Opinion
G057344
06-19-2020
THE PEOPLE, Plaintiff and Appellant, v. DAVID ALLEN BENSON, Defendant and Respondent.
Todd Spitzer, District Attorney and Yvette Patko, Deputy District Attorney, for Plaintiff and Appellant. Law Offices of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08CF1724) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Robert Fitzgerald, Judge. (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions. Todd Spitzer, District Attorney and Yvette Patko, Deputy District Attorney, for Plaintiff and Appellant. Law Offices of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant and Respondent.
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The People appeal from the order reducing defendant David Allen Benson's 2010 felony convictions for driving under the influence (Veh. Code, § 23152, subds. (a) & (b)) to misdemeanors under Penal Code section 17, subdivision (b) and then dismissing them under section 1203.4, subdivision (a)(1). We conclude defendant was not eligible for relief under either statute because a state prison sentence was imposed at the time of his plea. We reverse the court's order.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, defendant pleaded guilty to felony counts of driving under the influence of alcohol and with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subds. (a) & (b); counts 1 & 2) and admitted he had suffered three or more prior convictions for driving under the influence within 10 years (Veh. Code, § 23550). The court imposed a two-year state prison sentence on each count, with the sentence on count 2 stayed under section 654. Defendant was awarded 1,120 days of presentence custody credits, which included time spent in a sober living facility. Because defendant's presentence custody credits exceeded the length of his sentence, the court deemed defendant to have "served his state prison commitment of two years at the county level" and ordered defendant's release from custody. Defendant was ordered to report to parole within 72 hours of his release and advised that if he failed to do so or violated his parole, he would "return" to prison for a maximum of 12 months per parole violation. The court also imposed a $200 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a parole revocation fine in the same amount (§ 1202.45). These fees and others imposed were ordered payable through the "Department of Corrections."
At the time defendant entered his guilty plea in the instant matter, he also pleaded guilty in Orange County Superior Court case No. 07HF2022 to felony counts of driving under the influence of alcohol and with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subds. (a) & (b)), and the court imposed concurrent two-year state prison sentences on those convictions as well.
In 2017, defendant filed a form petition for dismissal in the superior court, indicating that his convictions for driving under the influence were eligible for reduction to misdemeanors under section 17, subdivision (b) and dismissal under section 1203.4, because he had "fulfilled the conditions of probation for the entire period thereof." A hearing on the petition was held before Commissioner Edward Hall, who indicated defendant was not eligible for relief under section 1203.4 because he had been sentenced to state prison. But at the request of the defense, the court ordered the transcript of the 2010 plea and sentencing proceedings and continued the matter. The matter was subsequently taken off-calendar by the defense.
In 2018, defendant calendared a motion seeking the same relief before Judge Fitzgerald, who took his plea and imposed sentence in 2010. In the motion, defendant acknowledged that the court "pronounced" a prison sentence for his convictions but asserted "[t]he prison sentences were never actually 'imposed'" (emphasis omitted) because the court "effectively stayed each sentence permanently, giving defendant day-for-day credit for the time he spent in a sober living facility." Defendant contended the court, therefore, was authorized to reduce his felony convictions to misdemeanors under section 17, subdivision (b)(1) and then dismiss them under section 1203.4, subdivision (a)(1), in the interests of justice.
A hearing was held on defendant's motion. Opposing defendant's motion, the People argued defendant was not eligible to have his convictions reduced to misdemeanors under section 17, subdivision (b) because he had been sentenced to state prison for these offenses. The court granted defendant's motion, indicating the record was "so vague" it could not "tell what [it] did by looking at the record." Defense counsel was ordered to prepare a formal written order for the court to sign. In the written order, the court declared defendant's convictions for driving under the influence to be misdemeanors pursuant to section 17, subdivision (b)(1), and the court set aside defendant's guilty pleas and dismissed the charges in the interests of justice under section 1203.4, subdivision (a)(1).
While the order signed by the court references section 1203.4, subdivision (a)(1) as the ground for dismissing the charges, the court's minute order states the charges were dismissed pursuant to section 1203.42. As the issue of whether defendant was entitled to relief under section 1203.42 was not raised below and defendant's briefs on appeal have not argued he was entitled to relief under section 1203.42, we do not address this statute in our opinion. At oral argument defendant's counsel raised section 1203.42 for the first time. Since the People have not had an adequate opportunity to respond to that argument, we do not address section 1203.42 in this opinion. (See § 1203.42, subd. (d)(1) ["Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days' notice of the petition for relief"].) However, this opinion is without prejudice to plaintiff seeking relief under section 1203.42 in the trial court.
The People filed a timely notice of appeal from the court's order.
Although the court's order reduced and dismissed defendant's felony driving under the influence convictions in two separate cases (Orange Co. Super. Court case Nos. 07HF2022 & 08CF1724), the People only appealed the court's order as to defendant's convictions in case number 08CF1724. Thus, our opinion addresses only the appealed portion of the court's order.
DISCUSSION
The sole issue on appeal is whether the court erred by reducing defendant's felony convictions for driving under the influence to misdemeanors under section 17, subdivision (b)(1) and then setting aside defendant's guilty pleas and dismissing the charges under section 1203.4, subdivision (a)(1). Defendant's "entitlement to postconviction relief, and the form thereof, is governed by statute." (People v. Mendez (1991) 234 Cal.App.3d 1773, 1778.) Defendant was not entitled to relief under either statute. The court erred by reducing defendant's convictions to misdemeanors under section 17 , subdivision (b)(1).
In 2010, defendant was charged with and pleaded guilty to felony violations of driving under the influence with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subds. (a) & (b); counts 1 & 2) and admitted he had previously been convicted of three or more separate violations of driving under the influence within 10 years (Veh. Code, § 23550, subd. (a)). These offenses were "wobblers," meaning they could be treated as either felonies or misdemeanors. (Veh. Code, § 23550, subd. (a); People v. Statum (2002) 28 Cal.4th 682, 699 ["a wobbler is 'an offense which may be charged and punished as either a felony or a misdemeanor'"].)
When a defendant has pleaded guilty to a wobbler that was charged as a felony, "the procedures set forth in section 17, subdivision (b) . . . govern the court's exercise of discretion to classify the crime as a misdemeanor." (People v. Park (2013) 56 Cal.4th 782, 790.) The court has the discretion under section 17, subdivision (b)(1) to reduce a wobbler from a felony to a misdemeanor if the sentence imposed by the court is something other than a state prison term. "The trial court has discretion to 'reduce a wobbler to a misdemeanor either by declaring the crime a misdemeanor at the time probation is granted or at a later time—for example when the defendant has successfully completed probation.'" (People v. Tran (2015) 242 Cal.App.4th 877, 885.) But "[i]f state prison is imposed, the offense remains a felony." (People v. Usher (2007) 155 Cal.App.4th 1311, 1320.)
At the time of defendant's sentencing, section 17, subdivision (b)(1) stated: "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison." (Stats. 1989, ch. 897, § 5.)
Contrary to the trial court's finding, the record is not vague. Instead it clearly shows the court imposed two-year state prison terms at the time of sentencing, punishing defendant's convictions as felonies. This sentence is reflected in the reporter's transcript of the plea and sentencing hearing, which was attached to defendant's motion for reduction and dismissal. The transcript indicates defendant was ordered to report to parole, not probation, upon his release from custody. Similarly, the court's minutes of the plea and sentencing hearing state the court imposed a two-year state prison sentence for defendant's violation of Vehicle Code section 23152, subdivision (a) in count 1 and stayed the prison sentence on count 2 under section 654. The felony plea form defendant signed and initialed also indicated defendant understood he was going to be sentenced to a two-year state prison term. Among the provisions that defendant initialed on the plea form was the advisement that read: "I understand that I am not eligible for probation, and I will be sentenced to state prison in this case." Defendant also initialed the "Proposed disposition," indicating he understood he would be sentenced to state prison for two years. Lastly, the abstract of judgment reflects the court imposed a state prison sentence on both counts and stayed the term on count 2 under section 654. Because the court imposed prison terms on defendant's driving under the influence convictions, they were felony offenses and ineligible for later reductions to misdemeanors under section 17, subdivision (b)(1). (People v. Wood (1998) 62 Cal.App.4th 1262, 1267.)
Defendant nevertheless contends the court properly reduced his two felony convictions to misdemeanors under section 17, subdivision (b)(1), because "the trial court actually imposed a sentence 'other than' one in which defendant could ever serve time in a state prison." (Capitalization omitted.) Defendant asserts that while he was sentenced to state prison, the court did not intend for him to go to prison because the court gave him "credit for time served 'on the county level.'" Defendant's argument seems to be that he was not sentenced to prison because he never went to prison as his presentence custody credits exceeded his sentence. Defendant cannot obfuscate the reality of what happened at his sentencing. The court clearly imposed a two-year state prison sentence; it was not stayed or suspended. Because defendant's presentence custody credits exceeded his term of imprisonment, the term was deemed to have been served under section 2900.5. The application of defendant's presentence custody credits to the imposed prison term did not transform his sentence into something "other than imprisonment in the state prison . . . ." (§ 17, subd. (b)(1).) Accordingly, the court could not reduce defendant's felony convictions to misdemeanors under section 17, subdivision (b)(1). The court erred by dismissing the charges under section 1203 .4.
We likewise conclude the court erred by setting aside defendant's driving under the influence convictions and dismissing the charges under section 1203.4, subdivision (a)(1). This statute only provides relief to defendants who have been granted probation, not defendants sentenced to state prison. (People v. Chatman (2018) 4 Cal.5th 277, 291 ["relief under section 1203.4 is not available to former prisoners"]; People v. Parker (2013) 217 Cal.App.4th 498, 502 ["section 1203.4 applies to probationers, not parolees or former prisoners"].) "Generally, section 1203.4 'allows for probationers to have their convictions set aside and the accusations against them dismissed, and similarly provides that, with specified exceptions, such a defendant "shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted."'" (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584.)
Section 1203.4, subdivision (a)(1) states, in pertinent 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; . . . 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, except as provided in Section 13555 of the Vehicle Code." (Italics added.) Relying on the above italicized language, defendant contends the court has discretion to grant relief in cases where probation was never granted when it is in "the interests of justice." In trying to persuade us to adopt his interpretation, defendant asserts "there is a paucity of cases interpreting [this] specific language of [section 1203.4 subdivision (a)(1)] and none of them is on point." We disagree. Multiple cases have interpreted this language in section 1203.4, subdivision (a)(1) and rejected defendant's interpretation.
In People v. Borja (1980) 110 Cal.App.3d 378, the defendant argued "'the interests of justice'" clause in section 1203.4, subdivision (a), gave the court discretion to grant relief "even when a felon had not been placed on probation but had been sentenced to state prison." (Id. at p. 380.) The Court of Appeal rejected the argument, explaining that it "flies in the face of the very language of the statute" which "speaks only in terms of probation." (Id. at p. 381; see People v. Mendez, supra, 234 Cal.App.3d at p. 1780 ["Section 1203.4 applies only to that category of persons who have been admitted to probation and not committed to prison, [California Youth Authority], or other state institutions"].)
Our colleagues in Division One of this district rejected a similar argument in People v. Morrison (1984) 162 Cal.App.3d 995. There, the defendant, who had been found not guilty by reason of insanity, moved under section 1203.4 to have the court vacate the verdict and release her from all its penalties and disabilities. (Morrison, at p. 997.) Relying on the same statutory language as defendant here, the defendant in Morrison argued "the 'interests of justice' language should be read to encompass a defendant" who was not placed on probation but was found not guilty by reason of insanity. (Ibid.) The Court of Appeal disagreed, explaining: "Section 1203.4 speaks only in terms of probation. The first two clauses specifically refer to a defendant who has fulfilled the conditions of probation or who has been discharged prior to the termination of the period of probation. The following provision dealing with the court's discretion to grant relief in 'any other case' and in 'the interests of justice' is clearly intended to apply to probationers who do not fit in any other category." (Ibid.) This third category may include a probationer who has not satisfied the terms of probation (People v. Chatman, supra, 4 Cal.5th at p. 286) but it does not include a former prisoner (id. at p. 291).
The language of section 1203.4, subdivision (a)(1) is clear. The statute provides relief only to probationers; not those sentenced to state prison. (People v. Parker, supra, 217 Cal.App.4th at p. 502; People v. Borja, supra, 110 Cal.App.3d at pp. 381-382.) Having received a state prison sentence for his felony convictions, defendant is not entitled to relief under section 1203.4. Accordingly, the court erred by permitting defendant to withdraw his guilty pleas to the two felony charges and then dismissing those charges. Defendant is not entitled to relief under section 1203 .41.
Defendant argues, in the alternative, if he is not entitled to a dismissal under section 1203.4, subdivision (a)(1), then he must be provided relief under section 1203.41 on equal protection grounds. Section 1203.41, subdivision (a) provides that a defendant sentenced pursuant to section 1170, subdivision (h)(5) may apply to have his or her conviction dismissed if certain criteria are satisfied. But section 1203.41 simply does not apply to defendant because he was not sentenced pursuant to section 1170, subdivision (h)(5).
Defendant was sentenced in July 2010, more than a year before the 2011 Realignment Legislation became effective. (Stats. 2011, ch. 15, §1.) Section 1170, subdivision (h)(7) specifies that the sentencing changes made to subdivision (h) by realignment "shall be applied prospectively to any person sentenced on or after October 1, 2011."
Defendant asserts he should be granted relief under section 1203.41 "because he was given a county level sentence." Again, defendant tries to obfuscate what happened at his sentencing. Defendant was not given a county level sentence. Instead, a state prison sentence was imposed and deemed served based on defendant's presentence custody credits. (§ 2900.5, subd. (a).) Defendant was not given a county jail sentence nor sentenced under section 1170, subdivision (h)(5). Thus, he is not entitled to relief under section 1203.41.
Defendant contends if he is "not afforded some avenue of relief, . . . then his right to the equal protection of the laws would be violated." Defendant has suffered no equal protection violation. As a felon who was sentenced to state prison, defendant is similarly situated to other former prisoners not to probationers and can seek relief from his felony convictions through the procedures set out in section 4852.01 et seq. or any other statute that may apply to him. (People v. Borja, supra, 110 Cal.App.3d at p. 382.)
DISPOSITION
The postjudgment order declaring defendant's felony convictions for violating Vehicle Code section 23152, subdivisions (a) and (b) to be misdemeanors under section 17, subdivision (b)(1) and dismissing these charges under section 1203.4, subdivision (a)(1) is reversed. The matter is remanded with directions to reinstate defendant's felony convictions. This disposition is without prejudice to defendant seeking relief under section 1203.42.
IKOLA, J. WE CONCUR: FYBEL, ACTING P. J. THOMPSON, J.