1

Filed 2/1/18



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S 237374
v. ) ) Ct.App. 1/ 1 A144196 JODY CHATMAN , ) ) Alameda County Defendant and Appellant. ) Super. Ct. No. 140542

________________________________ ____ )

Anyone convicted of a felony in California suffers consequences . Even long after a defendant completes a term of incarceration or probation, s ome of these consequences

–– such as ineligibility for certain employment licenses

–– persist

. To ease this ongoing bu rden, individuals can seek a certificate of
rehabilitation. But not all convicted felons are eligible on an equal basis for such
certificates

. While former probationers and former prisoners are both eligible, former probationers face different eligibility criteria after they have been granted
relief under Penal Code section 1203.4, 1 which allows former probationers to
move for their conviction to be dismissed upon successful completion of probation

te rms. Once former probationers receive the benefit of having their convictions
dismissed under section 1203.4 , another provision

–– section 4852.01

–– renders
them ineligible for a certificate of rehabilitation if they are subsequently
incarcerated

. (See § 4852.01, subd. (b).) In contrast, former prisoners

–– whether

1 All unlabeled statutory references are to the Penal Code.2

subsequently incarcerated or not

–– face no such restriction. (See id. , subd. (a).) The question in this case is whether the se eligibility criteria survive an equal protection challenge und er the federal and state constitutions, which in turn depends on whether the criteria survive rational basis review. The Court of Appeal held that section 48 5 2.01’s separate requirements governing former probationers whose convictions were dismissed under section 1203.4 are categorically irrational , and therefore deny petitioners equal protection of law

. Bearing in mind that the scheme at issue is subject to neither height e ned nor intermediate scrutiny, w e conclude otherwise: s ection 4852.01’s eligibility criteria
survive rational basis review

. The Legislature’s decision to provide former probationers access to certificates of rehabilitation serves the laudable goal of decreasing the unfortunate
aftereffects of felony convictions on those who achiev e rehabilitation. But while

c ertificates provide substantial benefits to rehabilitated felons , adjudicating eligibility for them depends on the state ’s expenditure of significant judicial a nd
executive branch resources. In providing this costly benefit only to former prisoners and former probatio ners who have not been subsequently incarcerated , the Legislature engaged in a line

- drawing that

–– while perhaps not emblematic of the ideal rehabilitative system

–– embodies a sufficiently ratio nal determination regarding distribution of resources.
Distinctions between former probationers and former prisoners underscore why. Former probationers, as opposed to former prisoners, can seek some relief from the effects of their convictions through section 1203.4, and so exhibit
somewhat less relative need for certificate of rehabilitation relief. Moreover,

w hen the Legislature first provided access to certificates of rehabilitation in 1943, it did so only for former prisoners . Only in 1976 was the benefit extended to former probationers not subsequently incarcerated. F rom the legislative history, it3

appears that lawmakers at the time weighed the increased cost of extending relief

. And i nstead of choosing an arbitrary means of limiting such access, legislators
used subsequent incarceration as a means of determining which former probationers show the most promise for rehabilitation. If these justifications for the statute’s treatment of former probationers do not necessarily reflect the ideal
distribution of certificates o f rehabilitation , neither can we conclude they are wholly irrational. What the framework enacted by the Legislature permits is for
certai n people to mitigate the effects of felony convictions in a world of limited

resources

. The basis for allocating those resources is sufficiently grounded in non

illusory distinctions between subsequently incarcerated former probationers and
other classes of convicted felons to survive rational basis scrutiny under the equal protection clauses of the state and federal constitutions

. I. Jody Chatman w as convicted of robbery in 2001

. The trial judge sentenced
him to a five

- year term of felony probation with a 180

- day term in jail

. Two years later, Chatman was convicted of misdemeanor reckless driving with alcohol involved in violation of Vehicle Code section 23103, also called a “ wet reckless .” In 2006, the reckless driving conviction was dismissed under s ection 1203.4. In 2007, the robbery conviction was also dismissed under section 1203.4. Then, in 2008, Chatman was convicted of misdemeanor driving under the influence in
violation of Vehicle Code section 23152, subdivision (b). He was sentenced to a three

- year term of probation along with a 10

- day term of imprisonment in county jail. In 2014, Chatman was offered a job that required a community care license from the Department of Social Services

. Although Chatman’s robbery conviction generally bars h im from obtaining a community care license , the Department of
Social Services “may grant an exemption ” to this bar “ i f the employee or prospective employee has received a certificate of rehabilitation pursuant to . . .4

Section 4852.01.” ( Health & Saf

. Cod e, § 1522, subd. (g)(1)(A)(ii).) 2 Chatman filed a petition for a certificate of rehabilitation under section 4852.01 in October
2014

. His petition acknowledged that he was “ technically barred from a certificate of rehabilitation” but claimed that section 4852.01’s unequal treatment
of former probationers whose convictions had been dismissed under section
1203.4 was unconstitutional

. The trial court denied the petition.
The Court of Appeal reversed that ruling

. The court acknowledged that People v. Jon es (1985) 176 Cal.App.3d 120 “ was decided more than 30 years ago
and addressed the identical question presented here

. ” ( People v. Chatman (2016) 2 Cal.App.5th 561, 571.) But it disagreed with Jones , which had upheld section 4852.01’s eligibility criteria . ( I bid .) The Court of Appeal in Chatman’s case then
went on to observe that the “Attorney General in this appeal . . . fails to offer a
rationale for the different ial treatment, except to repeat the observations contained
in Jones .” ( Ibid. ) The court held that “the statutory scheme governing eligibility
for certificates of rehabilitation denies Chatman his rights to equal protection

. ” ( Id. at p. 57 2 .) It then remanded to the trial court “with directions to consider the

2 Even if Chatman had satisfied the criteria for this exemption , he would have face d a second statutory hurdle. The Department of Social Services is barred from granting a community care license to applicants who were convicted of certain crimes, including robbery. (See Healt h & Saf. Code, § 1522, subd. (g)(1)(A)(i).) But “the department may grant an exemption” ( i d

. , subd. (g)(1)(A)(ii) ) to that bar for “[a]ny felony in which the defendant inflicts great bodily injury on any person” or “uses a firearm” ( Pen. Code, § 667.5, su bd. (c) (8) )

. Felons who committed robbery using a firearm or involving great bodily harm to a victim thus have a pathway to obtaining a community care license, while felons who committed other forms of robbery do not. This unequal treatment of different types of robbery was held unconstitutional in Doe v. Saenz (2006) 140 Cal.App.4th 960 , 989

- 993 . Chatman’s robbery conviction did not involve use of a firearm or great bodily harm to a victim. But the constitutionality of Health and Safety Code section 15 22 is not before us in this case, so we do not address it.5

merits of Chatman’s petition fo r a certificate of rehabilitation.” ( Id. at p. 573.) We granted the Attorney General’s petition for review

. II.
Chatman claims it is unconstitutional for the Legislature to impose a disparate process for obtaining a certificate of rehabilitation through section
4852.01 on former probationers whose convictions were dismissed under section
1203.4

. In the history and procedures associated with these certificates

–– along
with the rules governing access to relief under section 1203.4

–– we find the
context f or our analysis. When the original certificate scheme was enacted, it was “ an urgency

measure ” forged against the backdrop of World War II

. ( People v. Ansell (2001) 25 Cal.4th 868, 874.) As demand for labor and military recruitment heightened,
the Gove rnor’s office was deluged with pardon applications from ex

- felons barred from serving in the military or working in defense

- related industries

. ( Id. at pp. 874

- 875.) The certificate of rehabilitation relieved pressure by creating a means for felons to apply for a pardon through which the merits of a particular application could be adjudicated , so that “ ‘ the Governor [could] , without any further investigation, issue a pardon to the person named therein. ’ ” ( Id. at p. 876 ; see also § 4852. 16 [a certificate of rehabilitation “ constitute [s] an application for a full pardon ”]. ) Altho ugh an eventual pardon returns most of a convicted felon’s rights (see Ansell , at p. 877, fn. 16) , the certificate itself also provides relief from
certain effect s of a felony conviction , such as ineligibility from certain employment licenses ( i d. at p. 877 & fn. 17; Health & Saf

. Code, § 1522, subd. (g)(1)(A)(ii) [stating that the Department of Social Services “may grant an exemption” to the bar on community care licenses “if the employee or prospective employee has received a certificate of rehabilitation”]; Bus. & Prof. Code, § 480, subd. (b) [“ Notwithstanding any other provision of this [Business and Professions]6

code, a person shall not be denied a license sole ly on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of
rehabilitation .”] )

. To obtain a certificate of rehabilitation and benefit from t he relief it provides, petitioners must satisfy a number of condition s . An eligible felon may only file a petition for a certificate of rehabilitation after a specified “period of rehabilitation,” which must last a minimum of five years from the petitioner’s release from prison or placement on probation. (§ 4852.03, subds . (a), (b); § 4852.06.) During the period of rehabilitation, the petitioner must “live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.” (§ 4852.05.) A potential petitioner is “entitled to receive counsel and assistance from all rehabilitative agencies, including the adult probation officer of the county and all state parole officers

. ” (§ 4852.04.) In the proceedings before the trial court, the petitioner is entitled to the assistance of appointed counsel. (§ 4852.08.) The trial court “may require testimony as it deems necessary,” and may require , “without expense of any kind to the petitioner,” “the production

. . . of all records and reports relating to the petitioner and the crime of which he or she
was convicted

. ” (§ 4852.1 , subd. (a) .) The trial court may also order the district attorney to investigate the petitioner’s residence, criminal history, representations

to t he trial court, and conduct during the period of rehabilitation, as well as “any other information the court deems necessary in making its determination.” (§ 4852.12 , subd. (a) .) The trial court has discretion whether to grant a petition for a certifica te of rehabilitation. (See People v. Lockwood (1998) 66 Cal.App.4th 222, 228 [“ Section 4852.13

. . . gives courts the express discretion to decide whether a petitioner has demonstrated [rehabilitation] to [the trial court’s]7

satisfaction

. . . .”].) In e xercising its discretion, the trial court considers whether 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.” (§ 4852.13 , su bd. (a) .) If the trial court grants the petition, the clerk
of the court must immediately forward the certificate of rehabilitation to the governor’s office so that the petitioner can be considered for a pardon. ( § 4852.14 ; § 4852.16

. ) But if the petiti oner violates the law during the period of rehabilitation, “the court may deny the petition and determine a new period of rehabilitation not to exceed the original period of rehabilitation for the same crime.” (§ 4852.11.) Moreover, in order to even beg in the process of applying for a certificate of rehabilitation, t he petitioner must be eligible by satisfying the criteria set forth in
section 4852.01

. F elons “ committed to a state prison or other institution or
agency ” are eligible to apply even if they have been incarcerated after serving
their initial sentence

. ( § 4852.01 , subd. (a).) But f elons for whom “the accusatory pleading ” of the un d erlying felony conviction “ has been dismissed pursuant to Section 1203.4” are eligible only if they ( 1 ) hav e “not been incarcerated in a prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading ” ; (2) “ [ are ] not on probation for t he
commission of an y other felony ” ; and (3) “present[] satisfactory evide nce of five
years ’ residence in this state prior to the filing of the petition.” ( Id. , subd. (b).)
The aforementioned s ection 1203.4 requires , meanwhile, for the underlying
conviction to be dismissed “[i]n any case in which a defendant has fulfilled the conditions of probation for the entire period of probation , or has been discharge d prior to the termination of the period of probation. ” ( § 1203.4, subd. (a)(1).) The trial court may also dismiss a conviction under section 1203.4 where a probationer
has not satisfied the terms of probation if it is in “ the interests of justice .” ( Ibid. )8

Although section 1203.4 provides that a dismissal releases the defendant “from all penalties and disabilities resulting fr o m the offense,” dismissal do es not ease all

t he burdens of a felony conviction. ( Ibid. ) To the contrary : the felon remains “obligat [ed] to disclose the conviction in response to any direct question contained in any questionnaire or application for public office [or] for licensure by any state
or l ocal agency.” ( Ibid. ) Section 1203.4 dismissal also does not restore the ability to hold public offi ces that the felony barred ( s ee id. , subd. (a)(3) ) or “ to own, possess, or have in his or her custody or control any firearm ” ( i d. , subd. (a)(2)).
L icensing boards remain free to suspend or revoke professional licenses “irrespective of a subsequent order under the provisions of Section 1203.4.” (Bus. & Prof. Code, § 490 , subd. (c) ; see also id. , § 6102, subd. (c) [providing for summary disbarment of attorneys “irrespective of any subsequent order under
Section 1203.4”]; id. , § 2236.1 , subd. (d) [same for suspension of medical licenses]; Ed. Code, §§ 44008 , subd. (a) , 44009 , subds. (a) & (c) [ same for certain provisions concerning educational employmen t ] .) Section 1203.4 dismissal also
does not aff

ect sex offender registration ( s ee § 290.007 ) or “any revocation or suspension of the privilege of the person convicted to drive a motor vehicle” (Veh. Code, § 13555)

. Nonetheless, dismissal under section 1203.4 provides at least some relief

. Among other benefits, Labor Code section 432.7 prohibits an “employer, whether a public agency or private individual or corporation” from “ask[ing] an applicant for employment to disclose

. . . information

. . . concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including

. . . Section[] 1203.4.” (Lab. Code, § 432.7 , subd. (a)(1) .) Moreover, Business and Professions Code section 480, subdivision (c) provides that “[n ]otwithstanding any other provisions of this [Business and Professions] code, a person shall not be9

denied a license solely on the basis of a conviction that has been dismissed pursuant to Section 1203.4.” (Bus. & Prof. Code, § 480, subd. (c).)
III.
Chatm an is a subsequently incarcerated former probationer. Because of this status, Chatman claims he is part of a group that is unconstitutionally subject

to unequal treatment because felons are ineligible for a certificate of rehabilitation if they are incarcerated after a section 1203.4 dismissal. Both the state and federal
constitutions extend to persons the equal protection of law. (See U.S. Const., 14th Amend.; Cal. C o nst., art. I, § 7, subd. (a); see also In re Gary W. (1971) 5 Cal.3d 296, 303 [“ ‘ The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. ’ [Citation.] ”].) Though this court’s analysis of state const itutional requirements sometimes deviates from how comparable feder al requirements are analyzed , our precedent has not distinguished
the state and federal guarantees of equal protection for claims arising from allegedly unequal consequences associated with different types of criminal
offenses . ( Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 ( Johnson ); People v. Hofsheier (2006) 37 Cal.4th 1185 , 1199

- 1201.)
O ur most recent case addressing claims of this kind is Johnson

. The case upheld as rational a statute establishing discretionary sex offender registration for
persons convicted of unlawful sexual intercourse with a minor , but making it mandatory for individuals convicted of offenses involving other types of sexual activity with a mino r. ( Johnson , supra , 60 Cal.4th at p. 874.) What we reiterated
is that we had “authority to construe our state Constitution independently” but saw no reason to bifurcate state and federal analysis in that context. ( Id. at p. 881 ; see also Manduley v. Sup erior Court (2002) 27 Cal.4th 537, 571

- 572 .) Relying on
Johnson , the Court of Appeal in Chatman’s case also saw “ no reason to suppose”10

that federal equal protection analysis would yield a result different from what would emerge from analysis of the state Constitution. (See People v. Chatman , supra , 2 Cal.App. 5th at p. 568, fn. 3.) We see no reason to suppose so either.
At core , the requirement of equal protection ensures that the governmen t does not treat a group of people unequally without some justification. ( People v.
McKee ( 2010) 47 Cal.4th 1172, 1207) [“[E] qual protection safeguards against the arbitrary denial of benefits to a certain defined class of individuals

. ”].) The extent of justification required to survive equal protection scrutiny in a specific context depends on the nature or effect of the classification at issue. Unequal treatment
based on a suspect classification such as race is subject to “ ‘the most exac ting scrutiny.’ ” ( People v. Wilkinson (2012) 33 Cal.4th 821 , 836.) So is treatment affecting a fundamental right. (See Warden v. State Bar (1999) 21 Cal.4th 628, 641 [“ ‘ [I]n cases involving “ suspect classifications ” or touching on “ fundamental
interes ts ”

. . . courts adopt “ an attitude of active and critical analysis, subjecting the classifications to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compel ling interest which justifies the law but that the distinctions drawn by the
law are necessary to further its purpose. ” [Citation.] ’ ” ].) In the high court,

c ertain other classifications, such as gender and illegitimacy, trigger “intermediate scrutiny ” under the federal constitution. ( Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 299, fn. 12 [“ In applying the federal equal protection clause, the United States Supreme Court has applied a third standard

— ‘intermediate scrutiny’

— ‘to discriminator y classifications based on sex or illegitimacy.’ ”].
But see Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 564 [“We long ago concluded that discrimination based on gender violates the equal protection clause of the Califo rnia Constitution (art. I, § 7 , subd. (a)) and triggers the highest level of scrutiny.”]. )11

Yet where th e law challenged n either draws a suspect classification n or burden s fundamental right s , the question we ask is different. We find a denial of equal pr otection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose

. ( People v. Turnage (2012) 55 Cal.4th 62, 74 .) T his core feature of equal protection sets a high bar before a law
is deemed to lack even the minimal rationality necessary for it to survive
constitutional scrutiny . Co upled with a rebuttable presumption that legislation is
constitutional , this high bar helps ensure that democratically enacted laws are not invalidated merely based on a court ’s cursory conclusion that a statute’s trade

- offs

seem unwise or unfair

. ( See Heller v. Doe (1993) 509 U.S. 312, 31 9 [“ [R] ational

basis review

. . . ‘ is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. ’ [ C itat ions

. ] Nor does it authorize ‘the judiciary [to] sit as

a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” ] ; see also Johnson , supra , 60 Cal.4th at p. 880, fn. 5 .)
In order to decide whether a statutory distinction is so devoid of even minimal rationality that it is unconstitutional as a matter of equal protection , we typically ask two questions. W e first ask whether the sta te adopted a classification affecting two or more groups that are similarly situated in an unequal manner. ( People v. McKee , supra , 47 Cal.4th at p. 1202 .) I f we deem the groups at issue similarly situated in all material respects , we consider whether th e challenged classification ultimately bears a rational relationship to a legitimate state purpose

. ( Johnson , supra , 60 Cal.4th at p. 881 .) A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable

. (See ibid. ; see also Gerawan Farming, Inc. v. Agricultural Labor Relations Board (2017 ) 3 Cal.5th 1118, 1140 ] [holding that

“ ‘ “ a statutory classification that neither proceeds along suspect lines nor infringes12

fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a
rational b asis for the classification. ” ’ [ C itation

. ] ”].) The under lying rationale for a statutory classification need not have been “ ever actually articulated ” by lawmakers, and it does not need to “ be empirically substantiated. ” ( Johnson , at p. 881. ) Nor does the logic behind a potential just ification need to be persu asive or sensible

— rather than simply rational. ( See ibid. )
I V

. Chatman contends that he and other former probationers incarcerated after
their convictions were dismissed share a characteristic pivotal to the outcome of
this case

–– they are, in all material respects, similarly situated to formerly incarcerated former prisoners, who remain eligible to apply for a certificate of
rehabilitation even if subsequently incarcerat ed

. We assume without deciding that
Chatman is correct regarding the similarly situated nature of the se two groups, so

we may consider the more fundamental question of whether section 4852 .01 ’s unequal treatment of the groups bear s a rational relationship to a legitimate state
purpose. What the Attorney General maintains is that the answer to this question is straightforward: the current statutory scheme is rational , among other reasons, because it “conserves judicial resources by reserving certificate of [rehabilitation] proceedings to only those former felons who are likely to be able to demonstrate rehabilitation.” The Legislature’s decision to provide certificates of rehabilitation to former probationers and former prisoners serves the laudable goal of decreasing the negative effects of felony convictions for those convicted felons who have
achieved rehabilitation. However laudable the goal, p rocessing certificate s of
rehabilitatio n

–– once conceived as a means of relieving a burden on gubernatorial clemency decisions

–– nonetheless requires the expenditure of significant13

resources. The Penal Code provides eligible petitioners access to rehabilitative services and counsel during th e five

- year period of rehabilitation and appointed counsel for the certificate of rehabilitation proceedings. (§ 4852.03 , subd. (a) ; § 4852.04; § 4852.08

. ) The trial court must determine whether the petitioner has

“ demonstrated by his or her course of co nduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship

. ” (§ 4852.13 , subd. (a) .) To assist in th is determination , the court may order testimony and the production of evidence at the governm ent’s expense and may require the district attorney to perform an investigation. (§ 4852.1 , subd. (a) ; § 4852.12 , subd. (a) .) And once a certificate of rehabilitation has been granted, the certificate is immediately forwarded to the governor’s office , wh ich then evaluates the petitioner for a pardon. (§ 4852. 14 ; § 4852.16 .) Irrespective of the outcome relative to any individual petitioner , this sequence involves the expenditure of significant judicial and executive branch resources. Preserving the gover nment’s financial integrity and resources is a legitimate state interest . ( See Ortwein v. Schwab (1973) 410 U.S. 656, 660 [ holding appellate filing fee of $25 was rationally related to offsetting court system’ s costs ]; American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 374 [ holding that “ administrative costs ” rationale defeats equal protection claim against statute authorizing periodic payment procedure for medical malpractice victims ]

. ) Moreover, equal protection does not requir e a perfect fit between a statute’s means and the legitimate state ends those means can

serve

. ( Johnson , supra , 60 Cal.4th at p. 887 [“ ‘ A classification is not arbitrary or irrational simply because there is an “ imperfect fit between means and ends ” ’ [c itation], or ‘ because it may be “ to some extent both underinclusive and
overinclusive ” ’ [ C itation]

. ”].) What we require is for the relationship between
means and ends to be rational. (See id. at p. 898 [“ [W] hile the Legislature may14

rationally address a problem ‘ “in less than comprehensive fashion by ‘striking the evil where it is felt most’ [citation], its decision as to where to ‘ strike ’ must have a rational basis in light of the legislative objectives” ’ ”].) On the other hand, an entirely arbitrary decision to withhold a benefit from one subset of people , devoid of any conceivable degree of coherent justification, might not pass rational basis review merely because it decreases the expenditure of

resources. (Cf. Plyler v. Doe (1982) 457 U.S. 202, 2 27 [ holding, albeit in an intermediate scrutiny context, that “ a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those

resources ” ] .) The question then is whether the classification at issue in this case , which bars subsequently incarcerated former probationers from certificate of
rehabilitation relief , is a rational means of preserving government resources. We answer yes. The Legislature has chosen to extend certificate of
rehabilitation relief to only a subset of former probationers based on rational
distinctions between subsequently incar cerated former probationers and other convicted felons. First of all, former prisoners have a higher relative need for

c ertif icate of rehabilitation relief than former probationers

. Former probationers who have successfully completed the ir terms of probation have a right to dismissal of their conviction under section 1203.4. ( § 1203.4(a)(1). ) Such a dismissal does
not el iminate all of the negative consequences of the former probationer’s
conviction

— for example, as Chatman contends here, former probationers who do not obtain a certificate of rehabilitation have more difficulty in obtaining a community care license

— but section 1203.4 certainly provides at least some relief from the consequences of conviction. (See Lab

. Code, § 432.7 , subd. (a)(1) [prohibiting employers from asking about convictions dismissed under section 1203.4]; Bus. & Prof. Code, § 480, subd. ( c) [prohibiting denial of application for
license under the Business and Professions Code solely on the basis of a15

conviction dismissed under section 1203.4] .) Contrasting with what’s available to former probationers , relief under s ection 1203.4 is not av ailable to former prisoners, who are instead limited to seeking relief through the certificate of rehabilitation process. The Legislature rationally could have taken into account former probationers’ lower relative need for certificate of rehabilitation r elief when determining which group of petitioners to disqualify from such relief for the sake of preserving government resources. Second, the timeline by which former probationers obtained the ability to seek certificates of rehabilitation and the larger population of former probationers also distinguish former probationers from former prisoners . T he Legislature
created certificate s of rehabilitation in 1943, but only for former prisoners. (Stats. 1943, ch. 400, § 1, p. 1922.) In 1976, the Legislature e xtended access to certificates of rehabilitation to former probationers, but only those who are not subsequently incarcerated. (Stats. 1976, ch. 434, § 2, p. 1111.) The cost associated with the Legislature’s decision to extend the benefit of certificates of rehabilitation to an entirely new group of convicted felons rationally could have
driven a decision limiting the expansion of the benefit to only a subset of former probationers

–– a subset at least marginally more likely to achieve rehabilitation

. Th is limited extension accomplished the goal of increasing the number of people
who can receive relief from the effects of their convictions , while avoiding , in a manner not inconsistent with rationality, high costs by not extending that relief to
all former probationers. The legislative history for the 1976 bill and a predecessor bill provide at
least some indication that this cost concern figured in legislative deliberations

. Two years before former probationers not subsequently incarcerated gained acces s
to certificate s of rehabilitation, the Legislature enacted a bill extending this benefit

to all former probationers. (Stats. 1974, ch. 1365, § 1.5, p. 2955). But that bill16

never became law because the governor vetoed a companion Senate Bill. (Stats. 1974, ch. 1365, § 10, p. 29 58 [expressly conditioning the Assembly Bill’s effect on passage of Senate Bill].) While vetoing the Senate Bill, the governor made the following statement: “This bill would add considerable unnecessary cost to the

sta te because of the required processing of requests for certificates of rehabilitation and subsequent Governor’s pardons by probationers. [¶] The provisions of Section 1203.4 of the Penal Code permit the court to enter a not guilty plea upon the successful completion of probation by an individual and dismiss the information. This is a much simpler method than the costly and time

consuming processing of certificates of rehabilitation and pardons which is used in the case of persons who have been committed t o state prison and who have subsequently become law

- abiding citizens of our community.” ( Governor’s v eto

m essage to Sen. on Sen. Bill No. 2222 (Sept. 27, 1974) 6 Sen. J. (1973

- 1974 2d Ex. Sess.) p. 14786. ) The Legislature then, in 1976, extended the righ t to obtain certificates of rehabilitation to former probationers, but only those not subsequently incarcerated. (Stats. 1976, ch. 434, § 2, p. 1111.) Although not explicit in this history, costs were likely on the mind of the Legislature when it
selecti vely extended the right to obtain certificates of rehabilitation to some former probationers. ( See also Cal. Adult Authority, Enrolled Bill Rep. on Assem. Bill No. 2403 (1975

- 1976 Re g . Sess.) July 1, 1976, pp. 2

- 3 [ recommending governor
veto of the 1976 b ill extending certificate of rehabilitation to former probationers not subsequently incarcerated because “ [t] he measure greatly expands the eligibility for obtaining certificates of rehabilitation and pardon by including persons who have accusatory pleadin gs dismissed and persons convicted of a felony , but not sent to state prison.

. . . Increased workload generated by this expansion is unknown, but could include many persons from the county level who would become eligible to file with the respective counti es and the Governor’s17

Office, a petition for a certificate of rehabilitation and pardon.”].) We do not imply that rational basis review requires the Legislature to rely on the rational
basis we discuss here

. But we find it relevant that administrative co sts may have been one driving force for the limitation on subsequently incarcerated former probationers.
Such c oncern s over preservation of resources proved prescient. Probation is currently the most used criminal sentencing tool for felony convictions i n California. In 2014, for example, California courts sentenced approximately 59. 5 percent of convicted felons to probation or probation with jail , and only 22.7 percent to confinement in prison or jail alone. ( See Criminal Justice Statistics
Center , Cri me in California (2014) Cal. Dept. of Justice, pp. 51 < https:// oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/ publications/candd/cd14/cd14.pdf > [as
of Feb. 1 , 201 8 ]. ) In the same year, approximately 244,122 felons were on active probation

. ( I

d. at p. 54.) In contrast, prisons and jails together had an average daily population of 165,025

. (See CDCR Office of Research, Fall 2014 Population Projections (Nov. 2014) Cal

. Dept. of Cor rections and Rehabilitation,
p. 9 < http://www.cdcr.ca.gov/Reports_ Research/Offender_Information_Services_ Branch/Projections/F14Pub.pdf > [as of Feb. 1 , 201 8 ] [in 2014, 135,484 adults in institutions]; Cal. Board of State and Community Corrections, Jail Profile Survey: Fourth Quarter Calendar Year 2014 Survey Results ( 4th Quarter 2014) p. 2

< http://www.bscc.ca.gov/downloads/2014_4th_Qtr_JPS_Full_Report.pdf > [as of
Feb. 1 , 201 8 ] [in 2014, 25,005 sentenced males and 4,536 sentenced females in county jails ]

. ) These data are at least consistent with the conclusion that m ore former probationers exist in California than former prisoners. The larger number of former probationers creates a higher relative burden on judicial and executive18

branch resources that the Legislature rationally could have sought to decrease by limiting former probationers’ access to certificates of rehabilitation. 3 Not only was it within the realm of the term “rational” for the Legislature to limit the number of former probationers who have access to certificates of rehabilitation, but the statutory fram ework taking account of subsequent
incarceration was also rational. A s legislators grasped the resource implications of extending eligibility for certificates of rehabilitation , they conceivably recognized the value of a scheme to manage demand for such c ertificates . Through section
4852.01’ s bar on eligibility f or subsequently incarcerated former probationers, the Legislature extended the possibility of obtaining a certificate of rehabilitation only to those former probationers that could rationally be s een as showing the mo st promise for rehabilitation. I ncarceration may result from a conviction representing a probationer’s recidivist behavior, or may result from activity that
has little or no bearing on the former probationer ’ s ultimate capacity for
rehabilitation . But it would have been at least rational for the Legislature to presume that subsequently incarcerated former probationers are less likely to
rehabilitate than those who avoid subsequent incarceration. And it is a simple
matter for court s to determin e whether a petitioner for a certificate of rehabilitation

3 To be sure, we are not aware of the 1976 Legislature expressing any expectations about the modern ratio of former probationers and former prisoners. But this does not affect the current rationa lity of the scheme because the Legislature modified section 4852.01 in 2014 and 2015 and took no action to modify the bar on subsequently incarcerated former probationers. (See Stats. 2014, c h . 280 , § 3 ; Stats. 2015, c h . 378, § 6 .) Moreover, even if the ratio differed in 1976, the addition of former probationers represented a substantial increase in the number of potential certificate of rehabilitation petitioners that rationally could have caused the Legislature to look for ways of limiting costs. (See Adult Authority Chairman Raymond C. Brown, letter to Herbert E. Ellingwood, Legal Affairs Secretary in Governor’s Office, re Assem. Bill No. 3265 (1973

- 1974 Reg. Sess.) Sept. 4, 1974 [stating that there were “[t]hirty

- five thousan d (approximate) felony probation grants per year”].)19

has been subsequently incarcerated

. Although not a perfect proxy for rehabilitation, the “subsequent incarceration” bar at least bears a rational
connection to rehabilitation and the preservation of resources

. S ection 4852.01’s eligibility criteria might not reflect the ideal rehabilitative system

. But we cannot cast aside the deferential nature of our inquiry

. ( People v. Turnage , supra , 55 Cal.4th at p. 77.) T he question we must
resolve in this case is whether the Legislature’s choices survive rational basis scrutiny . When we analyze this question, we treat the statute’s potential logic and assumptions far more permissively than with other standards of constitutional or regulator y review. ( Ibid. [“When conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.”] ; Johnson , supra , 60 Cal.4th at p. 887 [“ [T] he Legislature is
afforded considerable latitude in defining and setting the consequences of criminal
offenses

. ”] .) Under this permissive standard, denying subsequently incarcerated former probationers certificate s of rehabilitation is sufficiently grounded in
distinctions from other classes of convicted felons that it can be considered a rational manner of providing some former probationers a valuable rehabilitative
tool in the face of scarce resources

. The rationality of this distribution is further supported by the existence of
alternatives to section 1203.4 dismissal potentially available to Chatman and
other s in his position

. S ubsequently incarcerated former probationers continue to
remain eligible for executive pardons , and the Penal Code makes clear that
certificate s of rehabilitation a re meant to serve as “an additional, but not an exclusive, procedure for the restoration of rights and applications for pardon.” ( § 4852.19.) There may be other statutory avenues to obtain the particular real

world benefit the subsequently incarcerated former probationer hopes to obtain. In the context of the community care license that Chatman seeks, for example, the20

Department of Social Ser vices can “ grant an exemption regarding the
conviction

. . . if the employee or prospective employee has received a certificate of rehabilitation.” (Health & Saf

. Code, § 1522, subd. (g)(1)(A)(ii).) But that same provision also allows the Department of S ocial Services to “grant an exemption regarding the conviction

. . . if the employee or prospective employee
has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code f or at least 10 years, and has the recommendation of the district attorney representing the employee ’ s county of residence.” ( Ibid. ) This alternative pathway features a few
of the same requirements as a certificate of rehabilitation , but is available to
p ersons seeking a community care license without having obtained a certificate of
rehabilitation. The eligibility criteria in section 4852.01 seem to reflect a rational assumption that creating situation

- specific additional exceptions for subsequently incarcerated former probationers is a more cost

- effective solution than allowing all subsequently incarcerated former probationers access to certificate s of
rehabilitation

. Chatman compa res the distinction at the heart of section 4852.01 to the one
we invalidated in Newland v. Board of Governor s (1977) 19 Cal.3d 705 ( Newland )

. The Court of Appeal relied heavily on Newland as well. The plaintiff
in that case , William Newland , had applied for a teaching credent ial. His application was denied because he had seven years earlier been convicted of
misdemeanor lewd conduct in violation of section 647, subdivision (a) , and

“ section 13220.16 of the Education Code barred issuance of a credential to anyone convicted of

. . . violations of Penal Co de section 647, subdivision (a).” ( Id. at p. 707.) B efore Newland’s appeal of that denial was resolved , the Legislature
amended section 13220.16 “ to remove the bar for anyone found fit to teach provided he met three conditions: he had applied for or obtained a certificate of21

rehabilitation under Penal Code section 4852.01, his probation had been terminated, and the information or accusation had been dismissed under Penal
Code section 1203.4. ” ( Ibid. ) N ewland satisfied the second and third of those conditions. But he could not satisfy the first condition because certificates of rehabilitation were only available to those convicted of felonies, and Newland had
been convicted of a misdemeanor.
Once the statute was amended, the Attorney General did “not attempt to suggest any rational basis for the challenged classification.” ( Newland , supra , 19
Cal.3d at p. 71 3 .) To the contrary : the Attorney General “virtually concede[d]
that if Education Code sectio n 13220.16 and Penal Code section 4852.01 together work to deny misdemeanants relief available to felons, that discrimination renders either or both statutes unconstitutional.” ( Ibid. ) The Attorney General made this argument in order to “propose[] that w e construe Penal Code section 4852.01 to permit a convicted misdemeanant who is affected by section 13220.16 to petition
for a certificate of rehabilitation ,” based on “the principle ‘that a statute which is reasonably susceptible o f two constructions shou ld be interpreted so as to render it constitutional.’ ” ( Ibid. ) Although we did not use that principle to resolve the

case , we acknowledged that the statutory scheme’s exclusion of misdemeanants may have been inadvertent. (See id. at p. 712 [ “ [T] he Legi slature’s insistence in
amended section 13220.16 that all persons seeking relief under subdivision (b) of that statute apply for certificates of rehabilitation may simply be a case of legislative oversight

— a failure to realize that this requirement would block any relief to a misdemeanant.” ].) But w hatever the explanation for that legislative choice, we reasoned that “[t]he Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particular ly incorrigible offenders who are beyond hope of rehabilitation.” ( I bid. )
So we held that the statute was unconstitutional. (See id. at p. 713 [ “ [W] hether the22

result of oversight or intention, the statutory classification discriminating against
misdemea nants, lacking a rational relationship to the legislative goals, denies misdemeanants the equal protection of the laws

. ”].)
The requirements invalidated in Newland

— for which the Attorney
General never tried to offer a rational basi s, and which we descr ibed as so illogical
that the nature of the ir operation appeared inadvertent

— were not as minimally
rational as section 4852.01 ’s eligibility criteria

. The statute at issue in Newland
barred misdemeanants from teaching while creating an exemption that permitted
felons to teach , simply because one of the requirements for triggering the exemption

— a certificate of rehabilitation

— was only available to felons

. W e explained t hat “[t]his statutory discrimination against misdemeanants can claim no
rational relationship to the protective purpose of section 13220.16.” ( Newland , supra , 19 Cal.3d at p. 712 .) W hereas Newland could have obtained a teaching
credential if he had simply been convicted of a felony , not a misdemeanor

— in other words, if he had been convicted of a more serious offense

— Chatman ’s ineligibility reflects his own response to the unique opportunities he received after he was sentenced to probation

. Chatman was eligible for a certificate of
rehabilitation up until he was incarcerated for driving under the influence after a
court had dismissed his robbery conviction , thus showing less promise for rehabilitation under the metric devised by the Legislature

. Until that moment , he
had the very same eligibility as other felons.
The statute at issue here

–– despite any limitations in the persuasive appeal of its underlying policy justification

–– sits in a different category in comparison

to the statute in Newland

. The distinctions made in s ection 4852.01’s eligibility
criteria a re rationally related to the legitimate government purpose of preserv ing government resources by providing certificate of rehabilitation resources only to former prisoners (who have a greater relative need for such relief and a smaller23

population than form er probationers) and former probationers not subsequently incarcerated ( who presumably show greater promise for rehabilitation than subsequently incarcerated former probationers ). The unequal treatment challenged in this case begins only if a felon reoffe nd s after completing his or her probation

. At that point, the Legislature has a rational basis to conclude that
resources are better allocated to former prisoners than former probationers

. T hose former probationers must turn to other pathways to relief, such as an executive pardon or a different statutory exemption

. Chatman emphasize s in his briefing that rehabilitation “is a fundamental value in our justice system , ” and the “arbitrary technical bar” at issue in this case unfairly denies hundreds of former probationers “a chance for the court to consider
their efforts at bettering themselves and their community.” Surely much of that is
true at some level. F elons endeavoring to improve their lives no doubt deserve a measure of mercy

— and we are sens itive to the increasingly troubling fact that the law imposes severe consequences on felony convicts long after they have
served their sentence . ( See , e.g., Packingham v. North Carolina (2017) __ U.S. __ [137 S.Ct. 1730, 1737] [noting the “troubling” fact that a North Carolina statute concerning social media access for registered sex offenders “impose[d] severe restrict ions on persons who already ha[d] served their sentence and [we]re no longer subject to the supervision of the criminal justice system ” ]; In re J.C. (2017) 13 Cal.App.5th 1201, 1211 [noting the “substantial

— even harsh and severe” nature of many non

- penal consequences of a felony conviction] .) But our role in
this case is to review the rationality of the statutes at issue, not measur e thei r fairness or wisdom

. Th e Legislature may ultimately revisit the statutory
framework , especially in light of recent legislation that updates the certificate of
rehabilitation scheme to deal with felons imprisoned in county jail under the24

state’s Publ ic Sa fety Realignment initiative. 4 Yet e ven if the Legislature could have chosen to enact a more sensible or judicious statutory scheme than the one in place today , section 4852.01’s current eligibility criteria are constitutional because

t hey rationally serve a legitimate government purpose.

4 Regarding this legislation, Chatman’s answer brief in this court contains a claim “in the alternative” that the 2013 enactment of section 1203.41 rendered section 4852.01 unconstitutional. Section 12 03.41 allows for felons imprisoned in county jail to move for dismissal of their convictions. Although section 1203.41 bears similarities to section 1203.4, a 2016 amendment to section 4852.01 nonetheless clarified that felon s whose convictions were dismi ssed under section 1203.41 are eligible for certificates of rehabilitation even if they are subsequently incarcerated. (See Stats. 2015, ch. 378 , § 6.) Neither the trial court nor the Court of Appeal addressed this claim about section 1203.41 dismissal , because Chatman never mentioned the claim until his answer brief in this court. We have previously declined to address new claims related to a statute’s amendment that were not raised until the answer brief in this court. (See People v. Brown (2012) 54 C al.4th 314, 322 , fn. 11.) As in Brown , “[t]his new claim is not properly before us, and
we do not address it.” ( Ibid. )25 V. The Legislature enacted a scheme providing relief to former prisoners. It enacted a different, and more restrictive , scheme to govern former probationers’
access to certificates of rehabilitation

–– a scheme applying to individuals who had an alternative process for mitigating the longer

- term consequences of their felony
convictions. In doing so, legislators weighed the broad class of problems associated with the administrative resources necessary to adjudicate eligibility for
certificates of rehabilitation and could have rationally determined that preservation of government resources required the extension of certific ates of rehabilitation to only those convicted felons with the highest relative need and those that might sensibly be understood to show the mo st promise for rehabilitation

— former prisoners and former probationers not subsequently incarcerated

. That this choice is within the permissible bounds of rational basis review is further evinced by the
fact that former probationers outnumber former prisoners , and thus would create a larger burden on state resources . Former probationers remain eligible for other statutory exemptions as well as for pardons, and they remain eligible for
certificate s of rehabilitation too if they avoid subsequent incarcerat ion

. Because

s ection 4852.01’s eligibility criteria therefore serve a legitimate government
purpose , those criteria are minimally rational enough to withstand rational basis scrutiny. Accordingly, we reverse the ju dgment of the Court of Appeal. C UÉLLAR , J. W E C ONCUR : C ANTIL

- SAKAUYE , C. J.

C HIN , J. C ORRIGAN , J. L IU , J. K RUGER , J. M URRAY , J. *

* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Chatman

__________________________________________________________________________________ Unpublished Opinion Original Appeal Original P roceeding Review Granted XXX 2 Cal.App.5th 56 1 Rehearing Granted

__________________________________________________________________________________ Opinion No. S237374 Date Filed: February 1, 2018

_________________________________________________________ _________________________ Court: Superior County: Alameda Judge: Paul A. DeLucchi

__________________________________________________________________________________ Counsel: David Reagan for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra , Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit , Kevin Kiley, Donna M. Provenzano, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for Plainti ff and Respondent.Counsel who argued in Supreme Court (not intended for publication with opinion):

David Reagan 725 Washington Street, Suite 200 Oakland, CA 94607 (510) 506

- 9061

Catherine A. Rivlin Deputy Attorney General 455 Golden Gate Aven ue, Suite 11000 San Francisco, CA 94102

- 7004 (415) 703

- 5977