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Filed 7/21/15 P. v. Gonzalez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO ALBERT GONZALEZ,

Defendant and Appellant.

E060942

(Super.Ct.No. FELRS1303880)

OPINION

APPEAL from the Superior Court of San Bernardino County. Stanford E. 

Reichert, Judge. Affirmed.

Law Offices of Robert D. Salisbury and Robert Salisbury for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Arlene A. Sevidal, Collette C. Cavalier and Kristen A. Hernandez, Deputy Attorneys 

General, for Plaintiff and Respondent.
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In 1988, defendant and appellant Mario Albert Gonzalez pled guilty to sexual 

penetration with a foreign object. (Pen. Code, § 289, subd. (a)).1 The trial court 

sentenced him to eight years in state prison, consisting of a three-year term for the section 

289 offense and a five-year enhancement for causing great bodily injury (former 

§ 12022.8). Defendant was also required to register as a sex offender. (§ 290.) After 

completing his sentence, defendant was discharged from state prison, and he was released 

from parole in January 1995.

On November 20, 2013, defendant petitioned the trial court for a certificate of 

rehabilitation. (Pen. Code, §§ 4852.01 et seq.) The trial court denied the request, finding 

defendant ineligible because he had been arrested for possession of a controlled substance 

in 2008. (Health & Saf. Code, § 11364, subd. (a).)

On appeal, defendant contends that the trial court abused its discretion because the 

2008 arrest did not lead to a conviction and, in fact, the charges that were filed in relation 

to the arrest were dismissed in the interests of justice prior to trial. We disagree with his 

position and affirm the judgment.

 

1

 Unless otherwise specified, all statutory references are to the Penal Code.
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FACTUAL2 AND PROCEDURAL BACKGROUND

In the 1988 trial court proceedings, defense counsel indicated that defendant had 

no recollection of the offense because he had committed it after ingesting PCP. The 

victim was defendant’s common-law wife. In support of a request that defendant be 

committed to the California Rehabilitation Center (CRC) for drug treatment instead of 

sentenced to state prison, defense counsel asserted that the victim was also “involved in 

drugs,” and that defendant felt “tremendous remorse” for what he had done. The 

prosecutor responded that she knew that the victim required reconstructive surgery after 

the assault, that she had lost all bladder control, and that her injuries left her unable to 

conceive. The trial court denied the request for commitment to CRC “by reason of [his]

prior record . . . of criminality”; at the time, defendant had at least nine prior convictions.

At a January 9, 2014 hearing on defendant’s petition for a certificate of 

rehabilitation, the trial court ordered the San Bernardino County District Attorney Bureau 

of Investigations to prepare an investigation report. On January 30, 2014, defendant 

executed, under penalty of perjury, an “applicant questionnaire” provided by the bureau 

of investigations. In that document, he attested that his 2008 arrest was for either 

 

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 The People omitted a factual recitation from the respondent’s brief and instead 

assert that the record contains no facts regarding the underlying offense. However, the 

clerk’s transcript on appeal contains the transcripts of the hearings at which defendant 

pled guilty and was sentenced. At those hearings, the prosecutor and defense counsel 

made statements about the facts of the underlying offense. As these transcripts appear to 

have been attached as exhibits to defendant’s petition, we assume they were before the 

trial court when it denied the petition. We therefore briefly summarize what counsel said 

about the offense at the plea and sentencing hearings.
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“possession of item” or “possession of mis. item.” He also indicated that the disposition 

of the 2008 case was either “cleared’ or “dismissed.” Defendant provided no additional 

details about the 2008 arrest or the disposition of the case that followed it. He did, 

however, offer a description of the events that led to the nine convictions he acquired 

before committing the underlying offense. He apologized for not remembering any 

details about some of these but indicated that others were the result of drug use.

The bureau of investigations report disclosed that defendant was arrested for 

possession of a controlled substance on June 8, 2008, that charges were filed, and that the 

case was dismissed. The report concluded that defendant was ineligible for a certificate 

of rehabilitation because the 2008 arrest showed that he had failed to “conform to and 

obey the laws of the land” in the 10 years before the petition was filed.

On March 19, 2014, the trial court adjudicated defendant’s petition for certificate 

of rehabilitation. Defendant was present, and the attorney representing him presented no 

argument or evidence. The prosecutor confirmed that the 2008 arrest led to misdemeanor 

charges under Health & Safety Code section 11364 and that the case had been dismissed.

However, she also indicated she did not know “if he did PC 1000[3] or some such thing 

like that.” The trial court adopted the recommendation of the bureau of investigations 

without further comment and denied the petition.

 

3

 Section 1000 et seq. allows for deferred entry of judgment for certain drugrelated offenses, provided the defendant completes an approved drug rehabilitation 

program after pleading guilty.
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ANALYSIS

Defendant argues the trial court abused its discretion by refusing to issue a 

certificate of rehabilitation because he had proved his good moral character and 

compliance with the law. As we explain post, we are unpersuaded.

“The Penal Code provides a procedure for applying for a certificate of 

rehabilitation for ‘convicted felons who have successfully completed their sentences, and 

who have undergone an additional and sustained “period of rehabilitation” in California.’ 

(People v. Ansell (2001) 25 Cal.4th 868, 875; see also §§ 4852.01, 4852.03.) To obtain 

the rehabilitation certificate, the statute requires that during the rehabilitation period 

‘[t]he person shall live an honest and upright life, shall conduct himself . . . with sobriety 

and industry, shall exhibit a good moral character, and shall conform to and obey the 

laws of the land.’ (§ 4852.05.)” (People v. Failla (2006) 140 Cal.App.4th 1514, 1518 

(Failla) [Fourth Dist., Div. Two].) The person seeking a certificate of rehabilitation 

bears the burden of proving he or she meets this standard. (§ 4852.13, subd. (a).) 

“The hurdles erected by the Legislature to obtain a certificate of rehabilitation are 

not intended to be easily surmounted.” (People v. Blocker (2010) 190 Cal.App.4th 438, 

445 (Blocker).) For example, the fact that a decision to grant a certificate of 

rehabilitation often results in the cancellation of sex offender registration requirements 

(§ 290.007) “is a consequence that could naturally give a trial court pause.” (Blocker, at 

p. 445.) Similarly, a refusal to admit liability for an underlying offense may, even 

standing alone, support a trial court’s denial of a petition for certificate of rehabilitation. 

(Id. at pp. 444-445.)
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“The decision whether to grant or deny a petition for a rehabilitation certificate 

rests in the sound discretion of the trial court, and the court’s ruling will not be disturbed 

on appeal unless there is a clear showing of abuse of discretion.” (Failla, supra, 140 

Cal.App.4th at p. 1519.) In exercising discretion to determine whether a person seeking a 

rehabilitation certificate has proved he or she has “obey[ed] the laws of the land” 

(§ 4852.05), a trial court may consider evidence of the conduct underlying a nonviolent 

drug offense even when the resulting prosecution has been dismissed because the 

defendant had successfully completed a Proposition 36 drug treatment program. (People 

v. Zeigler (2012) 211 Cal.App.4th 638, 664-666 (Zeigler).)

In this case, defendant failed to meet his burden of proving he had become 

rehabilitated for the following reasons. First, defendant admitted committing a sex 

offense that carried with it a lifetime sex offender registration requirement. That 

registration requirement could be nullified if the trial court granted the petition for 

certificate of rehabilitation. In addition, the prosecutor at the 1988 sentencing hearing 

described the victim’s injuries as particularly grievous. These factors cut in favor of 

proceeding cautiously on defendant’s petition for a certificate of rehabilitation.

Second, defendant minimized his 2008 arrest in his applicant questionnaire by 

indicating he had been arrested for possession, not of a controlled substance, but of an 

unidentified item. This may well have indicated to the trial court that defendant was not 

taking full responsibility for his actions, such that he was not living “an honest and 

upright life” (§ 4852.05) when the petition was adjudicated. 

Furthermore, both the underlying offense and the 2008 arrest related to 

defendant’s drug use. Since defendant admitted his drug use had been a factor in the 
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underlying offense and multiple other convictions, evidence that he was arrested for 

possession of a controlled substance as late as 2008 may have indicated that he had not 

fully rehabilitated.

Defendant asserts the trial court could not have relied on his 2008 arrest for 

possession of a controlled because due process principles only allow a court to consider 

arrests leading to convictions. He cites no authority for this proposition and instead 

insists in his briefs that police officers “make bad arrests ALL THE TIME.” The 

reasoning in Ziegler allows us to briefly dispose of this argument.

As we have indicated, in Ziegler, the court considered whether it was proper for a 

trial court to receive evidence of the conduct underlying a nonviolent drug offense that 

had been dismissed due to a successful diversion under Proposition 36. (Zeigler, supra, 

211 Cal.App.4th at p. 646.) This issue arose because the version of section 1210.1, 

subdivision (d), that was operative at the time stated that records pertaining to such a 

Proposition 36 arrest or conviction “ ‘may not, . . . , be used in any way that could result 

in the denial of any . . . certificate.’ ” (Id. at p. 645 [see Id. at p. 648, fn. 2, for an 

explanation of the version of the statute that was used].) The court emphasized that 

section 4582.11 requires a peace officer, upon request from a trial court faced with a 

petition for certificate of rehabilitation, to report not just convictions, but “ ‘all violations 

of law committed by [the] petitioner which may come to his knowledge.’ ” (Id. at p. 666, 

quoting section 4585.11.) Therefore, the trial court could consider the criminal conduct 

of the person petitioning for a certificate of rehabilitation, even if it could not consider a 

conviction resulting from that conduct.
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The same reasoning applies here. Section 4852.05 requires defendant to “live an 

honest and upright life,” and to “conform to and obey the laws of the land.” It does not 

state that he must be free of convictions. As in Ziegler, the contention that the trial court 

can only rely on an arrest that resulted in a conviction has no support in the statutes that 

create the procedure defendant used to request a certificate of rehabilitation. 

Disposing of defendant’s final contention on appeal, we assign little significance 

to the fact that the 2008 case against him was dismissed. As the prosecutor noted at the 

March 19, 2014 hearing on defendant’s petition for certificate of rehabilitation, the 

dismissal may have occurred for reasons other than a determination that the charge was 

unfounded. For example, defendant could have obtained deferred judgment for a 

nonviolent drug offense, which would not count as a conviction. (§§ 1000.1, subd. (d), 

1210.1, subd. (d).) It is also possible that the People were unable to locate a necessary 

witness or that some other formal evidentiary defect caused the dismissal even though 

defendant did in fact violate the law by possessing a controlled substance.

In any event, defendant, who disclosed the 2008 arrest in his applicant 

questionnaire, had an opportunity to explain the facts of the arrest, prosecution, and 

subsequent disposition. He nonetheless failed to provide any details in the applicant 

questionnaire or to offer any evidence showing that the 2008 charge lacked factual 

support. (See People v. Lockwood (1998) 66 Cal.App.4th 222, 228 [trial court may 

consider, among other things, “any documentary evidence a petitioner presents”].) 

Defendant bore the burden of proof on his petition. (Pen. Code, § 4852.13, 

subd. (a); Evid. Code, § 500.) He can therefore hardly complain that the trial court 

abused its discretion when he failed to present the trial court with all information it would 
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need to decide the extent to which the 2008 arrest constitutes proof that defendant did not 

remain free of violations of law for the 10 years before he requested a certificate of 

rehabilitation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

KING

J.