Humes v. State of California et al

Filing 28

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/15/2018 RECOMMENDING defendant's 16 motion to dismiss be granted; and this case be closed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

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No. 2:18-cv-0244 TLN CKD P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,
Defendants.

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Plaintiff is a Sacramento County Jail prisoner proceeding pro se against defendant Xavier

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Beccera in his official capacity as the Attorney General of the State of California. Plaintiff’s

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remaining claim arises under the Due Process Clause of the Fourteenth Amendment and concerns

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plaintiff’s name appearing in California’s Sex and Arson Registry. Plaintiff claims his name

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should be removed. Defendant has filed a motion to dismiss.

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The court reviews defendant’s motion pursuant to Federal Rule of Civil Procedure

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12(b)(6) which authorizes dismissal if a complaint fails to state a claim upon which relief can be

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granted. Dismissal for failure to state a claim is proper only if it is clear plaintiff cannot prove

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any set of facts in support of the claim that would entitle him or her to relief. See Morley v.

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Walker, 175 F.3d 756, 759 (9th Cir. 1999). When considering a Rule 12(b)(6) motion, the court

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takes as true all allegations of material fact stated in the complaint, and construes them in the light

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most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996).
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Also, the court generally considers only the complaint and attached documents. Van Buskirk v.

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CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002). However, as here, the court may also consider

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facts it judicially notices under Federal Rule of Civil Procedure 201 such as “matters of public

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record.” Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).

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In his complaint, plaintiff alleges that convictions for crimes he does not identify were

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expunged by the Superior Court of Placer County on April 11, 2012. Plaintiff alleges that the

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expungement of these convictions releases him of the requirement under California Penal Code

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§290 to register as a sex offender, and therefore his name should be removed from the Sex and

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Arson Registry.

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Defendant has provided the court with case records from Placer County Superior Court

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Case No. 62-042890. After a review of those records, the court takes judicial notice, pursuant to

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Federal Rule of Civil Procedure 201, of the following facts:

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1. Plaintiff was convicted of possession of child pornography and child molestation in

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violation of California Penal Code sections 311.11(a) and 647.6(a) and sentenced on March 15,

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2005.

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2. Convictions for these offenses were dismissed on April 11, 2012 pursuant to a motion

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submitted by plaintiff in accordance with California Penal Code § 1203.4, thereby releasing

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plaintiff “from all penalties and disabilities resulting from” his offenses.

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Petitioner’s convictions require that he register with the chief of police in the city where

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he lives. Cal. Penal Code §290. Under California Penal Code § 290.5, a person convicted of a

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violation of section 311.11(a) or 647.6(a), can be relieved of the requirement to register if they

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obtain a “certificate of rehabilitation” under California Penal Code 4852.01, et seq.

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Based on the records filed by defendant, the court also judicially notices that plaintiff

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sought a “Certificate of Rehabilitation” from the Superior Court of Placer County, but his petition

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was never adjudicated and was dropped from the court’s calendar on January 14, 2013. Plaintiff

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fails to allege, or point to anything in his pleadings or opposition to defendant’s motion to dismiss

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which suggests that he has obtained a “Certificate of Rehabilitation.”

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In his pleadings, plaintiff does point to Kelly v. Municipal Court of City & County of

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S.F., 160 Cal. App. 2d 38, 44 (1st Dist. 1958), in which the California Court of Appeal held that

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California Penal Code § 290 is “criminal in character” and imposes a penalty expiring upon

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fulfillment of the conditions of probation. However, in People v. Hamdon, 225 Cal. App. 4th

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1065, 1073 (1st Dist. 2014) the same court found “Kelly is no longer good law.” Specifically,

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“the subsequent enactment of section 290.5 evinces a legislative determination that the need for

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registration continues until the registrant obtains a certificate of rehabilitation or pardon.” Id.

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Plaintiff’s claim for violation of due process under the Fourteenth Amendment is

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premised upon plaintiff’s assertion that, under California law, he has been relieved of the

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requirement to register under California Penal Code §290. Since that is not the case, and plaintiff

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fails to state a claim for an independent violation of the Due Process Clause, the court will

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recommend that defendant’s motion to dismiss be granted, and this case be closed.

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In accordance with the above, IT IS HEREBY RECOMMENDED that

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1. Defendant’s motion to dismiss (ECF No. 16) be granted; and

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2. This case be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 15, 2018

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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hume0244.dis

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