Opinion
No. B161657.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. SARKIS AGASARKISIAN, Defendant and Appellant.
Paul S. Zimmerman, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
Sarkis Agasarkisian appeals from an order denying his Penal Code section 1203.4 petition to expunge his 1983 conviction of misdemeanor receiving stolen property ( § 496). He contends that the trial court erred in denying the petition because his conviction during probation of an offense committed prior to the grant of probation did not violate the terms of his probation which he therefore successfully completed. Respondent contends that appellant is barred by the doctrine of res judicata from relitigating the denial of his section 1203.4 petition, as he had filed a previous section 1203.4 petition which was denied and from which he did not appeal.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 1983, appellant pled no contest to a misdemeanor charge of receiving stolen property (§ 496). On June 15, 1983, the trial court suspended a one-year county jail sentence and placed appellant on three years probation on the conditions that (1) he pay a $ 2,000 fine, (2) "seek and maintain training, schooling or employment as approved by probation officer," (3) "maintain residence as approved by probation officer," and (4) "obey all laws, orders, rules and regulations of the probation department and of the court."
While on probation, appellant was convicted by plea of voluntary manslaughter and sentenced to two years in state prison in connection with a shooting that occurred before his conviction of receiving stolen property. He was paroled for this offense on December 14, 1984 and discharged from parole on January 13, 1986.
On February 17, 1994, appellant filed a petition pursuant to section 1203.4 requesting permission to withdraw his guilty plea to the receiving stolen property charge, enter a not guilty plea and requesting the trial court to dismiss that action. The petition asserted that appellant had fulfilled the conditions of his probation for the entire period and that the interests of justice required the requested relief. The trial court denied the petition finding "that while the defendant was on probation he committed a new offense and was sentenced to state prison." Appellant did not appeal this ruling.
On July 30, 2002, appellant filed a second section 1203.4 petition with regard to his receiving stolen property conviction, seeking the same relief as in his earlier petition. Appellant again asserted that he had fulfilled all of the conditions of his probation for the entire period.
The trial court denied the petition, the minute order stating: "Court was never notified of previous conviction of manslaughter subsequent to defendant being placed on probation." This appeal is from that order.
DISCUSSION
Appellant contends that the trial court erred in denying his section 1203.4 petition because his conviction while on probation for receiving stolen property, of an offense committed prior to that probation, did not violate the conditions of his probation. He argues that he therefore fulfilled those conditions during the entire term of probation and that section 1203.4 mandates the requested relief. Respondent agrees that "it does not appear that appellant would have violated any of the conditions of his probation by his subsequent conviction for an offense that was committed prior to probation being granted." We also agree.
Section 1203.4 states in pertinent part: "In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, . . . 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 . . . and . . . the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . ." (Italics added.) The language of section 1203.4 is mandatory, entitling a defendant to the benefits of that section if the defendant has satisfied his probation conditions for the entire term of probation. Case authority has so concluded. (People v. Covington (2000) 82 Cal.App.4th 1263, 1266; People v. Chandler (1988) 203 Cal. App. 3d 782, 788, 250 Cal. Rptr. 730; People v. Johnson (1955) 134 Cal. App. 2d 140, 144, 285 P.2d 74.)
Appellants conviction during his probation of voluntary manslaughter committed before probation did not violate the conditions of his probation. The conviction was not a violation of any "laws, orders, rules or regulations." Only commission of the offense during probation would violate appellants probation, and the offense of which he was convicted occurred before his probation began.
In People v. Johnson, the Court of Appeal concluded that it was improper for the trial court to consider a criminal episode involving the defendant that occurred seven months after the conclusion of his probationary period in connection with a section 1203.4 petition. The Court of Appeal stated: "The law does not require positive proof of total and permanent reformation or rehabilitation as a condition to surrender of the right to impose judgment and sentence, for there could be no such proof." (People v. Johnson, supra, 134 Cal. App. 2d at p. 143.) Similarly here, nothing in section 1203.4 indicates that a defendants conduct before the probation period can be considered in determining entitlement to the benefits of that section. Conviction of an offense during probation committed prior to the probationary period did not violate the terms of appellants probation.
This conclusion does not by itself, however, resolve the matter before us. In 1994, appellant filed a section 1203.4 petition with respect to the same offense that is the subject of the 1203.4 petition appealed from here. That petition was denied because appellant "committed a new offense and was sentenced to state prison." Appellant did not appeal the trial courts ruling. Respondent contends that under the doctrine of res judicata, appellant is precluded from relitigating the denial of the current 1203.4 petition. We agree.
Res judicata or claim preclusion bars relitigation of the same cause of action in order to promote judicial economy by limiting multiple litigation. (Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 772, fn. 6.) "It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. [Citation.] The principle is as applicable to the decisions of criminal courts as to those of civil jurisdiction." (Frank v. Mangum (1915) 237 U.S. 309, 333-334, 59 L. Ed. 969, 35 S. Ct. 582.) The purpose of the doctrine is to prevent a person who has had one fair trial on an issue from again drawing it into controversy. (People v. Gephart (1979) 93 Cal. App. 3d 989, 997, 156 Cal. Rptr. 489.) Its purpose is to "promote judicial economy by minimizing repetitive litigation, . . . preventing inconsistent judgments which undermine the integrity of the judicial system, and to provide repose by preventing a person from being harassed by vexatious litigation. [Citation.]" (Ibid.) The requirement that there be a final determination on the merits for res judicata may be shown by a judgment, motion or order that determine a substantial matter of right on issues of law or fact. (People v. Howie (1995) 41 Cal.App.4th 729, 736.)
Appellant brought two virtually identical section 1203.4 petitions, the first in 1994 and the second in 2002. The first was denied because "while the defendant was on probation he committed a new offense and was sentenced to state prison." Appellant did not appeal this decision but instead waited eight more years before bringing a virtually identical petition, with no new facts or law asserted that might justify reconsideration of the courts earlier ruling. This time the petition was denied because the court was not "notified of previous conviction of manslaughter subsequent to defendant being placed on probation." Such multiple petitions, on the same claim, offend all of the salutary purposes that res judicata is aimed at accomplishing. It caused needless repetitious litigation, created the potential for inconsistent decisions and was vexatious. Application of res judicata is therefore warranted.
Appellant contends that respondent waived its claim of res judicata by failing to raise it in the trial court. We disagree. The record below reflects that the ruling on the section 1203.4 petition was handled as a nonappearance matter, and although a district attorney was present, the trial court ruled from the bench without requesting the district attorneys input. The record does not reflect whether the district attorney was even aware of the prior petition. These facts do not support a finding of waiver.
Even if we concluded respondent waived the claim of res judicata, given the equities in this matter as discussed below, we would nonetheless reach the merits of respondents claim as we have discretion to consider issues a party has waived, particularly when the parties have already briefed them. (In re C. T. (2002) 100 Cal.App.4th 101, 110, fn. 7; see also Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1341, fn. 6; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6, 948 P.2d 429 ["an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party"].)
Appellant contends that "application of res judicata in the instant matter to deny Appellant the restoration of his rights and subject him to unrelieved punishment where he has undisputedly fulfilled the conditions of probation, solely on the grounds that a previous petition was also denied erroneously but not appealed, would be unjust to him and would undermine Section 1203.4s intent to enact a desirable, beneficial social policy." Appellant misassesses the equities, which weigh heavily against him.
Rather than being entitled to expunge his conviction of receiving stolen property, it is unclear why appellants probation for that offense was not revoked when he was convicted of voluntary manslaughter. The record fails to indicate whether the trial court was ever advised after appellant was placed on probation for receiving stolen property that he was convicted of voluntary manslaughter and sentenced to two years in prison. Appellant waited nearly 10 years before bringing his first section 1203.4 petition in 1994 and an additional eight years before bringing the second. Appellants lengthy delay has contributed to the unavailability of records that might shed light on this matter. That being so, the equitable doctrine of collateral estoppel (see People v. Burbine (2003) 106 Cal.App.4th 1250, 1259) should be applied to prevent appellant from receiving an apparent procedural windfall.
DISPOSITION
The order appealed from is affirmed.
NOTT, J., DOI TODD, J., we concur. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.