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Filed 2/3/16 P. v. Lincoln CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES ROBERT LINCOLN,

Defendant and Appellant.

C078370

(Super. Ct. No. 14F03908)

The trial court denied defendant James Robert Lincoln’s application for a 

certificate of rehabilitation and pardon (Pen. Code,1former § 4852.01) regarding his 

1990 conviction for lewd and lascivious acts with a person under the age of 14 (§ 288, 

subd. (a), hereafter section 288(a)). On appeal, defendant contends the trial court abused 

 

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 Unspecified statutory references are to the Penal Code.
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its discretion in denying the application, resulting in a miscarriage of justice. We will 

affirm the judgment.

PROCEDURAL BACKGROUND2

In 1990, defendant entered a plea of no contest to one count of lewd or lascivious 

acts on a child under the age of 14 (§ 288(a)) in exchange for dismissal of a second count 

charging violation of section 288(a). The trial court sentenced defendant to three years in

state prison.

On June 13, 2014, defendant petitioned the trial court for a certificate of 

rehabilitation and pardon regarding his section 288(a) conviction. Defendant’s petition 

was filed pursuant to former section 4852.01, which provided as follows: 

“(a) Any person convicted of a felony who has been released from a state prison 

or other state penal institution or agency in California, whether discharged on completion 

of the term for which he or she was sentenced or released on parole prior to May 13, 

1943, who has not been incarcerated in a state prison or other state penal institution or 

agency since his or her release, and who presents satisfactory evidence of a three-year 

residence in this state immediately prior to the filing of the petition for a certificate of 

rehabilitation and pardon provided for by this chapter, may file the petition pursuant to 

the provisions of this chapter.

“(b) Any person convicted of a felony who, on May 13, 1943, was confined in a 

state prison or other institution or agency to which he or she was committed and any 

person convicted of a felony after that date who is committed to a state prison or other 

institution or agency may file a petition for a certificate of rehabilitation and pardon 

pursuant to the provisions of this chapter.

 

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 We do not provide a factual summary, as the record contains no factual information 

regarding defendant’s underlying crimes.
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“(c) Any person convicted of a felony or any person who is convicted of a 

misdemeanor violation of any sex offense specified in Section 290, 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 if the 

petitioner has not been incarcerated in any prison, jail, detention facility, or other penal 

institution or agency since the dismissal of the accusatory pleading and 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.

“(d) This chapter shall not apply to persons serving a mandatory life parole, 

persons committed under death sentences, persons convicted of a violation of 

Section 269, subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, 

Section 288.5, Section 288.7, or subdivision (j) of Section 289, or persons in military 

service.

“(e) Notwithstanding any other law, the Governor has the right to pardon a person 

convicted of a violation of Section 269, subdivision (c) of Section 286, Section 288, 

subdivision (c) of Section 288a, Section 288.5, Section 288.7, or subdivision (j) of 

Section 289, if there are extraordinary circumstances.”

Prior to the hearing on defendant’s petition, the trial court issued its tentative 

ruling denying the petition on the grounds that the petition (1) was “factually lacking”; 

(2) failed to “meet th[e] criteria” set forth in the Evidence Code with respect to 

presentation of evidence; (3) failed to satisfy the conditions for rehabilitation under 

former section 4852.01 and section 4852.05; and (4) failed on its equal protection 

challenge.

At the hearing on defendant’s petition, the trial court stated its intention to adopt 

its earlier tentative ruling denying the petition and asked defense counsel, “Any reason 

that I should not adopt it?” Defense counsel responded, “I can offer no legal basis for 

that, Your Honor.” The court adopted its tentative ruling and denied the petition.
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Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the trial court’s denial of his petition for certificate of 

rehabilitation (former § 4852.01) was an abuse of discretion that resulted in a miscarriage 

of justice. Defendant’s claim is confusing and at times unintelligible, and is devoid of 

analysis of the facts and the applicable law. To the extent we can discern them, we 

attempt to address each of defendant’s arguments in the order presented.

First, defendant claims the trial court “stated that the issue was addressed in the 

California Assembly Bill 1438, which was filed with the Secretary of State August 25, 

2014” and argues the court erroneously “believed” Assembly Bill No. 1438 (2013-2014 

Reg. Sess.; hereafter Assembly Bill 1438) “eliminated the Equal Protection argument.”3

To avoid forfeiture of his claim, defendant had the burden to support his 

arguments with analysis and citation to evidence in the appellate record. (People v. 

Hardy (1992) 2 Cal.4th 86, 150; People v. Galambos (2002) 104 Cal.App.4th 1147, 

1159; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136.) He failed to do so

and thus forfeits the claim. We note, however, that our review of the record reveals the 

 

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 On August 25, 2014, Assembly Bill 1438 was enacted into law and became operative 

January 1, 2015. Assembly Bill 1438 amended section 3000.1, subdivision (a)(2), which 

now reads: “Notwithstanding any other law, in the case of any inmate sentenced to a life 

term under subdivision (b) of Section 209, if that offense was committed with the intent 

to commit a specified sexual offense, Section 269 or 288.7, subdivision (c) of Section 

667.51, Section 667.71 in which one or more of the victims of the offense was a child 

under 14 years of age, or subdivision (j), (l), or (m) of Section 667.61, the period of 

parole, if parole is granted, shall be the remainder of the inmate’s life.” (Italics added.) 

(See Stats. 2014, ch. 280, § 2, eff. Jan. 1, 2015.) The Legislature also amended former 

section 4852.01, subdivision (d) by adding to, and placing in numerical order, sections 

269 and 288.7 to the list of offenses that disqualify persons from seeking a certificate of 

rehabilitation. (Stats. 2014, ch. 280, § 3, eff. Jan 1, 2015.)
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trial court made no mention whatsoever of Assembly Bill 1438 either in its tentative 

ruling or at the hearing on defendant’s petition.

Next, defendant argues in his opening brief that he filed his petition after

publication of People v. Tirey (2014) 225 Cal.App.4th 1150 (Tirey), review granted 

August 20, 2014, S219050, and cause transferred to the Court of Appeal, Fourth 

Appellate District, Division Three, for reconsideration in light of Johnson v. Department 

of Justice (2015) 60 Cal.4th 871 (Johnson), but before Assembly Bill 1438 was filed with 

the Secretary of State. Defendant’s reply brief correctly notes that, on January 29, 2015, 

the Supreme Court reversed the judgment in Johnson, overruling People v. Hofsheier

(2006) 37 Cal.4th 1185 in the process.4 Defendant argues that, because “the California 

Legislature did NOT write the law to be retroactively applicable,” he is entitled to the 

same relief as “the Petitioners who filed their Petitions prior to the enactment of the new 

law” and who “were ultimately granted the Certificate of Rehabilitation they had 

petitioned for.” Defendant further argues Assembly Bill 1438 was not in effect when he 

filed his petition, thus he is eligible to receive the requested certificate of rehabilitation.

Again, defendant’s claim is forfeited for failure to support his arguments with 

analysis and citation to evidence in the appellate record (People v. Hardy, supra,

2 Cal.4th at p. 150; People v. Galambos, supra, 104 Cal.App.4th at p. 1159; People v. 

Sangani, supra, 22 Cal.App.4th at pp. 1135-1136) or citation to legal authority (Cal. 

Rules of Court, rule 8.204(a)(1)(B); Atchley v. City of Fresno (1984) 151 Cal.App.3d 

635, 647; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is 

 

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 The Johnson court held that, “[i]nasmuch as Johnson’s claim for relief rests entirely on 

Hofsheier, we conclude, with respect to his section 288a(b)(2) conviction, that there is no 

violation of his federal and state constitutional rights to equal protection of the laws in the 

ongoing requirement that he register as a sex offender pursuant to section 290.” 

(Johnson, supra, 60 Cal.4th at p. 888.) The court further held retroactive application was 

appropriate “where, as here, a sex offender has taken no action in justifiable reliance on 

the overruled decision.” (Id. at p. 889.)
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forfeited if it is raised in a perfunctory fashion without any supporting analysis and 

authority].) And again, we note the trial court’s denial of defendant’s petition neither 

expressly nor impliedly relies on Assembly Bill 1438. We further note that any reliance 

on Tirey is improper, as that case was depublished as a result of the Supreme Court’s

grant of review. The case is not lawfully citable and will not be considered. (See Cal. 

Rules of Court, rules 8.1105(e)(1) [with an exception not applicable here, “an opinion is 

no longer considered published if the Supreme Court grants review”], 8.1115(a) [with 

exceptions not applicable here, “an opinion of a California Court of Appeal . . . that is not 

certified for publication or ordered published must not be cited or relied on by a court or 

a party in any other action”].)

Finally, defendant claims he met the criteria required for issuance of a certification 

of rehabilitation in that he “lived an honest and upright life” after being released from 

custody, and “has conducted himself with sobriety and industry, exhibited a good moral 

character and conformed to and obeyed all the laws of the land,” as required by section 

4852.05.

To the extent this observation, made in passing and without further analysis, is 

intended to constitute an argument, it must be deemed forfeited. (Cal. Rules of Court, 

rule 8.204(a)(1)(B) [each point in appellate brief must be supported by citation of 

authority]; Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647 [lack of authority 

or analysis constitutes forfeiture].) Even assuming defendant’s offense of conviction did 

not prohibit the filing of a petition for certificate of rehabilitation, defendant failed to 

provide either “satisfactory evidence of a three-year residence in this state immediately 

prior to the filing of the petition,” as required by section 4852.01, former subdivision (a), 

or “satisfactory evidence of five years residence in this state prior to the filing of the 

petition,” as required by section 4852.01, former subdivision (c), depending upon which 

subdivision his petition relied.
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In any event, defendant’s claim fails on the merits. Section 4852.01, former 

subdivision (d), states, “This chapter shall not apply to . . . persons convicted of a 

violation of . . . Section 288.” Having been convicted of violating section 288(a), 

defendant was statutorily barred from petitioning for a certificate of rehabilitation. Thus, 

the trial court did not abuse its discretion in denying defendant’s petition. (People v. 

Lockwood (1998) 66 Cal.App.4th 222, 227 [trial court’s decision to deny a petition for 

certificate of rehabilitation is reviewed for abuse of discretion].)

DISPOSITION

The judgment is affirmed.

 /s/

Blease, Acting P. J.

We concur:

 /s/

Nicholson, J.

 /s/

Hoch, J.