Shepard

Defendant Malcolm Shepard, Sr., appeals from an order denying his petition for a certificate of rehabilitation pursuant to Penal Code section 4852.01. He contends the trial court abused its discretion and violated his constitutional right to due process by denying the petition in his absence, after the bailiff allegedly told him the petition had already been denied, handed him the court’s tentative ruling, and sent him home. The problem is there is no evidence in the record indicating defendant was sent home, as he claims on appeal. Based on the lack of evidence in the record, we cannot conclude defendant was deprived of the hearing contemplated by section 4852.01 et seq. in violation of his right to due process.

We asked the parties for supplemental briefing on the question of whether defendant was deprived of the right to counsel in light of the fact it did not appear from the record of the hearing that defendant was represented by counsel at that time. Section 4852.04 provides in relevant part: “Each person who may initiate the proceedings provided for in this chapter shall be entitled to receive counsel . . . .” (Italics added.) Section 4852.08 provides in relevant…