Opinion
E065573
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD JOSEPH PHILLIPS, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF103521) OPINION APPEAL from the Superior Court of San Bernardino County. Becky Dugan, Judge. Reversed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Joseph Phillips appeals from the superior court's order denying his motion under Penal Code section 1170.18 to reduce to a misdemeanor his felony conviction for possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a)). The court found defendant ineligible for relief because the possession charge had already been dismissed under section 1210.1 after defendant successfully completed a substance abuse program. We reverse and remand to the superior court to consider the merits of defendant's petition.
Section references are to the Penal Code except where otherwise indicated.
PROCEDURAL HISTORY
On May 14, 2002, defendant pled guilty to possessing methamphetamine. The trial court placed defendant on probation for three years and ordered him to complete a Proposition 36 substance abuse program. On January 29, 2004, the court set aside the conviction and dismissed the charge pursuant to section 1210.1 after defendant successfully completed a substance abuse program.
"[I]f the court finds that the defendant successfully completed drug treatment . . . the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment, complaint, or information against the defendant. In addition, except as provided in paragraphs (2) and (3), both the arrest and the conviction shall be deemed never to have occurred. The defendant may additionally petition the court for a dismissal of charges at any time after completion of the prescribed course of drug treatment. Except as provided in paragraph (2) or (3), the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted." (§1210.1, subd. (e)(1).) --------
On March 25, 2015, defendant filed a petition for resentencing under section 1170.18 to have the conviction reduced to a misdemeanor. On August 26, 2015, the People filed a response conceding defendant was entitled to have the petition granted. Also on that date, the court denied the petition on the basis that, "Dismissal was granted on 01/29/04."
This appeal followed.
DISCUSSION
Defendant argues, and the People concede, that the superior court should have reviewed defendant's petition on the merits, even though the conviction was dismissed pursuant to section 1210.1.
In People v. Tidwell (2016) 246 Cal.App.4th 212 (Tidwell) our colleagues in the Sixth Appellate District held that the dismissal of a felony conviction pursuant to section 1203.4 does not prevent the superior court from reducing a felony to a misdemeanor pursuant to section 1170.18, subdivision (f). (Tidwell, at p. 220.) In Tidwell, the court noted the limits on the practical effects of a dismissal pursuant to section 1203.4. (Tidwell, at p. 217.) For example, section 1203.4, subdivision (a)(1), states that "in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved . . . ." In addition, there is "no ambiguity in the language of section 1170.18 that allows a person 'who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense,' to apply to the trial court in order to have the felony conviction or convictions designated as misdemeanors. (§ 1170.18, subd. (f).)" (Tidwell, at p. 218.) The appellate court found "[n]othing in the language of section 1170.18" to indicate that a dismissal under section 1203.4 would prevent a court from reducing a felony conviction to a misdemeanor. This is especially so since dismissal of a conviction under section 1203.4 does not eliminate the possibility of "continuing or future consequences" of the conviction. (Tidwell, at p. 219.)
Similarly, as the parties agree, a dismissal pursuant to section 1210.1 does not expunge a defendant's record, nor does it negate the potential for future consequences stemming from the fact of the felony conviction. For example, section 1210.1 explicitly preserves the prohibition on carrying a concealed firearm (subdivision (e)(2)) and disclosure requirements for certain employment, certificate or benefit applications (subdivision (e)(3)).
Given the reasoning in Tidwell and the fact that, like section 1203.4, section 1210.1 does not wholly eliminate the consequences of the felony conviction, we conclude the superior court erred in denying the petition on the basis that his felony conviction was dismissed pursuant to section 1210.1.
DISPOSITION
The order denying the section 1170.18 is reversed. The matter is remanded to the superior court to consider the merits of the petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. McKINSTER
J.