Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. KA050534, Laura F. Priver, Judge.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Defendant Luis Alarcon entered a no contest plea in 2001 to transportation of methamphetamine and possession of methamphetamine for the purpose of sale. The trial court imposed and suspended a term of four years in state prison and placed defendant on formal probation for five years, with one year in county jail. In 2006, defendant petitioned under Penal Code section 1203.4 to have his conviction expunged, alleging among other things that he had successfully completed the 2001 probation and had not been involved in any other offenses. On October 25, 2006, after a discussion regarding the difference between an imposed but suspended term followed by probation as opposed to a straight grant of probation, the trial court ruled:
Penal Code section 1203.4, subdivision (a), provides in relevant 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 and . . . he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. . . .”
“The court is denying the motion. And I’m not denying it because I don’t think that the relief is appropriate, I’m denying it because, the court’s reading of the four corners of the statute, which refers directly to situations where it was not granted as a straight probation, he was actually given a state prison sentence, execution of which was suspended, and then put on probation, the court is distinguishing those two sentences. . . . But if I’m wrong, I would like to know that, and invite you to take the appropriate appellate action.”
Defendant appeals, contending that his petition was improperly denied. The Attorney General aptly concedes that there is merit in defendant’s contention.
Notwithstanding the suspended state prison sentence, relief under Penal Code section 1203.4 is mandatory where, as here, a defendant completes probation without incident. (People v. Butler (1980) 105 Cal.App.3d 585, 587–589; People v. Johnson (1955) 134 Cal.App.2d 140, 144; cf. People v. Banks (1959) 53 Cal.2d 370, 375.) Accordingly, the trial court erred in denying defendant’s petition on the ground stated for its ruling.
The order under review is reversed and the matter is remanded for a new hearing on defendant’s petition under Penal Code section 1203.4.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.