Filed 3/25/15 P. v. Rodecker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. JAYSON RODECKER, Defendant and Appellant. G050084 (Super. Ct. No. M-15256)

O P I N I O N

Appeal from a judgment of the Superi or Court of Orange County, Richard M. King, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, Meagan J. Beale, and Felicity Senoski, Deputy Attorneys General, for Plain tiff and Respondent.2 The trial court denied Jayson Rode cker’s petition for certificate of rehabilitation and pardon without prejudice (hereafter Pe tition). On appeal, Rodecker
contends the trial court abused its discreti on because other than a few traffic citations there was “ample evidence of rehabilitation.” At the hearing, Rode cker’s counsel made no response to the evidence supplied by the dist rict attorney and relied upon by the trial court. In light of this reco rd, we find no abuse of discreti on and affirm the trial court’s judgment. Rodecker may file a new petition wh en he is ready beca use the court did not designate a new waiting period. (See Pen. Code, § 4852.22.) 1
I In September 1996, then 18-year-old Rodecker pled guilty to one count of first degree burglary and was sentenced to pris on for four years. He was released on parole in September 1999. Seventeen years after the conviction, and 14 years after his release on parole, Rodecker filed his Petition, declaring under pena lty of perjury the following: “During the period of my rehabilitation, I have lived an honest and upright life, conducted myself with sobriety and indus try, and exhibited good moral character. I have conformed to and obeyed all the laws of the land. [¶] I request that the [c]ourt make its order declaring that I have been rehabilitated; and for a Certificate of Rehabilitation recommending that th e Governor of the State of California grant me a full pardon.” In support of his January 2014 Pe tition, Rodecker (who is now 35 years old) submitted several letters of recommendati on describing him as mature, responsible, hard working, respectful, honest, and trus tworthy. He provided evidence he was a diligent employee and student, a good tenant , and a man of good moral character who regretted his past mistakes. Two of the le tters were written by former law enforcement personnel. Rodecker submitted school reco rds showing he was a ttending California State

1 All further statutory references are to the Penal Code, unless otherwise indicated.3 University Long Beach (CSULB ). He maintained full-time employment while attending school. He showed he was financially re sponsible, having sa ved his earnings and purchased a condominium. On March 27, 2014, the di strict attorney filed an opposition to the Petition. The district attorney argued: “[Rodecker] has failed to demonstrate that he meets the parameters set forth by the Legislature in . . . section 4852 to qualify for a Certificate of
Rehabilitation and Pardon. While statutorily eligible for the relief requested, [Rodecker’s] criminal history and records from the court and the [d]istrict [a]ttorney’s [o]ffice indicate that [Rodecker] has had more than a few run-ins w ith police in the years since he was released from prison. In 2006 , [he] was arrested for driving under the influence [DUI], but that case (06HM03887) wa s subsequently dismissed. In 2009, [he] was the suspect in a petty theft case, but that case was rejected by the [d]istrict [a]ttorney’s [o]ffice. And [Rodecker] has had f our traffic citations in the last four years, the most recent of which . . . occurred only a few weeks ago on Marc h 5, 2014, and is currently pending. [¶] While acknowledgi ng that [Rodecker’s] contacts with law
enforcement since his release from prison have not resulte d in any further criminal convictions, except of course for the aforementioned traffic citations, the People believe that [Rodecker] is not the idea l candidate to receive a Certif icate of Rehabilitation.” In his opposition, the district atto rney referred to case authority holding there is a very high standard for determini ng whether rehabilitation ha s occurred. In light of this authority, the district attorney concluded, “[u]nles s and until some additional time passes, without any additional law enforcem ent contact with [Rodecker], the People would urge this court to deny his [P]etition.” The district attorney su bmitted documents to suppor t the opposition. With respect to the traffic citations, the oldest traffic citation, dated March 2010, was for driving at an unsafe speed for the prevailing conditions . In May and June 2012, Rodecker was cited for speed ing (in excess of the maximum 65 mph) and for failing to4 obey a posted sign for preferential lanes, which meant he drove in the carpool lane alone. In March 2014, Rodecker was again cited fo r driving alone in the carpool lane. In addition, the opposition contained copies of th e police reports relating to the underlying burglary conviction. The People did not subm it copies of the police reports concerning the DUI arrest or petty theft case. The hearing was held on April 4, 2014 . The reporter’s transcript shows the court started the hearing by stating, “All ri ght. Before the court takes the matter under submission, I’ll invite counsel to supplement the record.” Rodecker’s counsel informed the court that since filing the petition Rodeck er had obtained his bachelor of science degree from CSULB. He submitted a copy of the degree to the court. Defense counsel then advised the court of the “potential” c onsequences for Rodecker’s life if he was
unable to obtain a certificate of rehabilitation. Counsel e xplained Rodecker had applied for a job with an airline that could require in ternational travel and it may be difficult for a
felon to travel in and out of Canada without a certificate of rehabilitation. Counsel also
reminded the court that Rodecker’s last crimin al conviction was in 19 96, when he was 18 years old and he was now 35 ye ars old. Defense counsel concluded with the statement, “[A]nd that’s all I have to say on the certificat e of rehabilitation.” At the hearing, defense
counsel made no reference to the traffic convictions, the 2006 DUI arrest, or that Rodecker was a suspect in a petty theft case. After the district attorney respon ded he had nothing to add to the opposition, the court took the matter under s ubmission and then asked about the status of
Rodecker’s most recent traffic citation. Defe nse counsel stated Rod ecker was prepared to enter a guilty plea. The court noted Rodecker was eligible for traffic school and asked Rodecker if he was guilty. Rodecker replied, “Guilty.” The court ordered Rodecker to report to the clerk’s office to make arrangements for traffic school. Three days later, on April 7, 2014, the trial court issued a minute order denying the Petition without prejudice. In its minute order, the cour t recited Rodecker’s5 burden of proof under s ection 4852.05. It stated, “An individual who seeks a petition for
rehabilitation must fulfill the conduct and char acter requirements” of section 4852.05, “which provides as follows: [¶] ‘The person shall live an honest and upright life, shall conduct him or herself with sobriety and in dustry, shall exhibit a good moral character, and shall conform to and obey the laws of the land’ [Citation.] [¶] Whether to grant the relief is discretionary, and the standards for determining if rehabilitation has occurred are high. [Citation.] ‘There is no circumstance under which the statutory scheme requires or guarantees issuance of a certificate of rehabilita tion by the superior court.’ [Citation.] Moreover, ‘trial courts are entrusted with the responsibility, in the exercise of sound discretion, to ensure that the strict statut ory standards for rehabilitation are maintained.’ [Citation.]” In light of the above cited auth ority, the court ruled as follows: “[Rodecker] claims to have be en released on parole in Sept ember 1999, and therefore, the seven-year rehabilitation period expired in September 2006. According to [his] criminal history, he was arrested for violation of Vehicle Code sec tion 23152, [subdivision (a)], on [March 20, 2006]. Although the case was dismissed on the People’s motion, the court observes that this incident occurred during th e rehabilitation period. Further, . . . section 4852.05 requires [Rodecker] to conduct hims elf with sobriety, and the court finds petitioner has submitted insuffici ent evidence that he satisf ies this standard.” In addition, the court found relevant that within “the past four years [Rodecker was] cited on four occasions for tr affic violations, the most recent of which was unresolved when this petition was heard. (Case numbers FV422255-unsafe speed; 46060PV-HOV lane violation.)” The cour t explained, “[S]ection 4852.05 requires [Rodecker] to obey the laws of the land, and in light of this recent history, petitioner has
submitted insufficient evidence th at he complie[d] with this el ement, as well.” The court also noted the People had opposed the Petition. It concluded, “For the foregoing reasons, the [P]etition is therefore denied with out prejudice.” (Capitalization omitted.)6 II
Rodecker asserts he is the “id eal candidate” for a certificate of rehabilitation because he pres ented significant evidence, in cluding multiple character reference letters attesting to his remorse, growth, and maturity. Rodecker argues
evidence of his DUI arrest and traffic citations were not a reasonable basis for the court’s decision to deny his Petition because (1 ) the DUI dismissal suggests there was
insufficient evidence he drove while impaired, (2) the DUI arrest occurred more than seven years prior to the hearing, and (3) he went to traffic school for the minor traffic infractions. However, we cannot reweigh th e evidence and our re view is limited to
whether the court abused its di scretion in denying the Petition, i.e., did the trial court err in refusing to make “a personal representati on to the Governor that [Rodecker was] worthy of a pardon.’ [Citation.]” ( People v. Zeigler (2012) 211 Cal. App.4th 638, 668 ( Zeigler ).) We begin our analysis by a pplauding Rodecker for his many accomplishments. The multiple character refe rence letters describe him as mature, responsible, hard working, honest, trustwor thy, and having integrity. The Penal Code provides a procedure for convicted felons, su ch as Rodecker, to seek a full pardon. However, as will be described in more deta il below, the proce ss is arduous and the standards are high. A. Brief Background on the Proce ss to Obtain the Governor’s Pardon “[C]onvicted felons who claim to be reformed have traditionally sought relief from the various consequences of thei r convictions through the Governor’s power and discretion to grant pardons under the state Constitution. [Citation.] Different pardon application procedures exist in two neighboring statutory schemes. . . . [¶] The oldest procedure . . . is located in section 4800 et seq. . . . [T ]his scheme authorizes the submission of pardon applications directly to the Governor.” ( People v. Ansell (2001) 25 Cal.4th 868, 873-874 ( Ansell ).)7 The second procedure, the one invoke d by Rodecker, is located in section 4852.01 et seq. “During World War II the Go vernor’s office was inundated with pardon applications received from ex-felons who we re otherwise barred from serving in the military and working in defense industries. [Citations.] En acted as an urgency measure in 1943, the certificate of rehabilitation sche me eased the administrative burden on the executive branch by allowing the superior court to investigate and recommend pardon applicants. [Citation.]” ( Ansell , supra, 25 Cal.4th at pp. 874-875.) With certain exceptions, “the cer tificate of rehabilitation procedure is
available to convicted felons who have succ essfully completed their sentences, and who have undergone an additional and sustained “period of rehabilitation” in California. (§ 4852.03, subd. (a) [imposin g general minimum requirement of five years’ residence in this state, plus an additional period ty pically ranging between two and five years depending upon the conviction]; see §§ 4852.01, subds. (a)-(c), 4852.06.)” ( Ansell , supra, 25 Cal.4th at p. 875.) After the required peri od of rehabilitation, a convicted felon “who has complied with the requirements of [s]ecti on 4852.05 may file . . . a petition for
ascertainment and declaration of the fact of his or her rehabilitation.” (§ 4852.06, italics added.) Section 4852.05 has not been subs tantively changed from its original 1943 version, and provides “The person shall live an honest and uprigh t life, shall conduct himself or herself with sobriety and indust ry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.” Simply stated, only a petitioner who has complied with the above high standards of livi ng an honest, upright, sober, and industrial
life can seek the trial court’s assistance in obtaining a pardon from the Governor. Proceedings begin when a qualified person petitions for a certificate of rehabilitation in the superior court of the c ounty in which he lives . (§ 4852.06; see § 4852.07 [requiring notice to Go vernor and district attorney in county where petition is filed and petitioner wa s convicted].) ( Ansell , supra, 25 Cal.4th at p. 875.) “The superior8 court holds a hearing and considers testimoni al and documentary evidence bearing on the petition. (§§ 4852.1, 4852.11.) To this e nd, the court may compel the production of judicial, correctional, and law enforcemen t records concerning the crimes of which petitioner was convicted, his performance in cu stody and on supervised release, and his conduct during the period of re habilitation, including all viol ations of the law known to any peace officer. ( Ibid. ) The district attorney may be directed to investigate and report on relevant matters. (§ 4852.12.)” ( Ansell , supra, 25 Cal.4th at p. 875.) “The court may issue a certificate of rehabilitation if it finds the petitioner
is both rehabilitated and fit to exercise th e privileges and rights he lost due to his conviction. (§ 4852.13, subd. (a).) . . . The certificate of rehabilitation is then forwarded to the Governor; the Board of Prison Terms [cita tion]; the Department of Justice; and, if the person has been twice convicted of a felony, the Supreme Court (which, in writing and by a majority, must recommend a pardon be fore one may be granted). (§§ 4852.14, 4852.16.)” ( People v. Failla (2006) 140 Cal.App.4th 1514, 1519 ( Failla ).)
If the certificate is issued it serves two functions under the statutory scheme. First, it represents a court ruling “declaring the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner.” (§§ 4852.13, subd. (a).) Second, the certifi cate of rehabilitation “shall cons titute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, ex cept that, pursuant to Section 8 of Article V of the Constitution, the Govern or shall not grant a pardon to any person twice convicted of felony, except upon the written recommendati on of a majority of the judges of the Supreme Court.” (§ 4852.16.) “‘[T]he pa rdon decision is discretionary, and rests ultimately with the Gove rnor.’ [Citation.]” ( Failla, supra, 140 Cal.App.4th at p. 1519.) B. Abuse of Discretion Standard Because the statutory scheme anticipa tes the trial court making a judicial recommendation to the Governor, it is not su rprising that section 4852.13 gives trial9 courts the express discretion to decide whethe r “the petitioner has demonstrated by his or
her course of conduct his or her rehabilitation an d his or her fitness to exercise all of the civil and political rights of citizenship.” Inde ed, because “[t]he standards for determining
whether rehabilitation has occurr ed are high,” and the discretionary decision must be based on the evidence, “[t]he re is no circumstance under which the statutory scheme requires or guarantees issuance of a certificat e of rehabilitation by the superior court.’ [Citations.]” ( Zeigler, supra, 211 Cal.App.4th at pp. 653-654.)
“The standard test for as certaining an abuse of that discretion is whether the
court’s decision exceeded the bound s of reason. [Citations.]” ( People v. Blocker (2010) 190 Cal.App.4th 438, 444 ( Blocker ).) The court’s exercise of discretion “will be overturned only for manifest abuse that results in a miscarriage of ju stice. [Citations.]” ( Zeigler, supra , 211 Cal.App.4th at p. 667.) Where the appellant has presented a record that “‘merely affords an opport unity for a difference of opinion. An appellate tribunal is
neither authorized nor warrant ed in substituting its judgment for the judgment of the trial judge.’ [Citation.]” ( In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138, superceded by statute on ot her grounds as noted in Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1144, fn. 7.) As will be discussed in more detail below, we conclude “the signposts of reason we re not passed” in this case. ( Blocker, supra , 190 Cal.App.4th at p. 444.)
C. Relevant Case Law The following cases highlight that a convicted felon has the burden of demonstrating to the trial court’s satisfacti on the high standards of rehabilitation have been met. Many petitioners w ho are eligible to petition still may not receive a certificate
of rehabilitation. For example, in Ansell , supra, 25 Cal.4th at page 8 75, our Supreme Court recognized there was a lack of published cases interpreting the statutory scheme. It summarized the relevant legislative history and considered whether the 1997 amendment10 to section 4852.01, which excluded persons convicted of certain specified sex offenses from petitioning for a certificate, violated the prohibition against ex post facto laws under the federal and state constitutions (§ 4852 .01, subd. (d)). The court concluded the
amendment could be a pplied to deny a certificate of rehabilitation to a person who had committed sex offenses prior to its enactme nt without violating the ex post facto prohibition. It explained the disabilities from which a certificate can release a convicted felon are civil and “serve vital public intere sts,” and they do not involve punishment for the underlying crime. ( Ansell , supra, 25 Cal.4th at pp. 888-889.) In other words, the
certificate of rehabilitation does not involv e an additional criminal prosecution or punishment. Additionally, relevant to the case be fore us, the Supreme Court rejected defendant’s “suggestion that absent section 48 52.01, subdivision (d), a certificate of
rehabilitation is necessarily available to any convicted fe lon who claims to meet the minimum statutory requirements and is othe rwise eligible to apply. As we have explained, the superior court conducts a thorou gh inquiry into the ap plicant’s conduct and
character from the time of th e underlying crimes through th e time of the certificate of rehabilitation proceeding. [Citation.] The standards for determining whether rehabilitation has occurred are high. [Citati on.] The decision whether to grant relief
based on the evidence is discre tionary in nature. [Citation; see § 4852.13, subd. (a), as amended by Stats. 1996, ch. 129 , § 2, eff. July 8, 1996 [cla rifying that a certificate of rehabilitation ‘may’ issue upon the re quisite showing of reform].)” ( Ansell, supra , 25 Cal.4th at p. 887.) The court recognized the certificate of rehabilitation “also serves as a judicial recommendation for a pardon.” ( Id. at p. 891.)
In the Zeigler case, defendant filed a petition for a certificate of rehabilitation regarding two pr ior drug convictions. ( Zeigler, supra, 211 Cal.App.4th at p. 647.) The district attorney opposed the petition on the grounds it was barred by defendant’s most recent nonviolent drug offense. The district attorn ey maintained that11 while defendant was entitled to “a record clearance under Proposition 36, that does not change the fact that he broke the law by possessing drugs in 2007.” ( Id. at p. 649.) The trial court granted the petition after determini ng it could not consider the non-violent drug offense due to defendant’s completion of a drug treatment program. The appellate court reversed, explaining, “a Proposition 36 dismi ssal is not a dismissal for all purposes. Under section 1210.1, former subdivision (d), ‘a conviction for a nonviolent drug possession offense is “deemed not to have occurred” for some purposes but not others , and a defendant is released from some but not all disabilities resulting from that conviction.’ [Citation.]” ( Zeigler, supra , 211 Cal.App.4th at p. 657.)
The court in Zeigler concluded, “Unlike section 1210.1, former subdivision (d), which focuses on and limits the use of ‘a r ecord pertaining to an arrest or conviction resulting in successful completio n of a drug treatment program under’ Proposition 36, the statutes governing certificates of rehabilitation have a broader focus and instruct the court to consider the petitioner’s c onduct throughout the period of rehabilitation. Section 4852.05 provides that to obtain a certificate of rehabilitati on, the petitioner ‘shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conf orm to and obey the laws of the land.’” ( Zeigler, supra , 211 Cal.App.4th at pp. 662-663.)
In Zeigler, the court cited to several sections of the statutory scheme describing the broad scope of evidence a tr ial court may review. It surmised, “[these many provisions] give trial courts a great deal of discretion in determining the extent of the evidence presented at a hearing on a pe tition for a certificate of rehabilitation. The court may, but is not required to, order the production of the records listed in section 4852.1. The court may require any testimony it deems necessary, incl uding that of police officers. (§ 4852.11.) The court may, but is not required to, order th e district attorney to investigate the petitioner’s residence, criminal record, and conduct during the period of rehabilitation and report to the court on such matters. [Citati ons.] [¶] A nd once the trial12 court orders the production of records, or orde rs a peace officer to testify, or orders a report from the district attorney, persons subj ect to the court’s orders have a mandatory duty to respond to the court. [Citations].” ( Zeigler, supra , 211 Cal.App.4th at p. 664.) It held, “In view of our construction of secti on 1210.1 and the statut es governing petitions for certificate of rehabilitation, we conclude that these statutory schemes do not preclude the presentation of evidence of the underlying conduct that led to de fendant’s arrest and
conviction for a nonviolent drug possession offense at the hearing on his petition for a certificate of rehabilitation.” ( Zeigler, supra , 211 Cal.App.4th at p. 666.) It also
concluded the court abused its discretion when it granted the petition for a certificate of
rehabilitation because defendant engaged in illegal conduct less than seven years prior to the hearing on the petition. ( Id. at p. 667.)
In Blocker, supra, 190 Cal.App.4th at pages 44 0-441, the court held the trial court may deny a petition for a certificate of rehabilitation when a defendant refused to admit guilt on the underlying offense of assault, battery, and molestation of his stepdaughter. Defendant otherwise appeared to be an ideal candidate for a certificate and “[t]here was no disagreement that since his conviction [defendant] has led a law-abiding and virtually blameless life.” ( Id. at p. 441.) The court reasoned, “‘[A]cknowledgement of guilt is a critical first step towa rds rehabilitation.’ [Citations.]” ( Id . at p. 442.) “This was not any crime, but one whose statistically significant odds of recidivism moved the Legislature to impose the lifetim e registration requirement of se ction 290 . . . . [Citation.] Granting [defendant’s] petition w ould release him from that oblig ation. [Citations.] This is a consequence that could naturally give a tria l court pause. So would the fact that, if it granted [defendant’s] petition, the court would be essentially making a personal representation to the Governor that [defenda nt] was worthy of pardon. [¶] The hurdles erected by the Legislature to obtain a certific ate of rehabilitation ar e not intended to be easily surmounted. The trial courts are entrus ted with the responsibility, in the exercise of a sound discretion, to ensure that the st rict statutory standards for rehabilitation are13 maintained. [Citations.] Th e trial court here had a genuin e concern that [defendant’s] adamant refusal to admit any criminal culp ability was a cloud on [defendant’s] claimed
rehabilitation. Because we cannot conclude as a matter of law that the trial court’s concern was not a legitimate cons ideration in the exercise of its discretion [citation], we cannot conclude that in denying [defendant’s ] petition the trial cour t exceeded the bounds of reason.” ( Blocker, supra , 190 Cal.App.4th at p. 445, fns. omitted.) D. No Abuse of Discretion Rodecker argues the court abused its di scretion because he presented such a strong case of his rehabilitation. He asserts it was unreasonable for the court to focus on
the dismissed DUI arrest and minor traffic in fractions in making its ruling. In other words, Rodecker would like this court to hold the trial court “exceeded by bounds of reason” when it failed to solely focus on th e favorable evidence. However, we cannot say a miscarriage of justice occurred simply because the trial court considered the evidence presented by th e district attorney, especially in a case where defense counsel failed to offer any rebuttal evidence, argument, or explanation to mitigate its relevance. With respect to the DUI arrest, Rodecker does not assert on appeal the
evidence was inadmiss ible at the hearing on his certificate for rehabilitation. 2 Instead, he asserts the dismissed DUI “suggests there was insufficient evid ence that [he] was driving while impaired.” This argument was not rais ed below and suggests the court misused the arrest to find he was guilty of DUI. The reco rd shows the trial court was careful to note it
understood the DUI case was di smissed, but nevertheless the arrest record reasonably

2 We recognize evidence of arrest re cords are rarely used in prosecutions due to their highly prejudicial nature, but this case involved a non-prosec utorial hearing, in which Rodecker had the burden of convincing the trial cour t of his full rehabilitation. “[E]vidence of the prior arrest [is] not re ndered inadmissible merely because the charges upon which it was based were subsequently dismissed, since the admissibility of evidence of prior misc onduct does not require that there be a conviction for this misconduct [Citations.]” ( People v. Stewart (1966) 241 Cal.App.2d 509, 518; 21 Cal. Jur. 3d Criminal Law: Trial § 547 [effect of lack of formal conviction].)14 created an inference Rodecker had not maintained the elem ent of “sobriety” required to
obtain a certificate of rehabilita tion under section 4852.05. After careful review of the record, we conclude Rodecker failed to produce any evidence to support the inference the DUI case was dismissed due to lack of
sufficient evidence. Rodecker could not have been surprised by the district attorney’s
evidence because he received the opposition long before the he aring. He did not discuss
the circumstances of the arrest and his letters of reference mention every element listed in section 4852.05 except for the “sobriety” facto r. When the trial court asked Rodecker at the hearing if he had anything to add to his Petition, his counsel made no reference to any facts or circumstances underlying the DUI a rrest. The court had no basis to infer
dismissal of the case m eant Rodecker was factua lly innocent. (See People v. Esmaili (2013) 213 Cal.App.4th 1449 [m agistrate’s preliminary hear ing order, finding evidence
insufficient to bind defendant over for trial and dismissing the complaint, is not a
determination of factual innoc ence under § 851.8, subd. (b), because prosecutor’s failure of proof does not mean defendant auto matically carried his initial burden of demonstrating factual innocence].) And there is nothing to suggest Rodecker ever sought a factual finding of innocen ce regarding his DUI arrest . (§ 851.8 [requires law
enforcement or a court to determine arrestee is innocent before record can be destroyed or sealed].) In light of this record, we hold the trial court reasonabl y concluded Rodecker failed to meet his burden of proof on the se ction 4852.05 element of “sobriety” by failing
to comment on the DU I arrest record. Without citing to any supporting author ity, Rodecker asserts the trial court could not rely on the DUI arrest because it oc curred more than seven years prior to the hearing. This is not the law. The court must consider Rodecker’s rehabilitation from the time of the underlying crime throu gh the time of the hearing. ( Zeigler, supra, 211 Cal.App.4th at p. 668 [court may review district attorney’s investigative report in addition to petitioner’s documenta ry evidence and “conducts a thorough inquiry into the15 applicant’s conduct and charac ter from the time of the unde rlying crimes through the
time of the certificate of re habilitation proceeding”].) With respect to the traffic violations , we note Rodecker declared in his Petition, under penalty of perjur y, that he had obeyed all laws of the land when this was not true. When given an oppo rtunity to verbally supplemen t his petition at the hearing,
defense counsel failed to discuss Rodecke r’s run-ins with th e police for driving violations. On appeal, Rodecker tells us that he completed traffic school for three of the four driving violations and suggests this mitigates his breaking the law. However, he fails to explain the relevance of traffic school because the violations were not dismissed from his record. (Veh. Code, § 1808.7 [aft er traffic school some convictions become confidential].) More importantly, he failed to inform the trial court why he believed the traffic infractions for excessive speeding and wr ongfully driving in th e carpool lane were “minor” and “insignificant.” 3 Because Rodecker did not o ffer any explanation or excuse for the traffic infractions, his argument s uggests the court should have known he had a good excuse for breaki ng the law and therefore abused its discretion. This argument is simply not persuasive. “The hurdles erected by the Legi slature to obtain a certification of
rehabilitation are not intended to be easily surmounted.” ( Blocker, supra, 190 Cal.App.4th at p. 445.) The trial court is entrusted with the re sponsibility “to ensure that the strict statutory standard for rehabilitation are maintained.” ( Ibid .) Because
Rodecker offered no evidence or explanation in response to the evidence submitted by

3 In his reply brief, Rodecker ar gues minor traffic infractions “do not constitute failure to obey the laws of the land contemplated by the statute.” This argument was not raised in the trial court, and he provides no legal authority to support this contention on appeal. If the Legislature ha d intended to exclude traffic violations it would have expressly done so in the statutory scheme. Without knowing the circumstances surrounding his infractions, it is certainly arguable whether driving at an unsafe speed and exceeding the maximum sp eed limit of 65 miles per hour are minor offenses.16 the district attorney in his o pposition, we conclude the trial court could reasonably rely on this information. The court explained it had legitimate concerns about Rodecker’s sobriety and run-ins with police for which there was no contrary evidence provided. Therefore, we must conclude the trial c ourt did not abuse its discretion in denying
Rodecker’s Petition. On a final note, we recognize th e court denied the Petition without prejudice and it did not designate a new period of rehabilitation as permitted by statute. (§ 4852.11 [court may determ ine new period of rehabilitati on not to exceed original period of rehabilitation]; Failla, supra, 140 Cal.App.4th at p. 1521 [new waiting period
commences on date of court’s denial of the petition].) Consequently , Rodecker may file a new petition whenever he is ready.
III
The order is affirmed. Rodecker may reapply for a certificate of rehabilitation at any time.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.