Zeigler

While I agree that the superior court erred in granting the petition, my reasoning diverges from that of my colleagues. Therefore, I write separately to explain my analysis.

I. Background

In June 2007, 58-year-old respondent Mitchell Lewis Zeigler filed a form petition seeking a certificate of rehabilitation. His petition listed his prior felony convictions. The one he described as his most recent felony conviction was a 2000 conviction for violating Health and Safety Code section 11350 (possession of a controlled substance). Zeigler asserted that he had received a suspended prison sentence, been granted probation, and been released from custody on that conviction in April 2000 “PTOR” (probation terminated on release). He described his second most recent felony conviction as a 1989 conviction for violating Health and Safety Code section 11352 (transportation or sale of a controlled substance). 1 Zeigler explained that he had originally been granted probation for the 1989 conviction, violated probation, been committed to prison, been released on parole, violated parole numerous times, and eventually been discharged from parole in 1999. Zeigler did not identify any other felony…

Mitchell Lewis Zeigler, defendant and respondent, petitioned for a certificate of rehabilitation regarding two prior drug convictions in 1989 and 2000. The People opposed the petition on the basis that it was barred by defendant’s new, nonviolent drug offense in 2007 for which he was granted probation under Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000).

Defendant argued that, because his 2007 conviction was set aside and the charges were dismissed after he successfully completed a Proposition 36 drug treatment program, the offense could not be considered in evaluating his petition for a certificate of rehabilitation. As defendant pointed out, the law provided that records “pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under [Proposition 36] may not, . . . , be used in any way that could result in the denial of any . . . certificate.” (Pen. Code, § 1210.1, former subd. (d)(3).)

The People countered that, though it may not be allowed to put on evidence of defendant’s arrest and conviction, it should have been allowed to put on evidence regarding the underlying conduct that led to the…