Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC022151.
Jones, P.J.
Juan Manuel Arriola appeals contending the trial court erred when it denied his motion to dismiss under Penal Code section 1203.4, subdivision (a). We agree and reverse.
All further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record does not include any specific information about the underlying offense. We only know that in September 1989, appellant pleaded no contest to one felony count of unlawful sexual intercourse with a minor. (§ 261.5.) As part of the plea, the court told appellant that it would reduce the crime to a misdemeanor if appellant completed his probation successfully.
Appellant did complete his probation successfully. In September 2006, appellant filed a motion to reduce his crime to a misdemeanor, and a motion to dismiss under section 1203.4, subdivision (a).
Section 1203.4, subdivision (a) states, in 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 . . . plea of . . . nolo contendere and enter a plea of not guilty . . . and . . . the court shall thereupon dismiss the accusations or information against the defendant . . . .”
The court referred the matter to the probation department for a recommendation. The probation department did not oppose appellant’s motion to reduce the offense to a misdemeanor because that was part of appellant’s original plea. However, the department did oppose appellant’s motion to dismiss.
The court granted appellant’s motion to reduce, but denied his motion to dismiss stating that the underlying offense was “serious.”
II. DISCUSSION
Appellant contends the trial court erred when it denied his motion to dismiss. The People concede the error and we agree.
Section 1203.4 states that a defendant who has fulfilled the conditions of probation for the entire period of probation is entitled as a matter of right to have his plea changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed. (People v. Hawley (1991) 228 Cal.App.3d 247, 249-250.) “If the petitioner establishes . . . the necessary factual predicates, the trial court is required to grant the requested relief.” (Id. at p. 250, fn. omitted, original italics.)
Here, the People concede that appellant established the factual predicates for relief under section 1203.4. He successfully completed his probation, he had no new convictions, he was not on probation, and he had no pending cases. Under those circumstances, dismissal was required. (People v. Hawley, supra, 228 Cal.App.3d at p. 250.)
III. DISPOSITION
The order denying appellant’s motion to dismiss is reversed. The trial court is directed to enter a new order granting appellant’s motion.
We concur: Gemello, J., Needham, J.