Opinion
G055118
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO ANTUNEZ ROMAN, Defendant and Appellant.
Law Offices of Michael J. Codner and Michael J. Codner for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 02CF3417) OPINION Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Law Offices of Michael J. Codner and Michael J. Codner for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Armando Antunez Roman moved under newly-enacted Penal Code section 1203.43 to withdraw the prior plea of guilty. He appeals from the trial court's order denying his motion. Finding no error, we affirm the order.
FACTS
In December 2002, the prosecution filed a complaint charging Roman with possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 1); possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 2); and possession of a smoking device (Health & Saf. Code, § 11364) (count 3). The court granted Roman deferred entry of judgment (DEJ) pursuant to Penal Code section 1000 as to all three counts. The court ordered Roman to provide proof of completion in a section 1000 drug diversion program by August 26, 2003.
All further references are to the Penal Code, unless otherwise indicated.
In May 2003, the court found Roman failed to satisfy his DEJ terms during the diversionary period. The court revoked Roman's DEJ, reinstated criminal proceedings, and issued a warrant for failure to comply with a court order. The same month, the court found Roman was eligible for Proposition 36 (§ 1210 et seq.) drug treatment probation. The court suspended imposition of sentence and placed Roman on section 1210.1 probation for three years. In August 2004, the court found Roman successfully completed the Proposition 36 drug treatment program and substantially complied with the probation conditions. The court reduced count 2 to a misdemeanor and set aside his convictions pursuant to section 1210.1, subdivision (d).
In April 2017, Roman filed a motion pursuant to section 1203.43 to withdraw his prior guilty plea and to dismiss the case "for legal defect." The court denied the motion, stating Roman "failed to complete [the section 1000] Program." Roman requested a certificate of probable cause, but the trial court denied his request.
Because Roman's appeal is not "in substance a challenge to the validity of the plea," but rather a challenge to the trial court's post-plea interpretation of a recently enacted statute, the Attorney General agrees with Roman a certificate of probable cause is not required here. (People v. Buttram (2003) 30 Cal.4th 773, 782.)
DISCUSSION
We review the denial of a motion to withdraw a guilty plea for abuse of discretion. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) When a trial court's decision rests on an error of law, that decision is an abuse of discretion. (People v. Superior Court (2008) 43 Cal.4th 737, 746.) Roman asserts the court's denial of his motion was an abuse of discretion because the record contained a clear legal defect in proceedings. Roman additionally argues that under the United States Constitution's Fourteenth Amendment, it is a denial of equal protection not to afford a defendant whose conviction is set aside pursuant to section 1210, as his was, the same benefit as a defendant whose conviction was set aside pursuant to section 1203.43. We will address the contentions separately. I. Legal Defect
Section 1203.43, subdivision (a)(1), addresses the representation made to defendants in section 1000.4 regarding the benefits of successfully completing the DEJ program. Section 1000.4 advised successful completion of a section 1000 DEJ program must not be used in any way that could result in the denial of any employment, benefit, license, or certificate. In the newly enacted section 1203.43, the Legislature declared the representation in section 1000.4 constituted misinformation about the actual consequences of making a plea in the case of some defendants, including all noncitizen defendants, because the disposition of the case may cause negative consequences, including adverse immigration consequences. Section 1203.43, subdivision (a)(2), states that based on this misinformation and the potential harm, the defendant's prior plea is invalid. Section 1203.43, subdivision (b), provides that in any case in which the court granted a defendant DEJ on or after January 1, 1997, defendant has performed satisfactorily during the period in which DEJ was granted, and for whom the court dismissed the criminal charge or charges pursuant to section 1000.3, the court shall, upon request of the defendant, permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty, and the court shall dismiss the complaint or information against the defendant.
Here, it is undisputed Roman did not perform satisfactorily during the period in which DEJ was granted and his criminal charges were not dismissed pursuant to section 1000.3. The court granted Roman's dismissal pursuant to section 1201.1. We find no error in the trial court's denial of the motion based on Roman's failure to complete the section 1000 program. II. Equal Protection
Roman argues section 1203.43 violates the equal protection clause by only allowing defendants whose charges were dismissed pursuant to section 1000.3 to withdraw their guilty pleas. He asserts a defendant who successfully completes a section 1000 program is similarly situated to a defendant who successfully completes a section 1210 drug program. We disagree.
The equal protection guarantees of the Fourteenth Amendment of the United States Constitution and the California Constitution are substantially equivalent and we analyze them in a similar fashion. (People v. Noyan (2014) 232 Cal.App.4th 657, 666.) The guarantee of equal protection prohibits the government from treating a group of people unequally without some justification. (People v. McKee (2010) 47 Cal.4th 1172, 1207 (McKee).) If the court determines the distinct classes are not similarly situated, it need go no further in the inquiry. (People v. Johnson (2004) 32 Cal.4th 260, 268.) Roman does not dispute we apply the rational basis analysis here.
"The first prerequisite to a meritorious claim under the equal protection clause is a showing the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.] Under the equal protection clause, we do not inquire whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the challenged law. [Citation.] (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 53 (Rajanayagam).) "In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws." (McKee, supra, 47 Cal.4th at p. 1202.) Equal protection does not "'"require things which are different in fact or opinion to be treated in law as though they were the same." [Citation.]'" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565 (Barrera).) A. Similarly Situated
Here, both sections 1000 and 1201 deal with nonviolent drug offenders, allow for dismissal of charges after completion of a drug program, and limit the subsequent use and consideration of the defendant's arrest and conviction. But the sections are not mirror images of one another. As noted by the court in People v. Sharp (2003) 112 Cal.App.4th 1336, 1341, "the two statutory schemes are not identical in scope and the drafters of Proposition 36 did not intend to pattern the initiative after section 1000."
Under section 1000, a court may offer DEJ to defendants charged with a first-time, minor drug offense who plead guilty to the charged offenses at the accusatory pleading stage. (People v. Ochoa (2009) 175 Cal.App.4th 859, 861.) Section 1000 only applies to "persons who are formally charged with first-time possession of drugs . . . and are found to be suitable for treatment and rehabilitation at the local level." (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61-62; § 1000, subd. (a).) Eligible offenses include a violation of Health and Safety Codes sections 11350, 11357, 11364, 11550, and other offenses specifically listed in the statute. A defendant is not eligible for section 1000 deferred entry following a trial and conviction. (People v. Reed (1975) 46 Cal.App.3d 625, 629.) If a defendant meets section 1000's eligibility requirements, the court must determine whether the defendant is a person who would benefit from education, treatment, rehabilitation, and deferred entry. (§§ 1000.1, subd. (b), 1000.2).
Section 1000.4, subdivision (a), provides that "the arrest upon which the defendant was diverted shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in section 851.92. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted pretrial diversion for the offense." An exception is in section 1000.4, subdivision (c) and allows "disclosure by the Department of Justice in response to any peace officer application request."
Section 1210.1 requires that any person convicted of a nonviolent drug possession offense be given probation and drug treatment. (§ 1210.1, subd. (a).) Section 1210 provides for an alternative sentencing scheme for those convicted of certain narcotics offenses. In effect, it acts as an exception to the punishment specified in an individual narcotics offense. (In re Varnell (2003) 30 Cal.4th 1132, 1136.) Unlike treatment pursuant to section 1000, placement of an eligible defendant in a section 1210 treatment program is not a discretionary sentencing choice made by the trial judge. All defendants convicted of nonviolent drug possession offenses are eligible for DEJ, probation, and drug treatment. No judicial determination the defendant would benefit from probation and treatment is permitted.
Under section 1210.1, subdivision (e)(1), once the court finds a defendant has successfully completed probation, the court is required to set aside the conviction and dismiss the charging document. Subject to certain exceptions, section 1210.1, subdivision (e)(1), provides that "both the arrest and the conviction shall be deemed never to have occurred" and "the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted." Exceptions are described in section 1210.1, subdivision (e)(3). The exceptions permit disclosure to any peace officer application request or any law enforcement inquiry and require a defendant to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer, for licensure by any state or local agency, for contracting with the California State Lottery, or for purposes of serving on a jury. Under section 1210.1, subdivision (d), "a conviction for a nonviolent drug possession offense is 'deemed not to have occurred' for some purposes but not others, and a defendant is released from some but not all disabilities resulting from the conviction." (People v. DeLong (2002) 101 Cal.App.4th 482, 490, 492 [Proposition 36 dismissal does not render defendant's appeal of underlying conviction moot since defendant "continues to suffer a besmirched name and the stigma of criminality"].) B. Distinctions Between Section 1000 and 1210
In support of his contention a defendant who receives a dismissal pursuant to section 1000 is similarly situated to a defendant who receives a dismissal pursuant to section 1210, Roman notes "both [section] 1000 and [section] 1210 provide the advisal that a plea under each section will be dismissed without further effect." He overlooks the differences in the two sections that support a finding the two groups of defendants are not similarly situated.
We note section 1210 provides definitions and section 1210.1 provides the governing substantive procedure.
As noted above, the provisions of sections 1000 and 1210 are substantially different. Initially, the set of crimes covered are different. Generally, "'"[p]ersons convicted of different crimes are not similarly situated for equal protection purposes." (Barrera, supra, 14 Cal.App.4th at p. 1565.) Section 1000 requires a defendant to be a first offender whereas section 1210.1 has no such limitation. "[T]he focus and ultimate purpose of the two statutory schemes are not analogous." (People v. Kirk (2006) 141 Cal.App.4th 715, 724, fn. omitted.) Section 1000 requires a judicial determination, whereas section 1210 does not. The defendant's duty to disclose arrest and conviction information varies between the two sections. Therefore, defendants who successfully complete a DEJ program pursuant to section 1000 and obtain dismissals are not similarly situated to defendants who complete post-conviction drug treatment programs pursuant to section 1210 and obtain dismissals. C. Rational Basis
Despite our finding of dissimilarity, we nevertheless discuss the reason why, even if similarly situated, California has a rational basis for treating these two groups differently. "In order to decide whether a statutory distinction is so devoid of even minimal rationality that it is unconstitutional as a matter of equal protection, we typically ask two questions. We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly situated in all material respects, we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose. [Citation.] A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citation.] (People v. Chatman (2018) 4 Cal.5th 277, 289.) "There is . . . no requirement that persons in different circumstances must be treated as if their situations were similar." (People v. McCain (1995) 36 Cal.App.4th 817, 819.)
"Under the rational relationship test, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citation.]" (Rajanayagam, supra, 211 Cal.App.4th at p. 53.) "'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in "'rational speculation'" as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record."' [Citation.] To mount a successful rational basis challenge, a party must '"negative every conceivable basis"' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its '"wisdom, fairness, or logic."' [Citations.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
In enacting section 1203.43, the Legislature's intent was to protect certain noncitizens from facing adverse immigration consequences based on "misinformation about the actual consequences of making a plea . . . ." (§ 1203.43, subd. (a)(1).) It is logical to conclude the Legislature saw a need to provide greater protection for first time offenders than repeat nonviolent drug offenders. The Legislature may also have intended to provide a benefit to section 1000 defendants because these defendants entered into pretrial diversion programs at the accusatory stage, foregoing their right to challenge the sufficiency of the evidence to support the charges. Lastly, the Legislature may have logically decided to provide a benefit to those defendants who had been deemed by the court to be persons who would benefit from education, treatment, rehabilitation, and deferred entry pursuant to sections 1000.1, subdivision (b), and 1000.2.
"'"[A]ll presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears."' [Citation.]" (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 780.) Accordingly, "the wisdom of [the Legislature's] choice is not subject to judicial review, so long as it is rational." (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1330.) The burden of demonstrating the invalidity of a legislative classification under the rational basis standard rests squarely upon the party who assails it (Warden v. State Bar (1999) 21 Cal.4th 628, 641.) Those attacking the rationality of a statute have the burden to negate "reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.]" (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313.)
Roman has failed to establish there is no rational basis for the Legislature to afford greater protection to defendants who earn dismissals after a section 1000 DEJ program than for those who earn dismissals after a section 1210 drug treatment program. We find the distinction in protection bears a rational relationship to a number of legitimate state purposes. According, we discern no equal protection violation.
DISPOSITION
The order is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.