Opinion
H043458 H043459
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. EDGAR SANTIAGO PALUSTRA, Defendant and Appellant.
ORDER MODIFYING OPINION, NO CHANGE IN JUDGMENT
BY THE COURT:
It is ordered that the opinion filed herein on February 16, 2017, be modified as follows:
On page 1, continuing onto page 2, in the second full paragraph, replace the three instances of "1203.4" with "1210.1" so that the second full paragraph now reads:
"On appeal, Palustra argues the trial court erred in finding the felonies ineligible for designation as misdemeanors because they had previously been dismissed pursuant to Penal Code section 1210.1. Palustra also contends the trial court's rulings violated his equal protection rights by subjecting individuals who previously sought relief under section 1210.1 to disparate treatment. The People agree that a dismissal pursuant to section 1210.1 does not preclude relief under Proposition 47 and concede the trial court erred in denying Palustra's petitions."
Appellant's petition for rehearing is denied. There is no change in the judgment. Dated: __________
/s/_________
Premo, J. /s/_________
Rushing, P.J. /s/_________
Elia, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC633787) (Santa Clara County Super. Ct. No. CC476346)
Defendant Edgar Santiago Palustra appeals from two orders after judgment denying his petitions to reduce two felonies to misdemeanors pursuant to Proposition 47.
On appeal, Palustra argues the trial court erred in finding the felonies ineligible for designation as misdemeanors because they had previously been dismissed pursuant to Penal Code section 1203.4. Palustra also contends the trial court's rulings violated his equal protection rights by subjecting individuals who previously sought relief under section 1203.4 to disparate treatment. The People agree that a dismissal pursuant to section 1203.4 does not preclude relief under Proposition 47 and concede the trial court erred in denying Palustra's petitions.
Unspecified statutory references are to the Penal Code.
We agree the concession is appropriate for the reasons expressed herein. We will reverse the denial of Palustra's applications for designation of his felony convictions as misdemeanors and remand to the trial court for further proceedings.
Based on our conclusion, we need not reach Palustra's equal protection claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Palustra was charged in case No. CC476346 (case No. '46) with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, count 2). In 2006, Palustra was charged in case No. CC633787 (case No. '87) with felony possession of methamphetamine (id., § 11377, subd. (a), count 1) and misdemeanor being under the influence of methamphetamine (id., § 11550, subd. (a), count 2).
On February 5, 2007, Palustra entered into a plea agreement resolving the charges against him in both cases. In case No. '46, Palustra pleaded guilty to count 1 and, in case No. '87, he pleaded guilty to both count 1 and count 2. The trial court suspended imposition of sentence and granted Proposition 36 probation in both cases.
The record does not reflect how count 2 in case No. '46 was resolved, and the parties do not address it in their briefing. Presumably, it was dismissed along with the other charges upon Palustra successfully completing Proposition 36 probation. --------
Palustra successfully completed his Proposition 36 probation and, on July 26, 2007, the trial court dismissed the charges in case Nos. '46 and '87 pursuant to section 1210.1.
On January 27, 2016, Palustra filed two petitions seeking redesignation of his felony convictions in case Nos. '46 and '87 to misdemeanors pursuant to Proposition 47. By minute orders dated March 21, 2016, the trial court denied both petitions. At the hearing on the petitions, the trial court stated that the petitions were denied "because there is no conviction at this time, the matter[s] having been dismissed pursuant to completion of a Prop. 36 treatment program."
Palustra timely appealed from both orders.
II. DISCUSSION
In People v. Tidwell (2016) 246 Cal.App.4th 212 (Tidwell), this court held that felony counts dismissed under section 1203.4 were eligible for reclassification as misdemeanors under Proposition 47. (Tidwell, supra, at p. 219.) As we noted, section 1203.4 " 'does not, strictly speaking, "expunge" the conviction, nor render the conviction "a legal nullity." ' " (Tidwell, supra, at p. 217.) After examining section 1203.4 and section 1170.18, keeping in mind the intent of the legislative body in adopting Proposition 47, we determined that "[t]o foreclose defendant's eligibility based on the section 1203.4 dismissal would contravene [the legislative body's] intent, where defendant has met the criteria under section 1170.18 according to the terms of the statute." (Tidwell, supra, at p. 219.)
Here, the charges against Palustra were dismissed under section 1210.1, not section 1203.4, but as the People concede, the statutes are sufficiently alike for purposes of Proposition 47 relief. Like a section 1203.4 dismissal, a section 1210.1 dismissal is not "a dismissal for all purposes." (People v. Zeigler (2012) 211 Cal.App.4th 647, 657.) Because the "statutory dismissal that defendant obtained did not expunge his record or cancel the potential for continuing or future consequences of those convictions," the trial court erred in rejecting Palustra's petitions for redesignation under section 1170.18. (Tidwell, supra, 246, Cal.App.4th at p. 219.)
III. DISPOSITION
The orders denying the petitions to redesignate defendant's felony convictions as misdemeanors are reversed. The matters are remanded for further proceedings consistent with Penal Code section 1170.18.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Elia, J.