre-petition. We 

further conclude the court’s finding defendant was not residing in the Cardiff 

home, after selling his Temecula house, is not supported by substantial 

evidence. 

Because the writ petition makes clear there was additional evidence 

available to the trial court in connection with the residency issue, which is 

essentially a procedural condition; and because the trial court, as opposed to 

this court, is uniquely qualified to take evidence and make factual 

determinations as the trier of fact; we conclude the cause should be remanded 

for the trial court to consider anew—based on all available evidence, 

including the exhibits defendant lodged in support of the writ petition—

whether he satisfied the 10-year statutory residency requirement.2

Reversed.

2 As such, as provided in a separate order issued in conjunction with this 

opinion, we dismiss as moot defendant’s writ petition. In addition, we 

express no opinion whether defendant on remand can satisfy the residency 

requirement, and, if so, any of the other additional statutory conditions to 

support his claim for relief. 
4

BACKGROUND

We briefly summarize the facts leading up to defendant’s December 

2006 guilty plea. A November 2004 incident report filed by a detective of the 

Riverside County Sheriff’s Department noted a warrant issued in late 

October 2004 for a search of defendant’s home in Temecula for “computers 

and related items, which could contain images of child pornography 

downloaded from the Internet.” During the search, several items were 

located leading officers to conclude defendant then was teaching at a middle 

school, a conclusion confirmed by the school. During the search, officers 

found several expandable file folders in an office closet, which included a 

membership confirmation for a website called “‘Boycock.com.’” 

A forensic examination of a computer located in defendant’s home 

revealed about 551 images of male children, about 450 being consistent with 

“child erotica.” There were many images of boys between six to 12 years of 

age engaging “in acts of sex or simulated sexual activity”; a series of about 55 

images of two boys “ages 14 to 16 engaged in oral sex and sodomy with each 

other”; multiple imagines of children ages six months to three years old in 

bathtubs; and multiple images of nude boys between six and eight years old 

“in various bondage positions.” 

As noted, defendant pleaded guilty to one count of misdemeanor sexual 

battery and agreed to register as a sex offender in exchange for the dismissal 

of all other counts. Defendant was sentenced in late December 2006 to 30 

days of local custody and 48 months of summary probation. Defendant 

completed his 30 days in custody on January 31, 2007.
5

On February 28, 20183 defendant filed his petition, seeking relief from 

his obligation to register under section 290. On August 3, 2018, the court at 

an unreported hearing ordered defendant to complete and submit a “Personal 

History Questionnaire” (hereinafter, questionnaire) to the district attorney’s 

office, noting if defendant objected to any questions in the questionnaire he 

could “skip” them and the matter would be addressed at a subsequent 

hearing. 

At an unreported October 5, 2018 ex-parte hearing, the court noted it 

had received defendant’s August 27, 2018 letter and based thereon, appointed 

the public defender’s office to represent defendant in his petition. (See

§ 4852.08.4) The court set the hearing on the petition for January 4, 2019.

On January 4, 2019, at defendant’s request the court continued the 

petition hearing to March 15, 2019. Defendant was present at the hearing 

and represented by counsel. The January 4 minute order provides that if 

defendant “is out of the county counsel may appear on his behalf.” The 

petition hearing was further continued to April 5 to allow the district 

3 The parties agree defendant filed his petition on February 28, and not 

on December 28, 2018, which is the date stamped on the petition.

 

4 This statute provides in part: “During the proceedings upon the 

petition, the petitioner may be represented by counsel of his or her own 

selection. If the petitioner does not have counsel, he or she shall be 

represented by the public defender . . . .”
6

attorney’s office to complete an updated court-ordered investigative report. 

(See § 4852.12.5) 

As noted, defendant appeared through defense counsel at the April 5 

petition hearing. The record shows the court focused almost exclusively on 

the March 29, 2019 investigative report prepared by the district attorney’s 

office (hereinafter, report). The court noted the report raised a “couple of 

problems” with the residency requirement based on the following: defendant 

in April 2016 and early October 2017, registered businesses in Colorado and 

Utah, respectively; in mid-October 2017 he also registered a vehicle in Utah 

and, as provided in the report, (allegedly) “gave a residence address in Saint 

George, Utah”; and in August 2018, after he filed the petition, he “moved to 

New Cairo, Egypt” to teach at a university, declaring that the move was a 

“secondary residence,” but returned to California in December 2018.

5 This statute provides: “(a) In a proceeding for the ascertainment and 

declaration of the fact of rehabilitation under this chapter, the court, upon 

the filing of the application for petition of rehabilitation, may request from 

the district attorney an investigation of the residence of the petitioner, the 

criminal record of the petitioner as shown by the records of the Department 

of Justice, any representation made to the court by the applicant, the conduct 

of the petitioner during the period of rehabilitation, including all matters 

mentioned in Section 4852.11, and any other information the court deems 

necessary in making its determination. The district attorney shall, upon 

request of the court, provide the court with a full and complete report of the 

investigations. [¶] (b) In any proceeding for the ascertainment and 

declaration of the fact of rehabilitation under this chapter of a person 

convicted of a crime the accusatory pleading of which has been dismissed 

pursuant to Section 1203.4, the district attorney, upon request of the court, 

shall deliver to the court the criminal record of petitioner as shown by the 

records of the Department of Justice. The district attorney may investigate 

any representation made to the court by petitioner and may file with the 

court a report of the investigation including all matters known to the district 

attorney relating to the conduct of the petitioner, the place and duration of 

residence of the petitioner during the period of rehabilitation, and all known 

violations of law committed by the petitioner.”
7

Defense counsel argued that merely because defendant had registered 

businesses and a vehicle in another state did not mean defendant was not 

continuously residing in California, and that such businesses, in any event, 

“had failed.” Regarding the vehicle registration in Utah, defense counsel

noted that the same vehicle had been parked at defendant’s home in Cardiff, 

which the court confirmed in recognizing the vehicle had been seen by 

investigators at that location for an “extended period of time”; that the Utah 

vehicle registration form listed defendant’s Cardiff address as the “mailing 

address”; and that there was no evidence defendant resided in Utah, 

including at the address associated with the registered vehicle, or received 

mail or paid utilities at that address. 

The court found defense counsel’s explanation regarding the Utah 

vehicle registration unpersuasive. The court also found defendant’s “ties and 

connections” to the Cardiff residence “slim.” As such, the court denied 

defendant’s petition, finding he had failed to satisfy by a “preponderance of 

the evidence” the statutory residency requirement.6

DISCUSSION

A. Statutory Overview of Certificate of Rehabilitation

Under California law, a person convicted of a crime may request a 

Governor’s pardon through two statutory avenues: (1) a pardon application 

filed directly with the Governor (§ 4800 et seq.) and (2) a petition for 

certificate of rehabilitation filed in the superior court (§ 4852.01 et seq.). 

(People v. Ansell (2001) 25 Cal.4th 868, 871, 873–876, 890 (Ansell).) The 

latter petition, if granted, becomes both an automatic application for a full 

6 The court also noted, but did not decide, a “secondary issue” regarding 

defendant’s compliance with the section 290 registration requirement, as 

identified in the report. We thus deem it unnecessary to address in this 

opinion this “secondary issue.”
8

pardon by the Governor and a judicial recommendation of such. (§ 4852.16; 

Ansell, at pp. 875–876, 891.) A person convicted of a crime becomes eligible 

for a certificate of rehabilitation after the successful completion of his or her 

sentence and the expiration of an additional period of rehabilitation.

(§§ 4852.03, subd. (a), 4852.06.) The person must show he or she is living an 

“honest and upright life,” conducting “himself or herself with sobriety and 

industry,” exhibiting a “good moral character,” and conforming to and 

obeying the “laws of the land.” (§ 4852.05; see Ansell, at p. 875.)

After a petition is filed, the trial court may compel the production of 

documents, direct the district attorney to investigate, and hold an evidentiary 

hearing. (§§ 4852.1, 4852.11, 4852.12; Ansell, supra, 25 Cal.4th at p. 875.) 

“[I]f after hearing, 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, and 

recommending that the Governor grant a full pardon to the petitioner.”

(§ 4852.13, subd. (a).) Thus, for the petition to be granted, the court must 

find the petitioner has rehabilitated. (Ansell, at pp. 875–876.)

As relevant here, subdivision (a) of section 4852.03 provides: “The 

period of rehabilitation commences upon the discharge of the petitioner from 

custody due to his or her completion of the term to which he or she was 

sentenced or upon his or her release on parole, postrelease community 

supervision, mandatory supervision, or probation, whichever is sooner. For 

purposes of this chapter, the period of rehabilitation shall constitute five 

years’ residence in this state, plus a period of time determined by the 

following rules: [¶] (2) An additional five years in the case of a person 

convicted of committing an offense or attempted offense for which sex 
9

offender registration is required pursuant to Section 290 . . . .” (Italics 

added.)

Also relevant here is section 4852.06, which provides: “After the 

expiration of the minimum period of rehabilitation a 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 or in which he or she was 

convicted of a felony or of a crime the accusatory pleading of which was 

dismissed pursuant to Section 1203.4, 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. A petition 

shall not be filed until and unless the petitioner has continuously resided in 

this state, after leaving prison or jail, for a period of not less than five years 

immediately preceding the date of filing the petition.” (Italics added.)

Thus, under the statutory scheme, to satisfy the residency requirement 

defendant was required to establish pre-petition that he had continuously 

resided in the state for 10 years since he completed his 30-day jail sentence in 

January 2007. (See §§ 4852.03, subd. (a)(1), (2) & 4852.06.)

B. Standard of Review

“Aside from the statutory interpretation questions, a petition for a 

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. [Citations] ‘The standard test for 

ascertaining an abuse of that discretion is whether the court’s decision 

exceeded the bounds of reason.’ [Citation.]” (People v. Zeigler (2012) 211 

Cal.App.4th 638, 667 (Zeigler).) A trial court’s factual findings in connection 

with such an exercise of discretion are reviewed for substantial evidence. 

(See People v. Lockwood (1998) 66 Cal.App.4th 222, 229 (Lockwood).)
10

“ ‘ “ ‘ “[However, t]he discretion of a trial judge is not a whimsical, 

uncontrolled power, but a legal discretion, which is subject to the limitations 

of legal principles governing the subject of its action, and to reversal on 

appeal where no reasonable basis for the action is shown.” ’ ” ’ ” (Zeigler, 

supra, 211 Cal.App.4th at p. 667.) A court abuses its discretion ”if 

it applies improper criteria or makes incorrect legal assumptions. [Citation.]” 

(In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497, italics omitted 

(Fajota); accord In re Charlisse C. (2008) 45 Cal.4th 145, 159.) Moreover, “[i]f

the record affirmatively shows the trial court misunderstood the 

proper scope of its discretion, remand to the trial court is required to permit 

that court to exercise informed discretion with awareness of the full scope of 

its discretion and applicable law. [Citations.]” (F.T. v. L.J. (2011) 194 

Cal.App.4th 1, 26, italics omitted.) 

C. Analysis

We conclude the court improperly relied on defendant’s registration of 

out-of-state businesses in 2016 and 2017 in finding he did not satisfy the 10-

year continuous residency requirement. California, like all other states 

(including Colorado and Utah, where defendant had registered his two 

businesses), “has a legitimate interest in attracting out-of-state companies to 

do business within the state, both to obtain tax and other revenue that such 

businesses may generate for the state, and to advance the opportunity of 

state residents to obtain employment and the products and services offered 

by out-of-state companies.” (See McCann v. Foster Wheeler LLC (2010) 48

Cal.4th 68, 91–92.) In our view, defendant’s registration of two out-of-state 

businesses has no bearing on whether he satisfied section 4852.06. 

In addition, we conclude the court also improperly relied on defendant’s 

October 16, 2017, out-of-state vehicle registration in finding he did not satisfy 
11

section 4852.06. Defendant disclosed on the questionnaire that the legal 

“owner” of the vehicle, a Ford truck, was “Cardinal West, LLC,” his 

“company”; that defendant on October 6, 2017, had registered Cardinal West, 

LLC as a business with the Utah Department of Commerce, had listed the 

address of that business as “3143 S. 840 E.; Saint George, UT 847908659,”

and had stated the “mailing address” for the vehicle was a post office box 

located in Cardiff; that an insurance company located in San Diego insured 

the vehicle, with evidence of coverage attached; and that the print-out 

attached to the investigator’s online business search for Cardinal West, LLC 

showed “3143 S 840 STE 355[,] Saint George, UT 84790” as the company’s 

“ADDRESS,” not its “residence” address. (Bold-face type in original). 

Moreover, the record shows the court relied on the representation in 

the report that defendant identified his “residence” as being in Saint George, 

Utah, when registering the truck, when in fact that address was the business 

address of Cardinal West, LLC, as noted. The record further shows this 

misinformation was key to the court’s finding on the residency requirement 

issue. As such, that finding cannot stand. (See Lockwood, supra, 66 

Cal.App.4th at p. 229 [applying substantial evidence standard].)

In denying his petition, the court also relied on the fact defendant in 

July 2018 had a “second” address in Cairo, Egypt, where he taught graduatelevel courses at the American University of Cairo until about December 2018. 

The undisputed evidence, however, shows defendant left for Cairo after the 

“expiration of the minimum period of rehabilitation” required by section 

4852.06. As a matter of statutory interpretation, we independently conclude 

the court incorrectly considered defendant’s teaching in Cairo in denying his 

petition. (See People v. Prunty (2015) 62 Cal.4th 59, 61 [interpretation of a 

statute is a question of law requiring de novo review]; see also People v. Scott 
12

(2014) 58 Cal.4th 1415, 1421 [noting when statutory language is clear and 

unambiguous, the plain meaning of the statute controls].)

Finally, substantial evidence does not support the court’s finding 

defendant’s connection to Cardiff—beginning in June 2017 when he moved to 

the area after selling his house in Temecula, to February 28, 2018, the date 

he filed his petition—was “slim.” (See Lockwood, supra, 66 Cal.App.4th at

p. 229.) On the questionnaire, defendant identified the Cardiff residence as 

his “Home Address.” He also included the name and address of his landlord, 

who defendant also listed as a personal reference. 

Defendant also disclosed on the questionnaire that he was registered to 

vote in “San Diego County, Encinitas, CA”; that on July 25, 2017, shortly 

after moving from Temecula, he went to the San Diego County Sheriff’s 

Department and listed his Cardiff home, which he noted was a single-family 

residence, as his new section 290 registration address; and that he used the 

same Cardiff address on March 15, 2018, when he fulfilled his annual 

registration requirement. 

But that’s not all. The record shows when investigators’ attempted to 

contact defendant at the Cardiff home in preparation of the report, they 

noted defendant’s Ford truck parked outside; that in January 2018, when an 

investigator met with defendant at the Cardiff residence, defendant 

explained his Ford truck had Utah license plates because he owned a 

business there; and that the investigator then noted defendant also owned a 

2018 Ford Fusion, with California license plates, which also was parked at 

the Cardiff residence. On this record, we thus conclude the court’s finding 

that defendant had “slim” “ties” to the Cardiff home is not supported by 

substantial evidence. (See Lockwood, supra, 66 Cal.App.4th at p. 229.) 
13

As we have noted, we stop short of finding defendant satisfied the 10-

year continuous residency requirement in connection with his petition. 

Instead, we remand the cause to the trial court to reconsider that issue anew.

DISPOSITION

The April 5, 2019 order denying defendant’s petition for certificate of 

rehabilitation is reversed and the matter is remanded for reconsideration 

consistent with this opinion.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.