California v. ShepardAnnotate this Case
Defendant Malcolm Shepard, Sr. appealed an order denying his petition for a certificate of rehabilitation pursuant to Penal Code section 4852.01. In 1991, defendant pled guilty to the crime of forcible rape and admitted using a firearm in the commission of the offense He was sentenced to six years in state prison and was released on parole in 1994. In 1995, while still on parole, defendant was convicted of one count of possession of cocaine base for sale, one count of possession of a controlled substance for sale, and one count of possession of a firearm by a convicted felon. He was sentenced to serve 11 years in state prison and was released on parole in 2004, which was discharged in 2007. On appeal to the Court of Appeal, defendant argued 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, the Court could not conclude defendant was deprived of the hearing contemplated by section 4852.01 et seq. in violation of his right to due process.