Filed 6/6/22 P. v. Hamilton CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MEMORANDUM OPINION[1]

Per a negotiated disposition, David Allen Hamilton, Jr., pleaded no contest in the Fresno Superior Court to felony assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c); count 1) and felony evasion of a peace officer by reckless driving (Veh. Code, § 2800.2, subd. (a); count 2). The court suspended execution of its sentence and placed Hamilton on probation. Following a probation transfer to San Mateo County, after his probation period ended Hamilton petitioned the San Mateo Superior Court to reduce count 2 to a misdemeanor and to dismiss both counts. (Pen. Code, § 1203.4.) The court denied his petition without a hearing because: “Defendant’s convictions are recent and serious in nature.” Hamilton appeals as to count 1, arguing dismissal is mandatory; the People agree subject to proof, and so do we. However, we reverse as to both counts.

Penal Code section 1203.4 is “a rehabilitative provision that rewards a person who has successfully completed probation” (People v. Park (2013) 56 Cal.4th 782, 803), by “permit[ting] eligible defendants to obtain dismissal of accusations after completing probation” (People v. Chavez (2018) 4 Cal.5th 771, 776; People v. Mgebrov (2008) 166 Cal.App.4th 579, 586–587 [individual counts or entire accusatory pleading]). An eligible defendant is one who pleaded guilty or no contest to one or more offenses that are not statutorily excluded; fulfilled all probation conditions for the entire probation period; and is not currently serving a sentence, on probation, or criminally charged (Pen. Code, § 1203.4, subd. (a)(1), (5)). Relief is mandatory for a defendant who satisfies these conditions and discretionary for some ineligible defendants “in the interests of justice” (Pen. Code, § 1203.4, subds. (a)(1), (c)(2)). (See generally People v. Holman (2013) 214 Cal.App.4th 1438, 1458–1466.) “Where the propriety of the court’s order on a petition for relief under [Penal Code] section 1203.4 turns on the interpretation of the relevant statutory provisions, it presents an issue of law, which we review de novo.” (People v. Seymour (2015) 239 Cal.App.4th 1418, 1428.)

As to count 1, the statute does not exclude convictions under Penal Code section 245 (Pen. Code, § 1203.4, subd. (b)); thus, dismissal is mandatory if Hamilton satisfies the other statutory criteria (Pen. Code, § 1203.4, subd. (a)(1); People v. Smith (2014) 227 Cal.App.4th 717, 724–725, 731 [“ ‘when a defendant has satisfied the terms of probation, the trial court [has] no discretion but to carry out its part of the [plea] bargain’ ”]). In his petition he declared he “fulfilled the conditions of probation for the entire period” and “[was] not serving a sentence . . . , on probation . . . , or under charge of commission of any crime . . . .” But the superior court denied his petition without a hearing “apparently based solely on the fact that [his] convictions were ‘recent and serious in nature,’ ” which was error; “the [recency and] seriousness of the original offense [were] wholly irrelevant to the issue before it.” (People v. Hawley (1991) 228 Cal.App.3d 247, 249–250 & fn. 4.)

As to count 2, we address it “even though the issue was not raised by [Hamilton] either in the trial court or before us.” (People v. Norwood (1972) 26 Cal.App.3d 148, 152 [“if justice requires it”]; People v. Schoennauer (1980) 103 Cal.App.3d 398, 406 [a reviewing court “ ‘ “[can] decide a case upon any points that its proper disposition may seem to require, whether taken by counsel or not” ’ ”].) The statute excludes convictions under Vehicle Code section 2800.2 from mandatory dismissal (Pen. Code, § 1203.4, subd. (c)(1); Veh. Code, § 12810, subd. (d)(1)), but they are still eligible for discretionary dismissal “in the interests of justice” (Pen. Code, § 1203.4, subd. (c)(2)), which was a basis for Hamilton’s petition. Though discretionary, “ ‘ “[a]ll exercises of discretion must be guided by applicable [law] . . . . If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion . . . , [then] a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.” ’ ” (Perez v. Torres‑Hernandez (2016) 1 Cal.App.5th 389, 396–397.) That is the circumstance here: The court denied the entirety of Hamilton’s petition, which was apparently unopposed, without a hearing. “In explaining its decision, the trial court only provided the following statement: ‘Defendant’s convictions are recent and serious in nature.’ ”

Because it appears the superior court did not consider the merits of Hamilton’s petition, we reverse and remand to the superior court to determine in the first instance whether, in light of the evidence presented, the statute requires or the interests of justice warrant relief. We express no opinion on what that determination should be. (People v. McLernon (2009) 174 Cal.App.4th 569, 572, 577–578.)

DISPOSITION

We reverse the San Mateo Superior Court’s order of January 13, 2021, and remand to reconsider Hamilton’s petition and rule on the merits as to both count 1 and count 2.

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Jackson, P. J.

WE CONCUR:

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Burns, J.

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Wiseman, J.*

A162231/People v. David Allen Hamilton, Jr.

[1] Cal. Stds. Jud. Admin., § 8.1; Ct. App., First Dist., Local Rules of Ct., rule 19.

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.