P. v. Hurd

Filed 3/27/07 P. v. Hurd CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Hon. Graham Anderson Cribbs, Judge. Affirmed.

Rozanski & Associates, Stanley H. Rozanski, Matthew T. Surlin and Barry J. Post, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

In this appeal, defendant Charles Christopher Hurd argues unsuccessfully that the trial court abused its discretion in denying his motions to reduce his felony convictions to misdemeanors under Penal Code^[1]section 17, subdivision (b), and in failing to dismiss his convictions under section 1203.4.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 30, 2003, Charles Christopher Hurd, pursuant to a plea agreement, pleaded guilty in case No. INF031149 to attempted rent skimming ( 664, Civ. Code,  892), and pleaded guilty in case No. INF034757 to receiving stolen property ( 496) and misdemeanor false advertising (Bus. & Prof. Code,  17500). (The facts of defendants brazen crimes, though not pertinent to this appeal, are well documented by this court in case No. E034153, in which defendant unsuccessfully argued for reversal of his convictions or modification of his sentence on grounds that his guilty pleas were not valid since there was no factual basis to support them, the prosecutor failed to honor a post-agreement modification, and the three-year probation term substantially deviated from his negotiated sentence and prejudiced him.) Imposition of both sentences was suspended for three years and defendant was placed on formal probation, subject to certain terms and conditions − including a requirement that he serve 360 days in county jail − set forth in a written agreement.

In February 2005, the court modified defendants probation in case No. INF031149 to summary probation. The court did so based on a recommendation by the probation department, which had reached its conclusions from the facts that during defendants 20 months on formal probation, he had paid in full his restitution obligation, maintained employment, and did not incur any law enforcement contacts.

In May and June 2005, defendant filed motions to reduce his two felony convictions to misdemeanors and to obtain release from penalties pursuant to section 17, subdivision (b), and section 1203.4. The court exercised its discretion and denied these motions.

On July 15, 2005, the court modified defendants probation in case No. INF034757 to summary probation. Defendant subsequently filed notices of appeal in both cases, to which this court assigned case Nos. E038520 and E038541. In an order dated July 27, 2005, this court consolidated the matters and designated case No. E038520 as the master file. On July 27, 2005, this court also took judicial notice of its record in defendants previous appeal, case No. E034153, described ante.

II. DISCUSSION

A. Standard of Review

A trial court has broad discretion in ruling on a motion to reduce charges pursuant to section 17, subdivision (b), and it is presumed to have acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Consequently, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] (Id. at p. 977.) Furthermore, [a] decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] (Id. at p. 978.) Therefore, we review the trial courts ruling on a motion under section 17, subdivision (b) for abuse of discretion.

When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of probation ( 1203.4), relief under that section is a matter of right. (See People v. Chandler (1988) 203 Cal.App.3d 782, 787.)

B. Motions to Reduce Felony Convictions to Misdemeanors

Section 17, subdivision (b), provides, in relevant part: When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [] . . . [] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. Factors that properly influence a courts decision to reduce charges include the nature and circumstances of the offense, defendants attitude and character traits, as evidenced by his behavior at trial, and the courts role in protecting society and punishing the defendant. (Alvarez, supra, 14 Cal.4th at p. 978; Cal. Rules of Court, rule 4.410(a)(1) & (2).)

Defendant contends that the trial court abused its discretion in denying his motion. (Hartman v. Superior Court (1982) 135 Cal.App.3d 205 (Hartman).) In Hartman, the magistrate denied a felony burglary defendants pretrial motion to reduce the charge to a misdemeanor. The defendant then sought a writ of mandate directing the lower court to vacate its order, arguing that prior to making his ruling the magistrate had asked the defendant whether or not he would plead guilty to the misdemeanor charge. The appellate court granted a writ of mandate, holding that the magistrates inquiry was error and [gave] rise to one or more of the following appearances of impropriety: (1) judicial discretion was being exercised to encourage and/or coerce a guilty plea; (2) petitioner was penalized by an adverse ruling upon his motion to reduce the charge for exercising his constitutional right to thereafter stand trial; and (3) the municipal courts future trial calendar was a factor in the exercise of judicial discretion. (Id. at pp. 208-209.)

In its ruling, the court in Hartman, supra, 135 Cal.App.3d 205, followed well-established law that a magistrate may not condition the exercise of judicial discretion to reduce the offense to a misdemeanor upon the entry of a plea of guilty by the defendant. (See, e.g., In re Lewallen (1979) 23 Cal.3d 274; Esteybar v. Municipal Court (1971) 5 Cal.3d 119; Jackson v. Superior Court (1980) 110 Cal.App.3d 174.) This principle has its basis in protection of a criminal defendants fundamental right to trial. Unlike the defendant in Hartman, however, defendant in the present case brought his motion for reduction of charges more than two years after sentencing, not in a pretrial hearing. His constitutional right to trial was not affected by the courts decision, and thus the protections provided by Hartman are not implicated.

Defendant further argues that the courts decision was irrational because defendant had complied with the terms and conditions of his probation and had not committed new crimes. Taken alone, such facts do not render a trial courts denial of a defendants sentence reduction irrational or arbitrary, nor do they entitle a defendant to a reduction of felony convictions to misdemeanors. As the Supreme Court stated in Alvarez, exercise of the authority granted under section 17, subdivision (b), must be an intensely fact-bound inquiry taking all relevant factors, including the defendants criminal past and public safety, into due consideration; and the record must so reflect. (Alvarez, supra, 14 Cal.4th at pp. 981-982.) Here, the record reflects that the court was familiar with defendant and the history of the case, and that based upon its review of the entire file, based upon the activities of Mr. Hurd, the court concluded that defendant represented a continuing serious threat to the community and that reduction to a misdemeanor was not warranted.

Nevertheless, defendant contends that the trial court refused to reduce his sentences as an oblique punishment because, pursuant to the plea agreement, it was legally forced to deny restitution. As the trial record clearly shows, however, the court denied defendants motions because based upon its review of the entire file . . . this Court still feels that Mr. Hurd constitutes a serious threat to this community. Defendants argument is a red herring, and we refuse to take the bait.

Accordingly, we find the trial courts exercise of discretion under section 17, subdivision (b), was reasonable, and we affirm its ruling.

C. Denial of Relief Under Section 1203.4

Section 1203.4 permits a person to withdraw his or her plea of guilty or nolo contendere, and submit a plea of not guilty [i]n any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section. ( 1203.4, subd. (a), italics added.)

Defendant argues that section 1203.4 requires the court to dismiss his convictions. Such argument suggests defendant fails to comprehend the plain language of the statute in question, and its role in achieving the broader goals of the states probation scheme. A grant of probation is in effect a bargain made by the People, through the Legislature and the courts, with the convicted individual, whereby the latter is in essence told that if he complies with the requirements of probation, he may become reinstated as a law-abiding member of society. [Citation.] As an additional inducement, the removal of the blemish of a criminal record is held out through the provisions of Penal Code section 1203.4. [Citation.] [Citation.] The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation. [Citation.] (People v. Covington (2000) 82 Cal.App.4th 1263, 1270, italics added.)

Defendant maintains that the trial court had no discretion to deny his request for relief under section 1203.4, as he completed the terms of his probation and met all other requirements of the statute. The record clearly demonstrates, however, that defendant did not complete the terms of his probation. Defendants entire period of probation ended May 30, 2006, three years from the date of sentencing; yet, at the time of the hearing on his motion, June 10, 2005, defendant had been on probation just over two years.

Furthermore, defendant had not been discharged from probation prior to the expiration of its term, as he asserts. In fact, at the time of the hearing on his motion, Defendant was on summary probation in case No. INF031149, and remained on formal probation in case No. INF034757. Courts have interpreted discharge of probation as termination of probation before the original term of probation has expired. (People v. Hawley (1991) 228 Cal.App.3d 247, 250-251, italics added.) Defendants probation was merely modifiedfrom formal to summary probationnot terminated altogether. We therefore conclude the trial court correctly denied defendants motion to dismiss under section 1203.4.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL RECORDS.

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

RICHLI

J.

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^[1] All further statutory references are to the Penal Code, unless otherwise specified.