Filed 9/7/18 P. v. Chadwick CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Kenneth Charles Chadwick, filed a petition to have his conviction expunged pursuant to Penal Code section 1203.4,[1] which the court denied. On appeal, defendant contends the court erred in denying the petition because the basis for the denial is not legally cognizable. The People concede the issue. We reverse.

I. PROCEDURAL HISTORY

On February 27, 2003, the People charged defendant by felony complaint with assault by means of force likely to cause great bodily injury. (§ 245, subd. (a)(1); count 1.) The People additionally alleged defendant personally used a deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) in defendant’s commission of the count 1 offense.

On March 26, 2003, defendant pled guilty to the sheet.[2] In return, the court placed defendant on three years’ felony probation.

On May 25, 2017, defendant filed a motion to expunge his conviction pursuant to section 1203.4.[3] Defendant alleged that his probationary period had expired after compliance for the entire period of probation, he was not then serving a sentence or probation for any new offense, and was not then charged with the commission of any new offense. Defendant requested that the court take judicial notice of the records in his case. On July 19, 2017, the People filed opposition, contending defendant was ineligible for expungement of his conviction because he had been convicted of the felony of prohibited possession of a firearm (Pen. Code, former § 12021, subd. (a)) on November 14, 2008, for which the court had sentenced him to 32 months in prison. The People additionally noted defendant had suffered a conviction for driving with a blood-alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b)) on March 26, 2012.

At the hearing on defendant’s motion on August 4, 2017, the court noted: “I’ve handled thousands of these [cases] over the course of my career, and the language in [section] 1203.4 is mandatory. If they complete the term of probation, then the Court is required to grant the relief requested. [¶] However, there’s later language in the statute that suggests that a court is not—it’s not mandatory if the defendant picks up a new offense, and [defendant has] picked up several, including a felony conviction, which occurred after the term of probation expired. [¶] So on the one hand, it could be argued that while he completed the term of probation, it’s the subject of this particular [section] 1203.4 motion; therefore, the mandatory language contained within that statute should apply . . . . [¶] Now, the Court has discretion, because even though his probation had

expired, he picked up a new offense resulting in a felony conviction, and, indeed, a state prison commitment.”

The court ultimately denied the opinion, finding: “[T]he later language in [section] 1203.4 gives the Court discretion to grant or deny the request. Had [defendant] picked up a misdemeanor, I would have granted the request, and he did pick up a misdemeanor as a [driving under the influence]. But because he picked up a felony that resulted in not only a conviction, but a commitment to state prison, I’m going to deny the request at this time.”

II. DISCUSSION

Defendant contends the court erred in denying the petition because the court’s basis for the denial is not legally cognizable. The People concede the issue. We agree.

“Where the propriety of the trial court’s order on a petition for relief under section 1203.4 turns on the interpretation of the relevant statutory provisions, it presents an issue of law, which we review de novo. [Citation.]” (People v. Seymour (2015) 239 Cal.App.4th 1418, 1428.) “Based on the plain language of section 1203.4, subdivision (a), the cases have identified three factual situations or ‘scenarios’ in which a defendant may apply for relief under section 1203.4. [Citations.] With exceptions not applicable here, they include when the defendant (1) ‘has fulfilled the conditions of probation for the entire period of probation,’ (2) ‘has been discharged prior to the termination of the period

of probation,’ or (3) ‘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’ section 1203.4. [Citations.] If the petitioner comes within either of the first two scenarios, ‘the court is required to grant the requested relief.’ [Citation.] In such cases, the defendant is entitled to relief ‘as a matter of right’ and dismissal is mandatory. [Citation.]” (Id. at pp. 1429-1430.)

“‘[A] defendant moving under . . . section 1203.4 is entitled as a matter of right to its benefits upon a showing that he “has fulfilled the conditions of probation for the entire period of probation.” It was apparently intended that when a defendant has satisfied the terms of probation, the trial court should have no discretion but to carry out its part of the bargain with the defendant. [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.”’ [Citations.]” (People v. Smith (2014) 227 Cal.App.4th 717, 724-725; accord, People v. Lewis (2006) 146 Cal.App.4th 294, 297.)

Here, defendant averred completion of his probationary period from his February 27, 2003, conviction. Defendant maintained he was not on probation or serving a sentence and was not charged with a crime in any other matter. Defendant requested that the court take judicial notice of the record in his case. Although the court did not expressly rule on the request for judicial notice, the court stated that defendant “completed the term of probation” and that the court would have granted the request had defendant only suffered a misdemeanor conviction. Thus, it is reasonably inferable the court had accessed and reviewed the record in defendant’s case to the extent of verifying that he had successfully completed his probationary term from his February 27, 2003, conviction and was not charged with, serving time, or serving probation on another offense. That defendant had sustained subsequent convictions, not during his probationary period for the conviction for which he sought expungement, was immaterial to the legal issue before the court. Thus, the court was required to grant the relief requested, having no discretion to deny it.

The People maintain the remedy should be to remand the matter because defendant failed to prove he was eligible for relief pursuant to section 1203.4. However, it is apparent, as discussed above, that the court had reviewed defendant’s record and determined his initial eligibility when it stated defendant had successfully completed his probationary period and that it would have granted defendant’s petition but for defendant’s subsequent felony conviction. Thus, the court implicitly granted defendant’s request for judicial notice of the record in his case. Moreover, the People did not check the boxes on their form opposition which would have reflected that defendant did not present “competent evidence for the court to grant relief”; was “currently serving a sentence, charged with an offense, and/or . . . on probation”; or in any other manner, ineligible for the relief requested. Thus, the People forfeited this contention. (People v. Lewis, supra, 146 Cal.App.4th at p. 297 [where the People did not deny that defendant fulfilled the conditions of probation for the entirety of his probation, defendant was entitled to the relief requested].)

III. DISPOSITON

The judgment is reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

CODRINGTON

J.

FIELDS

J.