Opinion
No. A150622
02-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ABDUL DONELL BLACK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 50013235)
Defendant Abdul Donell Black seeks reversal of the trial court's denial of his petition, which he brought under Penal Code section 1203.4, to dismiss his 2002 conviction for discharge of a firearm with gross negligence. Among other things, defendant contends the trial court should have granted his petition because he successfully completed probation. The People agree. The parties are correct. We reverse and remand this matter to the trial court with the instruction that it grant defendant's petition.
All statutory references are to the Penal Code. --------
BACKGROUND
In September 2000, the Contra Costa County District Attorney alleged in an information that defendant discharged a firearm with gross negligence (Pen. Code, § 246.3), and that he personally used a firearm in committing this offense (§ 12022.5, subd. (a)(1)).
A subsequent probation report indicates that in 2002 defendant chased a man down a street in Richmond, California, shooting at him several times with children in the vicinity. Police nearby responded immediately. The victim was uncooperative. Defendant was taken into custody and the police retrieved the gun, magazine and spent cartridges.
Defendant ultimately agreed to a negotiated disposition of his case and pled no contest to the charge that he discharged a firearm with gross negligence. The trial court accepted his plea, found him guilty of the charge, dismissed the firearm enhancement, suspended imposition of sentence, placed defendant on probation for two years and ordered him to pay certain fines and costs. Defendant completed probation without incident and the court terminated his probation as successful in September 2002.
In November 2006, defendant moved for reduction and dismissal of his conviction. The probation department reported that in April 2006, defendant's ex-wife obtained a protective order valid for one year barring defendant from contact with her or his daughter. Defendant was neither arrested nor charged in the matter. The department recommended denial of his motion because of the "severity of the original conviction" and because it was "disconcerting" that his wife had obtained a protective order against him. The trial court denied defendant's motion without prejudice.
In June 2016, defendant petitioned under section 1203.4 for dismissal of his conviction. Defendant asserted, and the probation department reported, that he was not serving a sentence or on probation for, nor was he charged with, any offense. The department also reported that defendant had paid all fines and fees imposed by the court. Nonetheless, the department recommended that the trial court deny defendant's motion because in 2016 a woman had obtained a three-year restraining order against him.
At the hearing on defendant's petition, the trial court stated it was not going to grant defendant's motion in light of "a recent civil harassment restraining order against him." The court concluded that the restraining order "belies that he's leading a lawful life." The court indicated it did not need to review letters submitted on defendant's behalf, stating, "If you got a civil harassment restraining order and you were convicted of shooting at people, I don't think I should dismiss the charge." It denied defendant's petition.
Defendant filed a notice of appeal.
DISCUSSION
Defendant first argues that the trial court erred as a matter of law by denying his petition. Defendant contends he was entitled under section 1203.4 to dismissal of his conviction for discharging a firearm with gross negligence because he fulfilled his probation conditions for the entire probation period, was not at the time of his petition serving a sentence or on probation for any offense, and was not charged with the commission of any offense. The People agree. The parties are correct.
Section 1203.4 states in relevant 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 . . . ." (§ 1203.4, subd. (a)(1).)
Thus, if a petitioner has fulfilled the conditions of probation for the entire period of probation and his or her existing circumstances satisfy the other requirements of section 1203.4, subdivision (a)(1), "the court is required to grant the requested relief." (People v. Butler (1980) 105 Cal.App.3d 585, 587.) The defendant requesting dismissal of a conviction under section 1203.4 "is entitled as a matter of right to its benefits upon a showing that he 'has fulfilled the conditions of probation for the entire period of probation.' " (People v. Chandler (1988) 203 Cal.App.3d 782, 788; People v. Guillen (2013) 218 Cal.App.4th 975, 991; People v. Holman (2013) 214 Cal.App.4th 1438, 1459.) The trial court has "no discretion but to carry out its part of the bargain with the defendant." (Chandler, at p. 788.)
This relief of dismissal " ' "is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction." ' " (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584.) However, a dismissal " ' "does not, properly speaking, 'expunge' the prior conviction," ' " nor does it " ' "render the conviction a legal nullity. Instead, [the dismissal] provides, [subject to certain exceptions], that the defendant is ' "released from all penalties and disabilities resulting from the offense." . . . "That final judgment of conviction is a fact; and its effect cannot be nullified . . . by . . . the . . . order dismissing the action after judgment." ' " ' " (Ibid.; § 1203.4, subd. (a)(1).) Among the exceptions are that the conviction may be pleaded and proved in subsequent prosecutions (§ 1203.4, subd. (a)(1)) and that a dismissal does not permit a person to own, possess, or have custody or control any firearm (§ 1203.4, subd. (a)(2).) Also, section 1203.4 does not release a defendant from the "nonpenal restrictions adopted for protection of public safety and welfare" (People v. Vasquez (2001) 25 Cal.4th 1225, 1230) or from a statutory duty to register as a sex offender. (People v. Acuna (2000) 77 Cal.App.4th 1056, 1060.)
The trial court erred as a matter of law when it denied defendant's petition. It was required to grant the petition in light of defendant's successful completion of probation, the lack of any present criminal charges and the lack of any convictions for which he was serving a sentence or on probation. Neither the existing restraining order against defendant nor the nature of defendant's original conviction was an exception to this mandatory dismissal. The court's concern that defendant was not leading a "lawful life," without more, was not an exception under the statute.
Therefore, we must reverse the court's denial of defendant's petition. In light of our conclusion, we have no need to, and do not, address defendant's abuse of discretion and ineffective assistance of counsel arguments.
DISPOSITION
We reverse the court's denial of defendant's petition to dismiss his conviction for discharging a firearm with gross negligence and remand this matter to the trial court with the instruction that it grant defendant's petition.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.