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Court of Appeal:
Rehabilitation Denial Amounted to ‘Miscarriage of Justice’
Opinion Says Judge Abused Discretion by Considering Non-Statutory Factors in Denying Certificate of Pardon
By Kimber Cooley, Staff Writer
Div. Three of the Fourth District Court of Appeal held yesterday that it was an abuse of discretion for a judge to consider non-statutory factors in denying a petition for a certificate of rehabilitation and pardon by a convicted murderer, released after serving 27 years in prison, who has obtained employment, earned a college degree and started an organization to help at-risk youth.
The appellate court found that the trial judge failed to consider the petitioner’s post-release conduct, as required by the governing statutes, and instead looked to factors such as the nature of the underlying crime, the fact that the petitioner had pled guilty to a lesser offense than was originally charged, and an inaccurate conclusion that he had failed to adequately acknowledge culpability.
In the opinion reversing the order by San Bernardino Superior Court Judge J. David Mazurek, Justice Martha K. Gooding wrote:
“The trial court’s abuse of discretion amounts to a miscarriage of justice….We publish this opinion to clarify the factors the trial court may consider when evaluating a petition for a certificate of rehabilitation and pardon.”
Acting Presiding Justice Eileen C. Moore and Justice Thomas M. Goethals joined in the opinion.
Petition for Certificate
Appealing the denial was George Dennis Rounds Jr., who was charged with the murder of his step-uncle Alonzo Graham and the attempted murder of his other step-uncle, Thomas Graham, after Rounds shot both men in the driveway of their home in 1981 following an argument over a few dollars owed to Rounds for washing a car.
Rounds turned himself in the day after the shooting.
In February 1983, Rounds pled guilty to one count of second-degree murder and one count of attempted murder. He was sentenced to an indefinite term of 15 years to life in prison, plus a concurrent definite term of seven years.
Rounds was released on parole on Aug. 3, 2010 and was discharged from parole on Oct. 3, 2014. On Dec. 27, 2021, seven years after he was discharged and 38 years after committing the crimes, Rounds filed a petition for a certificate of rehabilitation and pardon pursuant to Penal Code §4852.01 et seq.
Statutory Provision
Sec. 4852.12 provides:
“ In a proceeding for the ascertainment and declaration of the fact of rehabilitation under this chapter, the court…may request from the district attorney an investigation of the residence of the petitioner, the criminal record of the petitioner as shown by the records of the Department of Justice, any representation made to the court by the applicant, the conduct of the petitioner during the period of rehabilitation, including all matters mentioned in Section 4852.11, and any other information the court deems necessary in making its determination….”
The issuance of a certificate is ultimately transmitted to the Governor and constitutes an application for a full pardon, which may be granted without any further investigation.
In February 2022, the trial court referred the matter to the San Bernardino District Attorney’s Office to conduct a background investigation, and an investigative report by the office concluding Rounds was statutorily eligible for a certificate was filed with the court.
Mazurek conducted a hearing on the petition in November 2022, which was opposed by the prosecution due to concerns that Rounds had failed to demonstrate accountability and restoration.
‘Honest, Upright Life’
Sec. 4852.05 provides that a petitioner for a certificate of rehabilitation “shall live an honest upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.”
In support of his contention that he has lived such a life, Rounds attached to his petition certificates of recognition from the Catholic Diocese of San Bernardino for participating in the Creating Hope with Youth Program, from the County of San Bernardino for completing a California Department of Corrections and Rehabilitation program, and from the California Assembly for other accomplishments.
He also provided evidence that he formed the mentorship organization DrivenBound, LLC in 2021, focusing on providing “at promise” male youth with life skills and examples of adults who overcame obstacles associated with serving time in the criminal justice system. He cited involvement with Operation New Hope, a reentry program for the previously incarcerated, which he participated in from his release in 2010 until 2022.
Noting that Rounds has also earned an associate of arts degree from San Bernardino Valley College and works for Amazon, the jurist opined:
“He has displayed exceptional reentry into the community; working and actively engaged in the local cities, volunteering, mentoring, and now educating the next generation to develop healthy relationships, positive decision-making skills, and a road map to success.”
Abuse of Discretion
Acknowledging the heavy discretion afforded to judges in this area, she clarified that “[o]nly if we can conclude as a matter of law that the court’s expressed concerns regarding the lack of Rounds’s rehabilitation ‘was not a legitimate consideration in the exercise of its discretion’ may we conclude the court exceeded the bounds of reason in denying the petition.”
Noting that Mazurek relied “primarily” on the conclusion of the Parole Board at a 2006 hearing that the offense was especially callous, she acknowledged that “[m]urder, of course, is by its very nature a serious and brutal crime, with consequences that will likely be forever felt by family and friends of the victims.”
However, she remarked:
“Nothing in the statute or case law permits the trial court to consider the specifics of the crime itself or the fairness to the victim….To the contrary, section 4852.03 provides the ‘period of rehabilitation’ begins upon the discharge from custody or the release from parole….”
Seriousness of Crime
The jurist continued:
“If a court could harken back to the seriousness of the long-ago offense to deny relief, no one who has committed a serious or violent crime could ever receive a certificate of rehabilitation. That is not what the statute provides and, given the Legislature’s failure to exclude convicted murderers from eligibility, manifestly not what the Legislature intended.”
Gooding rejected Mazurek’s other grounds for denying the petition, finding that Rounds had not denied culpability by “sort of” asserting self-defense in saying that he shot the victims after threats back and forth between the parties, pointing out that he also said “I have always felt sorry for what I did” and “I will spend the rest of my life trying to make amends.”
She also found fault with Mazurek assuming that Rounds pled guilty in order to receive a more favorable sentence, saying “[e]ven assuming the court correctly surmised Rounds’s motivation for pleading to the second-degree murder charge, that is not properly or fairly part of the analysis under section 4852.05.”
Gooding declared that Mazurek’s denial of Rounds’ petition was a “manifest abuse of discretion, as it was based almost entirely on factors not properly part of the statutory analysis, amounting to a miscarriage of justice.”
The case is People v. Rounds, G063593.
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