Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF108493, Robert E. Law, Judge. (Retired Judge of the Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Sandra Jean Hughes appeals from the trial court’s order denying her motion to reduce her felony to a misdemeanor.
OPINION
RAMIREZ P. J.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled guilty on April 4, 2003, to one count of possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) She was granted probation for a period of three years subject to various terms and conditions, including participation in a drug treatment program pursuant to Proposition 36. (Pen. Code, § 1210.1.)
All further statutory references are to the Penal Code unless otherwise noted.
On July 13, 2007, after completion of probation, defendant filed a motion to set aside her guilty plea and to dismiss the felony complaint. (§ 1203.4.) At the same time, she also filed a form petition and order for expungement, which included a request for a reduction of the conviction to a misdemeanor. (§ 17.) The motion and the accompanying petition were supported by a declaration and a certificate of completion of a substance abuse treatment and recovery program.
On July 31, 2007, the court held a brief hearing and granted the motion to dismiss under section 1203.4. Although the record clearly shows defendant also filed the form petition that included a request for a reduction of the conviction to a misdemeanor, the court was unable to locate it during the hearing, and defendant’s counsel did not have a copy. Counsel asked if the court would “entertain an oral [section] 17[, subdivision (b),] motion,” but the court responded, “You’re going to need to file a motion on that.” The court did not consider the merits of the request for a reduction, and the minutes for the hearing on July 31, 2007, incorrectly state that an oral motion for reduction was denied.
On July 28, 2008, defendant filed a motion for reduction to misdemeanor. (§ 17, subd. (b)(3).) On July 31, 2008, the court held a hearing on the motion. Based on the record, but without the benefit of a transcript of the prior hearing, the court incorrectly assumed that the prior motion for reduction under section 17, subdivision (b), was denied. It denied the new motion only because the prior motion was denied, stating: “That kills your application. One bite of the apple. [¶]... [¶]... If it was improperly denied, you had, arguably, the right to appeal.”
DISCUSSION
Defendant and respondent agree that a remand is appropriate because the record demonstrates the trial court exercised its discretion in an arbitrary manner by declining to consider defendant’s motion on the merits. We also agree.
The expungement of a conviction under section 1203.4 is “a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony.” (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 140 (Meyer).) “[A] conviction which has been expunged still exists for limited purposes,” and a defendant “should not be barred from pursuing a more suitable remedy.” (Ibid.) Section 17 makes it possible for a court to reduce a felony to a misdemeanor when a probationary period has been satisfactorily completed. (Meyer, at pp. 139-140.) This authority is “intended to enable the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated.” (Ibid.) By its terms, section 17 does not limit the time in which a defendant may seek to have a felony reduced to a misdemeanor. (Meyer, at pp. 139-140.) “[T]here is even greater reason for rewarding a convicted defendant who continues to demonstrate his rehabilitation long after his probation has expired, when he is no longer under the constant supervision of a probation officer.” (Ibid.)
The exercise of authority under section 17, subdivision (b), “must be an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.) Factors to be considered include those “that direct similar sentencing decisions,” such as “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (Id. at p. 978.) Here, defendant was entitled to have her request and/or motion for reduction to misdemeanor considered on the merits.
DISPOSITION
The order denying defendant’s motion for reduction to misdemeanor is reversed; the matter is remanded for reconsideration on the merits of defendant’s motion. In all other respects, the judgment is affirmed.
We concur: RICHLI J. MILLER J.