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Court Incorrectly Grants Certificate of Rehabilitation By Not Evaluating Recent Drug Offense

Posted by Greg Hill

Mitchell Zeigler was convicted in 1989 of two felony counts of transportation or sale of narcotics (Health and Safety Code § 11352) in Santa Clara County. He was granted probation, but violated it in 1992 and consequently was committed to state prison. He was released in 1999.

In 2000, Zeigler was arrested and convicted of possession of a convicted substance (Health and Safety Code § 11350). He was granted probation, conditioned upon his serving a small amount of time in county jail, ending on April 19, 2000. He then successfully completed probation.

On June 1, 2007, Zeigler filed a petition for a certificate of rehabilitation regarding his felony convictions from 1989 and 2000. However, at some time in 2007, Zeigler was again arrested for possession of narcotics.

On October 22, 2007, counsel for Zeigler withdrew the petition for a certificate of rehabilitation. In the same month, Zeigler was found eligible for Proposition 36 for the 2007 drug offense and he entered the program.

Zeigler then successfully completed the Prop 36 program in June, 2009. As a result, his plea was withdrawn, the judgment was set aside and his 2007 case was dismissed.

On November 23, 2010, Zeigler filed a motion to renew his petition for a certificate of rehabilitation regarding the same 1989 and 2000 convictions. In the motion, he argued that due to the nature of those offenses, he was subject to a seven-year period of rehabilitation. He argued that his seven year period started when he was released from custody in April, 2000 and ended in April, 2007.

He argued that the seven-year period was not interrupted by his 2007 offense because the case was ultimately dismissed due to his successful completion of Prop 36.

He acknowledged that there were no cases “dealing with the intersection" of Prop 36 and the seven year period of rehabilitation.

The prosecution argued that the request for a certificate should be denied because the plain text of Penal Code § 4852.05 requires, the applicant to, during the period of rehabilitation, “live an honest and upright life… and obey the laws of the land." As Zeigler admitted he committed a felony in 2007, the petition should be denied on that basis alone.

The Santa Clara County judge granted Zeigler’s application and the People appealed to the Sixth Appellate District.

In People v. Mitchell Lewis Zeigler(2012 DJDAR 16066), the Sixth Appellate District revered the trial court. The court first noted, as if parenthetically and with some suggestion of irritation is that Zeigler could have simply submitted a pardon application directly to the governor under Penal Code § 4800. The court then explained its reversal, explaining that the trial court had discretion to receive evidence regarding the conduct that resulted in Zeigler’s 2007 arrest.

The Appellate Court then ruled that the trial court erred by not inquiring into Zeigler’s conduct in 2007 and evaluating it. This failure to consider such conduct was a mistake and consequently, the court reversed and remanded the case back to the trial court.

The appellate court noted that the record from the trial court was quite “sparse." There was no information concerning the type or amount of drugs involved, the circumstances of the arrest, whether defendant completed Prop 36 with any positive drug tests. By noting such missing information, the appellate court seemed to suggest the trial court should address such facts if Zeigler asked for a further hearing on his application for a certificate of rehabilitation.

If you are interested in removing a conviction from your criminal record, contact Greg Hill. If you are not eligible for expungement, a pardon or a certificate of rehabilitation is also an option. Call Greg Hill to discuss the facts of your case. He is an attorney in Torrance, California and a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates also represents clients in Torrance, Long Beach and the surrounding areas in DUI, domestic violence, drug offenses, theft offense, sex crimes and restraining orders, among other crimes. Visit the firm’s website at or the firm’s Facebook page at

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