P. v. Tatum

Filed 4/10/07 P. v. Tatum CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Shane Tatum filed a notice of appeal from the trial court's order denying his request to reduce his felony conviction to a misdemeanor. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On February 25, 1992, appellant pled nolo contendere to driving a vehicle with a blood alcohol level of 0.08 percent or more. (Veh. Code, 23153, subd. (b).) The trial court suspended the imposition of sentence and granted appellant five years of probation. The February 25 minute order states that appellant pled "nolo contendere, with consent of district attorney and approval of court to violation of section(s) 23153.B Vehicle Code, a felony." The March 3, 1992, sentencing report states that the Vehicle Code section 23153, subdivision (b) offense was "deemed a misdemeanor." The reporters' transcript and notes of the proceedings in which appellant entered his plea are not available. Appellant successfully completed his probation.

On September 8, 2005, appellant filed a petition and order for expungement (Pen. Code,  1203.4, 1203.4a), declaring under penalty of perjury that he was convicted of a felony violation of Vehicle Code section 23153, subdivision (b). The petition requested that the conviction be reduced to a misdemeanor under Penal Code section 17 and that the court dismiss the action under Penal Code section 1203.4. The judge who received the plea had retired and was unavailable to hear the matter.

On November 2, 2005, the trial court heard the petition. The prosecution objected to reducing the conviction because the victim had "evidently [been] unconscious for five days after the incident" and suffered extremely serious injuries. Appellant's counsel later stated, "Your Honor, that matter is submitted. We'd ask the court to grant the expungement." The court then dismissed the charge pursuant to Penal Code section 1203.4 but denied appellant's request to reduce the conviction to a misdemeanor.

On November 30, 2005, appellant filed a motion for reconsideration of the denial of his request to reduce the conviction to a misdemeanor. The motion was heard on January 19, 2006, by the same court that had denied the request.

During the January 19 hearing, appellant testified as follows: "15 years ago I was supposedly exonerated of anything that went wrong from that accident. . . . And the judge and . . . the company that . . . puts the bracelets on you and that stuff, they said, yeah, this will go to a misdemeanor if you do all this stuff right. And I did." After going to a shooting range, appellant learned that he could not use a gun because the "Department of Justice [said]" that he still had a felony.

The prosecution again objected to the reduction and explained that the victim's long-lasting injuries included a head fracture, internal bleeding, a large cut on his nose, and pain that continued through the time of the preliminary hearing. The prosecution added that the victim's truck had flipped over and collided with a police car on the side of the road, and appellant's blood alcohol level had been 0.22. Appellant explained that he worked after the accident, attempted to pay restitution to the victim, and that when the victim was in court, "[h]e never had a bandage."

The court stated it would "deny the motion for reconsideration without prejudice . . . absent a showing that either [appellant] was promised or reasonably led to believe by the prosecutor or the court that the matter would be reduced to a misdemeanor." The court expressed its willingness to give appellant an opportunity "to file a new motion for reconsideration if [he could] identify either A, a transcript which would contain that information, or B, . . . witnesses at a subsequent hearing who would be able to say that [appellant] was told that it [would] be reduced to a misdemeanor upon . . . successful completion of his grant of probation." The court was not inclined to grant the motion because of "the extent of the injuries [and the fairly horrific] nature of the collision."

Appellant filed a notice of appeal from the denial of the motion for reconsideration on March 8, 2006.

DISCUSSION

Respondent argues that this appeal is untimely. The January 19 ruling on the motion for reconsideration was an "order made after judgment, affecting the substantial rights of the party." (Pen. Code,  1237, subd. (b); People v. Gallardo (2000) 77 Cal.App.4th 971, 980-982; People v. Stein (1948) 31 Cal.2d 630, 633 [order denying motion to determine that convicted defendant is not habitual criminal].) California Rules of Court, rule 8.308(a) provides 60 days for filing a notice of appeal. Appellant filed his notice of appeal on March 8, within 60 days of January 19.

Appellant contends that because he was not sentenced to state prison, the court that accepted his plea determined that his crime was a misdemeanor. He cites People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, and similar cases. In Alvarez, during the probation and sentencing hearing, the trial court reduced the defendant's conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b), which 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: [] (1) After a judgment imposing a punishment other than imprisonment in the state prison. [] . . . [] (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." In contrast to the record in this case, the Alvarez record established with certainty that the court had reduced his conviction to a misdemeanor during the probation and sentencing hearing. That did not occur in this case, even according to appellant's version of the facts: "[T]he judge and . . . the company that . . . puts the bracelets on you and that stuff, they said, yeah, this will go to a misdemeanor if you do all this stuff right. And I did." (Italics added.)

Appellant argues that the March 3, 1992, sentencing report reflects that the court then deemed his conviction a misdemeanor for sentencing because line 6 of that report states that his offense was "deemed a misdemeanor." While appellant concedes that the minute order prepared for the February 25 plea date states that he pleaded to a felony, he argues the court deemed the felony to be a misdemeanor for sentencing, according to the March 3 sentencing report. Relying on People v. Camarillo (2000) 84 Cal.App.4th 1386, he further argues that the court thereafter lost authority under Penal Code section 17 to deem the offense a felony. In Camarillo, however, the court expressly granted the defendant's request to reduce his offense to a misdemeanor. (Id. at p. 1388.) Thus, there was no ambiguity in Camarillo about the reduction of the offense. In contrast, appellant contends that the trial court abused its discretion and denied him due process by refusing to interpret the ambiguities in the record in his favor.

Appellant also contends that the ambiguities in the record must be interpreted against the "state," because it destroyed the transcript. Other courts have considered arguments concerning the relief that must be granted where the record is not complete in a criminal matter. For example, in People v. Serrato (1965) 238 Cal.App.2d 112, no transcript was filed as a result of court officials' mistakes, the reporter's notes had been destroyed, the judge who tried the case was dead, and the prosecutor had left office. On that record, the Serrato court reversed the conviction on the basis of the court officials' failure to carry out their duties but also stressed that the lack of a record was not attributable to the defendant. (Id. at pp. 118-119.) However, in another case, where the defendant argued that anything less than a complete transcript deprived him of due process on appeal, the court held that a settled statement was a fair substitute for a complete transcript. (People v. Scott (1972) 23 Cal.App.3d 80, 84; see also People v. Malabag (1997) 51 Cal.App.4th 1419, 1425-1427.)

Here, respondent notes that the deputy public defender who represented appellant at the time of the plea bargain is still employed by that public defender's office. Instead of claiming that he tried to obtain a copy of his file from the public defender's office, appellant argues that it "is unreasonable that the public defender's office would have or maintain a copy of a 14-year-old transcript of the plea agreement." In denying appellant's motion without prejudice, the trial court indicated its willingness to consider a transcript of the plea bargain proceedings or receive testimony from witnesses to support appellant's claim that he was told by the court or the prosecution that the matter would be reduced to a misdemeanor. Under the circumstances, the court acted within its discretion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

James R. Brandlin, Judge

Superior Court County of Los Angeles

______________________________

Marilee Marshall & Associates, Inc., Marilee Marshall for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Sarah J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.

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