Opinion
C081711
04-25-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDOLPH ANTHONY PARKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SF101668A & STK-CR-FE-2006-0010814)
As a condition of probation, defendant Randolph Anthony Parker was required to pay a total of $131,171 in victim restitution. He successfully petitioned to have probation terminated early with the unpaid balance of $129,477 converted to a civil judgment. Defendant also petitioned to dismiss his conviction pursuant to Penal Code section 1203.4, which the trial court denied on the basis of defendant's failure to pay the full amount of victim restitution.
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending that the trial court erred in denying his petition to dismiss. We agree and reverse the trial court's order.
BACKGROUND
We dispense with a recitation of the facts of defendant's crime as they are unnecessary to resolve this appeal.
On April 17, 2007, defendant pleaded no contest to arson of an inhabited structure (§ 451, subd. (b)) and was placed on five years' formal probation. Among the conditions of probation was that defendant pay $296 victim restitution to the City of Stockton, and $130,875 in restitution to the property's owner, for a total of $131,171. In February 2012, defendant, who still owed $129,477 in victim restitution, agreed to extend his term of probation to April 17, 2017.
On September 21, 2015, defendant petitioned the trial court to terminate his probation early, to convert the outstanding balance of the restitution order to a civil judgment, and to withdraw his plea pursuant to section 1203.4. At the initial hearing on the petition, the People stipulated to early termination and converting the restitution to a civil judgment, which the trial court ordered. At a subsequent hearing, the trial court denied defendant's petition for a section 1203.4 dismissal, citing the unpaid restitution as its reason.
DISCUSSION
Defendant contends the trial court was required to grant a section 1203.4 dismissal because his probation had been terminated early. We agree.
Section 1203.4, subdivision (a)(1) states in pertinent part: "In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or 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 this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant . . . ."
"There are three circumstances in which a defendant may apply for relief under . . . section 1203.4: if, '(a) he [or she] has fulfilled the conditions of his [or her] probation for the entire period; (b) he [or she] has been discharged before the termination of the period of probation; or, (c) in any case in which a court, in its discretion and the interests of justice, determines he [or she] should be granted relief.' [Citation.] [¶] Under either of the first two scenarios, the defendant is entitled as a matter of right to the dismissal of the charge. [Citations.]" (People v. Guillen (2013) 218 Cal.App.4th 975, 991.)
Our review of the trial court's order denying the petition involves an interpretation of section 1203.4, subdivision (a). As such, it presents an issue of law for our independent review. (People v. Seymour (2015) 239 Cal.App.4th 1418, 1428 (Seymour).)
The trial court's denial was based on People v. Covington (2000) 82 Cal.App.4th 1263 (Covington). The defendant in Covington was placed on probation and ordered to pay $99,473.48 in restitution to her former employer following her conviction on four counts of grand theft and one count of forgery. (Id. at p. 1265.) She had an unpaid balance of about $88,000 two months before her term of probation was to end. (Ibid.) The defendant then filed a section 1203.4 petition, which the trial court denied on the ground that she had not met her restitution condition. (Covington, supra, at p. 1265.) On appeal, the defendant argued that the trial court was required to grant her petition because she had complied with the terms of probation by making all of the court-ordered payments. (Id. at p. 1266.) The Court of Appeal affirmed, holding "for purposes of section 1203.4, a defendant has not fulfilled a restitution condition of probation unless he or she has made all court-ordered payments 'for the entire period of probation' and has paid his or her obligation in full." (Covington, supra, at p. 1271, original italics.)
Covington is inapposite because it addresses the first scenario in section 1203.4, where a defendant seeks relief after the term of probation has ended. Relief is mandatory in that case only if the defendant "has fulfilled the conditions of probation for the entire period of probation." (§ 1203.4, subd. (a)(1).) The case before us involves the second scenario, where probation is terminated early. The text of section 1203.4 does not condition mandatory relief in this scenario on completing all of the terms of probation, instead mandating relief whenever the defendant "has been discharged prior to the termination of the period of probation." (Ibid.) Also, completing all of the terms of probation is not necessary for early termination, as "[t]he court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held." (§ 1203.3, subd. (a).)
The cases interpreting section 1203.4 do not require completion of all the terms of probation for a defendant to be entitled to relief when probation is terminated early. In Seymour, the defendant was placed on three years' probation subject to various conditions including the payment of victim restitution to the California Victim Compensation and Government Claims Board. (Seymour, supra, 239 Cal.App.4th at p. 1421.) When the defendant's probation was terminated four months early, he still owed $5,726.97 in victim restitution. (Id. at pp. 1421-1422.) Defendant sought a section 1203.4 dismissal, which the trial court denied. (Seymour, supra, at p. 1422.) On appeal, the defendant acknowledged that the failure to pay restitution prevented him from obtaining relief under the first section 1203.4 scenario and did not claim he was entitled to the discretionary relief available under the third scenario, instead arguing he was entitled to relief under the second scenario because his probation was terminated early. (Seymour, supra, at p. 1430.) The Court of Appeal reversed holding "that defendant's failure to fully pay victim restitution did not authorize the trial court to deny the relief otherwise mandated by section 1203.4." (Seymour, supra, at p. 1422.)
The Seymour court found People v. Holman (2013) 214 Cal.App.4th 1438 (Holman), People v. Johnson (2012) 211 Cal.App.4th 252 (Johnson), and People v. Hawley (1991) 228 Cal.App.3d 247 (Hawley) instructive. (Seymour, supra, 239 Cal.App.4th at p. 1431.) In Hawley, the defendant petitioned for a section 1203.4 dismissal after his probation was terminated early, but was denied relief because his offense was too serious. (Hawley, supra, at p. 249.) The Court of Appeal reversed, finding the defendant was entitled to relief because probation was terminated early, so the seriousness of the offense was irrelevant. (Id. at p. 250, fn. 4; see Seymour, supra, at p. 1431.) In Holman, the trial court terminated the defendant's probation early, suspended all unpaid fines, including the restitution fine (§ 1202.4, subd. (b)), and entered a section 1203.4 dismissal. (Holman, supra, at pp. 1447-1448.) The People appealed the suspension of fines and fees. (Id. at p. 1448.) In affirming (id. at p. 1476), the Holman court stated: "Once the trial court had terminated [the] defendant's probation prior to the termination date, the court had no further discretion to deny a motion for relief under . . . section 1203.4. [Citation.]" (Holman, supra, at p. 1468.)
In Johnson, the defendant's probation was reinstated following two violations; following the third violation, the trial court imposed a 120-day jail sentence, to run concurrent with a felony term in two other cases, and terminated probation early. (Johnson, supra, 211 Cal.App.4th at pp. 257-258.) Citing his early discharge, the defendant petitioned for relief under the second section 1203.4 scenario, which the trial court denied. (Johnson, supra, at p. 258.) On review, the Court of Appeal focused on the term "discharge" in section 1203.4. (Johnson, supra, at p. 262.) It noted: "Because . . . section 1203.4 was intended as a reward for good conduct, it cannot be interpreted to authorize relief to defendants simply because probation has been terminated early; the defendant is required to show he has fulfilled the terms of probation or has been excused therefrom 'prior to the termination of probation.' [Citation.]" (Johnson, supra, at p. 262.) "A defendant may be 'discharged' from certain probationary conditions upon the 'termination' of the probationary period at its expiration, as well as by fulfillment of the conditions, or an order modifying the conditions to excuse the defendant's performance of conditions, prior to the expiration of the term. [Citation.] In this way, 'discharge from probation' may occur prior to the 'termination of the period of probation' where the defendant has fully performed all the conditions of probation prior to the expiration of the probationary term, or has been excused therefrom." (Id. at p. 263.) Since the "defendant never fulfilled the prescribed conditions of probation during the probationary term, and because his period of probation was not terminated for good conduct, but, rather, because a prison term had been imposed on him in other felony cases, he was not eligible for relief under . . . section 1203.4." (Johnson, supra, at p. 264.)
The Attorney General argued in Seymour that "Johnson is controlling and that under Johnson, defendant was not 'discharged prior to the termination of the period of probation' because he had neither paid the entire amount of victim restitution ordered or been excused from paying that amount, since the court ordered him to continue paying victim restitution after probation ended." (Seymour, supra, 239 Cal.App.4th at p. 1433.) The Seymour court distinguished Johnson because it did "not address the question of victim restitution at all," because probation was terminated early in Johnson because of the defendant's bad conduct, and because the defendant in Johnson made almost no effort to comply with programs ordered as a condition of probation, while the defendant in Seymour completed his. (Id. at pp. 1433-1434.)
The trial court in Seymour ordered the defendant to continue making restitution payments after probation was terminated. (Seymour, supra, 239 Cal.App.4th at p. 1434.) In addressing whether this disqualified defendant from mandatory section 1203.4 relief, the Seymour court turned to People v. Butler (1980) 105 Cal.App.3d 585 (Butler). (Seymour, supra, at p. 1434.) The defendant in Butler paid only $530 out of $2,500 in victim restitution before probation was terminated early. (Butler, supra, at p. 587.) The Court of Appeal reversed the denial of defendant's petition for section 1203.4 relief, finding relief was mandatory because probation was terminated early. (Butler, supra, at pp. 587, 589.) "Nothing in that opinion suggested that by granting the section 1203.4 petition, Butler was excused from paying the balance owed in victim restitution. Butler thus supports the conclusion that defendant is entitled to section 1203.4 relief under the second scenario because his probation had terminated early, regardless of whether he had fully paid victim restitution or had been excused from paying the balance of it. Indeed, relief is mandatory under the second scenario in section 1203.4 if the defendant 'has been discharged prior to the termination of the period of probation.' (§ 1203.4, subd. (a).) Nothing in section 1203.4 requires that a defendant also be excused from any unfulfilled conditions of probation to obtain relief under that scenario." (Seymour, supra, at p. 1434.)
The Attorney General relies primarily on Johnson in support of the trial court's ruling. We agree with the Court of Appeal's analysis in Seymour and find it applicable to this case. As in Seymour, and unlike the situation in Johnson, defendant's probation was not terminated early due to a probation violation and prison sentence in another case. Although we do not have a record of defendant's compliance with all the terms of probation, it appears that he complied with every term other than paying the very substantial restitution order. Defendant's petition for early termination invoked his "good conduct and reform" as grounds for early termination of section 1203.4 relief. The People stipulated to early termination, and cited only the failure to pay restitution when opposing section 1203.4 relief. As in Seymour, defendant's obligation to pay restitution survived the early termination of probation, as a civil judgment against him.
We find Seymour well-reasoned and indistinguishable from the present case. Since defendant's probation was terminated early, the trial court was obligated to grant section 1203.4 relief notwithstanding defendant's failure to pay victim restitution in full.
In light of our ruling, we need not consider defendant's contention, raised for the first time in his reply brief, that the denial must be reversed because the trial court did not consider whether defendant was entitled to discretionary relief under section 1203.4. Since we decline to consider this argument on the merits, we also decline to consider whether it was forfeited by defendant's failure to raise it in his opening brief.
DISPOSITION
The order denying defendant's petition for relief under section 1203.4 is reversed. The trial court is directed to vacate its previous order denying the petition and enter a new order granting the petition.
NICHOLSON, Acting P. J. We concur: BUTZ, J. DUARTE, J.