Filed 5/25/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY J. MILLER,

Defendant and Appellant.

 H043613

 (Santa Clara County

 Super. Ct. No. 215071)

Defendant Timothy J. Miller appeals from an order denying his petition for a 

certificate of rehabilitation and pardon under Penal Code section 4852.01 et seq. As we 

will explain, the trial court properly denied the petition because Miller did not reside in 

California when he filed it. Penal Code section 4852.06 prohibits such a petition unless 

the petitioner has resided in California for the five-year period immediately preceding the 

date of filing. 

I. BACKGROUND

A. CERTIFICATES OF REHABILITATION 

A person convicted of a felony permanently loses certain rights and privileges

under California law. Among other restrictions, convicted felons are not allowed to 

possess a firearm (Pen. Code, §29800, subd. (a)(1)), are disqualified from serving on a 

jury (Code Civ. Proc., § 203, subd. (a)(5)), and are prohibited from holding certain jobs

(see, e.g., Gov. Code § 1029 [ineligibility for employment as a peace officer]). But a 

felon can have full rights and privileges restored by obtaining a pardon from the 

Governor. (Cal. Const., art. V, § 8; Pen. Code, § 4800 et seq.; Way v. Superior Court 
2

(1977) 74 Cal.App.3d 165, 176, fn. 12 [a pardon granted after conviction removes all 

penalties and disabilities and restores civil rights].)

“During World War II, the Governor’s office was inundated with pardon 

applications received from ex-felons who were otherwise barred from serving in the 

military and working in defense industries.” (People v. Ansell (2001) 25 Cal.4th 868, 

874.) So in 1943 the Legislature enacted Penal Code section 4852.01 et seq., which 

created a procedure for persons convicted of a felony to petition the court for a

“certificate of rehabilitation.” (Stats. 1943, ch. 400, § 1, p. 1922, eff. May 13, 1943.) 

Under that procedure, a felon who has been released from incarceration and demonstrated 

good conduct for a specified period1can apply to the superior court for a certificate of 

rehabilitation. (Pen. Code, § 4852.01. Unspecified statutory references are to this code.) 

If the court finds a petitioner meets the statutory requirements, it may issue a certificate 

of rehabilitation. The certificate is sent to the Governor as an application and

recommendation for a pardon, which the Governor is authorized to grant without further 

investigation. (§§ 4852.13, 4852.16.) 

1. Penal Code Section 4852.01

This appeal arises from a felony case in which probation was granted and a county 

jail term imposed. It requires us to interpret two sections of the certificate of 

rehabilitation statutory scheme: 4852.01 and 4852.06. In 1955, section 4852.01 was 

amended to exclude from those allowed to file a petition “persons who have served time 

in county jails only.” (Stats. 1955, ch. 708, § 1, p. 1198, eff. September 7, 1955.) But in 

1976, the Legislature deleted the county jail exclusion and extended eligibility to felons

who were granted probation and whose charges were later dismissed under 

 

1

The original version of the statute provided that the duration of the rehabilitation 

period was to be determined by the Judicial Council. The modern version specifies the 

duration: five years’ residence within the state, plus an additional two to five years, 

depending on the nature of the underlying crime. (Pen. Code, § 4852.03.)
3

section 1203.4 (the statute which allows dismissal of a charge after successful completion 

of probation). (Stats. 1976, ch. 434, § 2, p. 1111, eff. July 10, 1976.)

The current version of section 4852.01 retains eligibility for felons granted 

probation, provided their charges were dismissed under section 1203.4 and they have five 

years of residence in California: “A person convicted of a felony ... the accusatory 

pleading of which has been dismissed pursuant to Section 1203.4, may file a certificate of 

rehabilitation and pardon pursuant to the provisions of this chapter if the petitioner has 

not been incarcerated in a prison, jail, detention facility, or other penal institution or 

agency since the dismissal of the accusatory pleading, 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.” (§ 4852.01, subd. (b).)

2. Penal Code Section 4852.06

Additional requirements for obtaining a certificate of rehabilitation are contained

in section 4852.06, including the one at issue here––that a petition can only be filed if the 

petitioner has resided in the state, after leaving prison or jail, for the five years 

immediately preceding the filing of the petition: “After the expiration of the minimum 

period of rehabilitation applicable to him or her and after the termination of parole, 

probation, postrelease supervision, or mandatory supervision, a person who has complied 

with the requirements of Section 4852.05 [requiring good conduct] 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. 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.”

In 1955 (when persons who had been incarcerated in county jails were excluded 

from relief), section 4852.06 did not reference probation, only parole. As part of the 
4

1976 amendments extending eligibility to non-prison cases, the statute was changed to 

provide that a petition could be filed “in the case of persons released upon parole or 

probation, after the termination of parole or probation.” (Stats. 1976, ch. 434, § 4, 

p. 1112, eff. July 10, 1976 (italics added).) And in 2015, section 4852.06 was again 

amended, to add the words “or jail,” making the “immediately preceding” residency 

requirement applicable to persons “leaving prison or jail.” (Stats. 2015, c. 378 

(A.B.1156), § 9, p. 3463, eff. Jan. 1, 2016.) 

B. UNDERLYING FACTS

In 1987, Miller was convicted in Santa Clara County of transportation or sale of 

marijuana (Health & Saf. Code, § 11360, subd. (a)), a felony. He was placed on 

probation for two years and ordered to serve 60 days in county jail. By the end of 1989, 

he had successfully completed probation. Ten years later, Miller moved from California 

to Montana, where he remained. In 2008, he applied for and was granted relief under 

section 1203.4, resulting in dismissal of the felony charge. Post-conviction dismissal of a 

charge under section 1203.4 does not, however, completely restore a felon’s civil rights

in the way that a pardon does. (§ 1203.4, subds. (a)(2) and (a)(3).)

In October 2015, while living in Montana, Miller petitioned the Santa Clara 

County Superior Court for a certificate of rehabilitation and pardon. After a hearing in 

March 2016, the trial court denied the petition by written order, reasoning that since 

Miller lived out of state, he did not meet the requirement of section 4852.06 that he reside 

in California for a five-year period immediately preceding the filing of the petition. 

II. DISCUSSION

Miller contends the trial court erred because as a felon who was granted probation

and not sentenced to prison, he is not subject to the requirement of section 4852.06 that 

he live in the state for five years immediately preceding the filing of his petition. He 

bases his argument on the version of section 4852.06 in effect at the time he filed his 
5

petition in October 2015, which described the minimum period that must immediately 

precede the filing of a petition as commencing after a petitioner leaves “prison.” 

Miller alternatively argues that even under the amended version of the statute in 

effect at the time the trial court acted on his petition in 2016 (which extended the 

immediately preceding requirement to a petitioner leaving either prison or jail), he is still 

eligible for relief because the Legislature did not intend for the “immediately preceding”

requirement to apply to probationers, but rather to felons sentenced to jail in lieu of 

prison under the Criminal Justice Realignment Act of 2011 (§ 1170(h)) (Realignment 

Act).

A. STANDARD OF REVIEW

As the underlying facts are undisputed and the appeal turns on the meaning of a

statute, we review de novo the order denying Miller’s petition. (People v. Faranso 

(2015) 240 Cal.App.4th 456, 461.) We interpret the statute using our independent 

judgment, without deference to the trial court’s ruling or reasoning. (Union Bank of 

California v. Superior Court (2004) 115 Cal.App.4th 484, 488.) 

B. THE CURRENT VERSION OF THE STATUTE MUST BE APPLIED

Miller seeks to avoid application of the current version of section 4852.06 

(effective January 1, 2016), because it provides that “[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.” That requirement would bar him from relief given his Montana residency. He 

looks instead to the version of the statute in effect at the time he filed his petition in 

October 2015, which imposed the five-year residency period immediately preceding a 

petition on petitioners leaving prison, lending support to Miller’s argument that the 

requirement does not apply to non-prison cases.

Miller cites no authority for the application of a previous version of the statute. 

We acknowledge that no part of the Penal Code is retroactive unless expressly so 
6

declared. (§ 3.) But a law is said to operate retrospectively only when it “defines past 

conduct as a crime, increases the punishment for such conduct, or eliminates a defense to 

a criminal charge based on such conduct.” (Tapia v. Superior Court (1991) 

53 Cal.3d 282, 288.) A law governing procedure to be followed in the future still 

operates prospectively, even when it relates to facts existing before its enactment. (Ibid.) 

The California Supreme Court has therefore held that an amendment to the statutory 

procedure for obtaining a certificate of rehabilitation is not “retroactive,” even when the 

amendment results in a previously eligible defendant being barred from relief. (People v. 

Ansel, supra, 25 Cal.4th at p. 885.) 

The 2015 amendment to section 4852.06 changes the eligibility requirements for a

certificate of rehabilitation by applying the five-year immediately preceding residential 

requirement to persons released from either “prison or jail.” Even applied to past facts, 

such as Miller’s decades-old conviction and residence history, the amendment is a 

procedural change operating prospectively. Its description of the category of persons

eligible to bring a petition applies to all proceedings occurring after its enactment––

including the petition in this case because it was still pending on the effective date of the 

amendment. We will therefore apply the current version of section 4852.06.

2

 

C. THE PETITION IS BARRED BY SECTION 4852.06

Defendant argues that the requirements in section 4852.06 do not apply to him 

because he was granted probation and not sentenced to prison. Well-settled principles

govern our review. “ ‘ “Our primary task in interpreting a statute is to determine the 

Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the 

words of a statute, as the most reliable indicator of legislative intent.” ’ ” (Thompson v. 

 

2 We note that the trial court appears to have applied the version of the statute that 

was in effect at the time Miller filed his petition. Since our review is de novo we are

unconcerned with the trial court’s reasoning, and its application of the earlier version of 

the statute is of no consequence to our decision. 
7

Ioane (2017) 11 Cal.App.5th 1180, 1199.) When examining the words of the statute, we 

give them a plain and commonsense meaning. (People v. Scott (2014) 58 Cal.4th 1415, 

1421.) 

The statutory language at issue here provides: “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.” (§ 4852.06.) The word “immediately” means “without interval of time.” 

(Webster’s 3d New Internat. Dict. (1993) p. 1198.) Under the plain meaning of

section 4852.06, there can be no interval of time between the minimum five years’ 

residency in California following release from incarceration, and the filing of a petition 

for a certificate of rehabilitation. There was an interval of time––over fifteen years––

between when Miller lived in California following his incarceration and when he filed the

petition. He is therefore barred from relief by section 4852.06. 

In Miller’s view, his case is governed solely by section 4852.01, subdivision (b). 

He sees that provision as sufficient to qualify him for a certificate of rehabilitation, 

because it applies to felons whose accusatory pleading has been dismissed under 

section 1203.4 (as his was), and it does not contain the “immediately preceding”

residency requirement. Miller is correct that nothing in section 4852.01, subdivision (b) 

makes him ineligible for a certificate of rehabilitation. But a number of eligibility 

requirements are found outside section 4852.01. (People v. Ansell, supra, 25 Cal.4th at 

p. 875 [“Several provisions make clear that a person is ‘ineligible to ... petition for a 

certificate of rehabilitation’ (§ 4852.03, subd. (b)), and that no such petition ‘shall be 

filed’ (§ 4852.06), unless and until the foregoing requirements are met. (See § 4852.01, 

subds. (a)–(c).)’”].) The requirement that renders Miller ineligible is found only in 

section 4852.06. Miller’s position that we must read section 4852.01, subdivision (b) in 

isolation, while ignoring section 4852.06, is at odds with our task of statutory 

interpretation. (See Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 
8

632 [“[W]e consider the language of the entire scheme and related statutes, harmonizing 

the terms when possible.”].) Indeed, section 4852.01, subdivision (b) expressly provides 

that it is to be read in conjunction with the other sections contained in that chapter of the 

Penal Code: “A person convicted of a felony ... 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 ... .” (Italics added).

Miller urges that the Legislature did not intend the “immediately preceding”

requirement of section 4852.06 to apply to persons who were incarcerated in county 

jail—despite the amended language now referencing both prison and jail—because the 

words “or jail” were added only to conform the statute with the changes in law effected 

by the Realignment Act [requiring that sentences for certain felonies be served in county 

jail, rather than state prison]). Since he was not sentenced under the Realignment Act, he 

argues that section 4852.06 does not apply to him. In support of that argument, he cites 

legislative history materials for the amendment to section 4852.06. But when the plain 

meaning of a statute is clear, as it is in this case, we are not at liberty to consider extrinsic 

aids such as legislative history to ascertain the intent of the Legislature. (Soil v. Superior 

Court (1997) 55 Cal.App.4th 872, 875.) We may do so only when the language is 

ambiguous. (Ibid.) Miller does not claim that the language imposing the “immediately 

preceding” requirement is ambiguous, and we do not believe it is. 

Even if we were to consider legislative history in this situation, we would still not 

disregard the language of the statute itself––the most reliable indicator of what the 

Legislature intended––by writing the words “or jail” out of it, as Miller’s interpretation 

would require us to do. We find no indication that applying section 4852.06 to a felon 

who was granted probation offends the purpose of the statutory scheme; rather, it is

entirely consistent with it. The first sentence in section 4852.06 (as amended in 1976 

when the Legislature extended eligibility to non-prison cases) specifically references 

probation: “After the expiration of the minimum period of rehabilitation applicable to 
9

him or her and after the termination of parole, probation, postrelease supervision, or 

mandatory supervision ... .” (Italics added). The reference to probation precludes the 

possibility that the Legislature intended the requirements of that section to apply only to

persons incarcerated in prison or those sentenced under the Realignment Act, as 

probationers do not fall within either category. Further, to the extent we were to consider 

extrinsic sources, our interpretation is supported by an Attorney General opinion rendered 

shortly after the certificate of rehabilitation statutes first went into effect. As noted by the 

trial court in its order, in August 1943 the Attorney General opined that “applicants 

residing out of the state, who otherwise would be eligible, cannot invoke the benefits of 

the Act.” (2 Ops.Cal.Atty.Gen. 98, 101 (1943).) The Legislature is presumed to be 

aware of the Attorney General’s construction of a statute, and when no corrective 

measures are taken to adopt changes addressing that construction, it is likely it intended 

the statute to be interpreted in the manner described in the Attorney General’s opinion. 

(People v. Gjersvold (2014) 230 Cal.App.4th 746, 751.) The Legislature has been aware 

for over seventy years that, in the Attorney General’s view, the certificate of 

rehabilitation statutes require a person to live in California at the time of filing a petition. 

It has never made any changes to correct that interpretation, or to state that the 

requirement does not extend to probation cases. 

In arguing he is not subject to section 4852.06, Miller relies on People v. Jones 

(1985) 176 Cal.App.3d 120, 130–131, a case that examined a certificate of rehabilitation 

eligibility condition not at issue here: the requirement under what is now 

section 4852.01, subdivision (b) that probationers whose charges were dismissed under 

section 1203.4 may file a petition only if they have since remained free of incarceration. 

That requirement applies to probationers only; no such requirement is found in the 

statutory scheme for a person sentenced to prison. Confronting an equal protection 

challenge, Jones held that the two relevant groups––felons who were granted probation 

and obtained section 1203.4 relief, on the one hand, and those sentenced to prison, on the 
10

other––are not similarly situated, and there is a rational basis for the statute’s different 

treatment of them.

3

 Miller argues the distinction between the two groups that was 

recognized in Jones supports his view that section 4852.01, subdivision (b) contains the 

eligibility conditions for probationers, whereas section 4852.06 applies only to prison 

cases. Miller’s conclusion does not follow from his premise. Simply because the 

Legislature imposed an additional eligibility requirement for probationers in section 

4852.01, subdivision (b), does not mean that the “immediately preceding” residency 

requirement in section 4852.06 does not apply to probationers. To the contrary, the plain 

meaning of the language in section 4852.06 indicates it applies to both probation and 

prison cases. 

Miller also argues that it would be reasonable for the Legislature to exclude from 

the residency requirement probationers who obtained relief under section 1203.4. He 

points out that those former probationers have already undergone the application process 

for a section 1203.4 dismissal, a procedure involving at least some investigation into the 

petitioner’s background and recent conduct, so it is logical the requirements for later 

obtaining a certificate of rehabilitation should be less stringent for them. But while that 

might be a reasonable policy choice for the Legislature to have made, it is not reflected in

the statute. Reading the statutory scheme as a whole leads to the conclusion that in order 

to obtain a certificate of rehabilitation, a probationer must, among other things, have 

received a dismissal under section 1203.4 (see section 4852.01) and have resided in 

California for five years immediately preceding the petition (see section 4852.06).

We note that though we have applied the current version of section 4852.06, the 

result would likely be no different under the previous version. We must view the 

 

3

The California Supreme Court recently decided People v. Chatman (2018) 

4 Cal.5th 277, 290 which assumed without deciding that, contrary to the conclusion 

reached in Jones, the two groups are similarly situated. Like Jones, though, the Supreme 

Court found a rational basis for distinguishing between the two groups and therefore no 

equal protection violation. 
11

statutory scheme as a whole and harmonize all its provisions with the goal of achieving 

the Legislature’s intent. (Riverside County Sheriff’s Department v. Stiglitz, supra, 

60 Cal.4th at p. 632.) Viewing the statutory language in context, it does not appear that 

the Legislature intended to exclude probationers from the “immediately preceding”

residency requirement of section 4852.06, even before the words “or jail” were added in 

2015. For many years, the certificate of rehabilitation procedure completely excluded 

those, like Miller, who served time only in jail. It was not until 1976 that the relief was 

extended to felons who were granted probation and obtained dismissal under section 

1203.4. (Stats. 1976, ch. 434, § 2, p. 1111, eff. July 10, 1976.) When eligibility was 

extended to probationers by amending section 4852.01, language was simultaneously

added to section 4852.06 to reflect the additional category of eligible felons. (Stats. 

1976, ch. 434, § 4, p. 1112, eff. July 10, 1976 [amending section 4852.06 to add the 

language in bold type: “[A]fter the expiration of the minimum period of rehabilitation 

applicable to him (and, in the case of persons released upon parole or probation, after the 

termination of parole or probation)... .” (Italics added.)].) Given the correlation of those 

amendments, a plausible explanation for not concurrently updating the language of the 

“immediately preceding” clause to refer to those released from jail as well as prison is 

simply legislative oversight. Regardless, the question of whether the previous version of 

section 4852.06 would have applied to a case where a petitioner was incarcerated in

county jail is an academic one, because the current version contains language clearly 

making it applicable to both prison and jail cases.

Miller alternatively contends that even if it applies to him, section 4852.06 does 

not set forth mandatory conditions for the filing of a petition, but rather is merely a 

permissive venue statute. He relies on language providing that “a person who has 

complied with the [good conduct] requirements of Section 4852.05 may file in the 

superior court of the county in which he or she then resides a petition ... for a certificate 

of rehabilitation under this chapter.” He posits that since the statute says a person may 
12

file a petition in his or her county of residence, its purpose is only to provide an 

additional venue option for the filing of a petition. Miller is correct that the language of 

the statute is permissive––but that is simply because a person who meets the described 

criteria is never required to seek a certificate of rehabilitation; he or she may elect to do 

so. Once a person does proceed with filing a petition, the conditions in section 4852.06

are mandatory, including the venue provision requiring filing in the county of residence. 

(See People v. Ansell, supra, 25 Cal.4th at p. 875 [“Proceedings begin when a qualified 

person petitions for a certificate of rehabilitation in the superior court of the county in 

which he lives.”].)

There is nothing inherently problematic about precluding out of state residents 

from obtaining a certificate of rehabilitation. Although the right to travel recognized 

under the United States Constitution obligates a state to treat temporary visitors without 

discrimination, that “do[es] not impose a reverse obligation on a state to continue to care 

for its former residents.” (People v. Parker (2006) 141 Cal.App.4th 1297, 1307.) 

Further, it is permissible for California to “require a significant attachment to the state as 

a condition of obtaining substantive relief in its courts.” (Id. at p. 1309.) And 

conditioning the ability to petition for a certificate of rehabilitation on California 

residency is not unreasonable: the trial court’s fact-finding mission when deciding

whether to grant relief includes determining if the petitioner has complied with the 

requirements of living “an honest and upright life,” and exhibiting “good moral 

character.” (§ 4852.05.) Ascertaining the facts relevant to that determination is 

potentially more difficult if a petitioner lives out of state. (See § 4852.12 [empowering 

the court to ask the district attorney to investigate “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, ... and any other information the court deems necessary in 

making its determination.”].)
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Miller urges that it is unjust to deny his petition because he has demonstrated 

exemplary reform and proven himself worthy of the rewards that accompany a pardon. 

But the certificate of rehabilitation procedure that he is ineligible to pursue under the 

current circumstances is but one method of obtaining a gubernatorial pardon, so his out of 

state residency does not necessarily prevent him from being pardoned. A direct 

application to the Governor, for instance, involves no residency requirements. We do not 

express an opinion on Miller’s eligibility to seek a pardon by any other available method, 

as that question is not before us. We hold only that his out of state residency disqualifies 

him from seeking a pardon by way of the certificate of rehabilitation procedure described 

in Penal Code section 4852.01 et seq.

III. DISPOSITION

The order denying the petition for a certificate of rehabilitation is affirmed. 
____________________________________

Grover, J.

WE CONCUR:

____________________________

Premo, Acting P. J. 

____________________________

Mihara, J. 

H043613 - People v. Miller
Trial Court: Santa Clara County Superior Court, 

Case No.: 215071

Trial Judge: Hon. David A. Cena 

Attorneys for Plaintiff/Respondent:

The People

Xavier Becerra 

 Attorney General of California 

Gerald A. Engler 

 Chief Assistant Attorney General 

Jeffrey M. Laurence 

 Senior Assistant Attorney General 

Catherine A. Rivlin

 Supervising Deputy Attorney General 

Bruce M. Slavin

 Deputy Attorney General 

Attorneys for Defendant/Appellant:

Timothy J. Miller

Steve M. Defilippis

 Picone & Defilippis