P. v. Patel
Filed 6/4/13 P. v. Patel CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PRANAV NATUARLAL PATEL,
Defendant and Appellant.
B242524
(Los Angeles
County
Super. Ct.
No. PA014198)
APPEAL from a judgment of the Superior Court of
County, Dalila Corral Lyons, Judge. Reversed and remanded.
Anthony D. Zinnanti for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
James William Bilderback II and Sonya Roth, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
To aid
his quest to become a United States
citizen, defendant and appellant Pranav Natuarlal Patel filed, under Penal
Code section 1203.4,
name="_ftnref1" title="">[1]
a motion to expunge his felony conviction for
declaration and exhibits showing why the interests of justice, in the trial
court’s discretion, justified relief.
Because the record does not demonstrate that the trial court considered
the merits of Patel’s petition and exercised its discretion, we remand this
matter.
FACTUAL AND PROCEDURAL BACKGROUND
In October
1993, a felony complaint was filed against Patel. It alleged two counts: count 1 for assault with the intent to commit
rape (§ 220), and count 2 for sexual battery by restraint (§ 243.4, subd.
(a)). Patel, on March 29, 1994, pleaded nolo contendre to
count 2. On May 18, 1994, imposition of sentence was
suspended and he was placed on four years’ formal probation on the conditions,
among others, he serve 365 days in jail and register with the local police
agency as a sex offender.
name="_ftnref2" title="">[2] His probation case was terminated on May 17,
1998.
Years later, on December 16, 2008,
Patel filed a petition under section 1203.4 to have his record expunged.
Patel “did not register pursuant to Penal Code section 290 and therefore [he]
did not successfully complete probation.â€
In August 2011, Patel filed a
second motion under section 1203.4 on the ground he fulfilled the conditions of
probation. There was no appearance made
at the hearing on the petition, and it was denied on November 14, 2011. The minute order from the hearing
states: “Defendant’s petition for
dismissal pursuant to section 1203.4 of the Penal Code is denied.â€
On March 23, 2012, Patel filed a
third motion under section 1203.4.
name="_ftnref4" title="">[4] In support of his motion, Patel submitted his
declaration and exhibits showing that since his conviction he has been an
upstanding and responsible member of the community, a respected businessman, a
husband, and a father of twin boys.
Patel explained that when he was placed on felony probation in 1994, his
probation officer told him to register as a sex offender with the Los Angeles
Police Department (LAPD). Following
written instructions, he tried to register at the Parker Center but the officer
refused to register him because the LAPD had no proof of his conviction. The officer did, however, give him a form
reflecting that he could not be registered because there was no proof of his
conviction. When Patel told his
probation officer what happened, the probation officer said she would call or
email him with further instructions if necessary. He never received further instruction.
The People opposed Patel’s petition
on the ground it was merely a request for reconsideration of his two prior
motions.
On June 6, 2012, the trial court
denied Patel’s motion. Patel’s counsel
appeared. There were no reported
proceedings, but the minute order states:
“Defendant’s 3rd motion to set aside the conviction per [section] 1203.4
[of the Penal Code] is heard and denied.â€
DISCUSSION
Section 1203.4
provides that a defendant convicted of a crime and granted probation may have
his or her record expunged under three circumstances: (1) the defendant fulfilled the terms of
probation for the entire period; (2) the defendant has been discharged
before the termination of the period of probation; or (3) in any case in
which a court, in its discretion and the interests
of justice, determines relief should be granted.
v. McLernon (2009) 174 Cal.App.4th 569, 571, 574-575 (McLernon); People v. Holman (2013)
214 Cal.App.4th 1438; People v. Butler (1980)
105 Cal.App.3d 585, 587.) Under the
first two scenarios, a defendant is entitled to relief as a matter of right if
the defendant has fulfilled the terms of probation or probation has been
terminated. (Butler, at p. 589.) The third scenario, however, is subject to
the trial court’s discretion. (
The
defendant in McLernon, like Patel,
filed three petitions. McLernon’s first
two petitions were denied based on his failure to fulfill the conditions of
probation. (McLernon, 174 Cal.App.4th at p. 575.) But his third petition argued that relief
should be granted in the interests of justice.
(Id. at p. 574.) Because the trial court did not consider the
merits of the motion and instead “ ‘rejected’ †it as “ ‘having been submitted
and denied’ †twice before, McLernon remanded
the matter to the trial court to consider the petition on the merits. (Ibid.)
Under
precluded by the denial of his first two.
As in McLernon, Patel’s first
petition was denied solely on the ground he failed to fulfill the conditions of
probation. Patel’s second petition
sought relief solely on the ground he had fulfilled the conditions of
probation. The denial of the second
petition therefore could only have been based on a finding that he failed to
fulfill those conditions. Patel’s third
petition, however, differed from his first two in that it attached Patel’s
declaration and exhibits showing that since his 1994 conviction he has been a
law abiding citizen. It is therefore
clear that Patel sought discretionary relief under the third scenario in
section 1203.4, a request not made in the prior two petitions.
Whether the
trial court considered the merits of Patel’s petition is unclear. There were no reported proceedings, and the
minute order from the hearing merely states that Patel’s “3rd motion to set
aside the conviction . . . is . . . denied.â€
That the minute order refers to the motion as Patel’s “3rd†and does not
address the merits shows that the court summarily denied the motion without
considering whether the interests of
justice justify relief. The court
did not exercise its discretion as required under the third scenario in section
1203.4.
Remand is therefore warranted. We express no opinion regarding whether Patel
is entitled to relief. The matter is
remanded to the trial court to determine whether, in light of the evidence
presented, the interests of justice warrant relief.
DISPOSITION
The judgment is reversed and remanded for proceedings
consistent with this opinion.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
All
further undesignated statutory references are to the Penal Code.
minute order states that Patel was to register as a “narcotic offender.†There is no dispute on appeal, however, that
the correct order was to register as a sex offender. Patel also admits that after his conviction
he received “Instructions to Adult Probationer†instructing him to register as
a sex offender.
