Opinion
D070483
05-12-2017
THE PEOPLE, Plaintiff and Respondent, v. CARL E. BLOCK, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS266850) APPEAL from an order of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed in part and reversed in part with directions. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Carl E. Block was granted an early termination of his probation upon a showing he had been law abiding during his term of probation and had successfully completed a residential treatment program. However, without setting forth any reason for doing so, the trial court denied Block's further request for relief under Penal Code section 1203.4. On the record presented here, such relief was mandatory. Accordingly, we reverse the trial court's order insofar as it denied Block relief under Penal Code section 1203.4 and instruct the trial court to permit Block to withdraw his plea and dismiss the charges against him, as required by the statute.
FACTUAL AND PROCEDURAL HISTORY
A. 2013
On September 4, 2013, Block was charged in a seven count information with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1); illegal possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 2); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 3); possession of a billy (Pen. Code, § 22210; count 4); receiving stolen property (Pen. Code, § 496, subd. (a); count 5); possession of tear gas by a felon (Pen. Code, § 22810, subd. (a); count 6); and purchase and possession of a tear gas weapon (Pen. Code, § 22810, subd. (e)(1); count 7). The information further alleged Block had suffered a previous felony conviction within the meaning of Penal Code section 1203, subdivision (e)(4). The People sought a revocation of Block's then current probation and mandatory supervision. (Pen. Code, §§ 872, 1170, subd. (h)(5)(B), 1203.2.)
All further statutory references are to the Penal Code unless otherwise indicated. --------
Block pled guilty to three counts of the information: possession of a firearm by a felon, possession of a billy, and possession of tear gas. On November 14, 2013, the trial court sentenced Block to formal probation for three years with the requirement that he serve 365 days in custody, half of which was to be served in a residential treatment program. The court also formally revoked his previous probation, reinstated it, and then terminated it.
B. 2016
On February 5, 2016, the trial court heard Block's initial request that his probation be terminated early. The trial court denied the request but converted the probation from formal probation to informal or summary probation.
On March 11, 2016, the trial court heard Block's renewed request that his probation be terminated early. At the March 11, 2016 hearing, Block was acting in propria persona and advised the court that he had completed a residential treatment program. However, at that point, he was unable to provide the court with proof he had done so. Accordingly, the trial court denied his renewed request and stated: "I already denied the request to terminate probation. I did convert it to summary probation. Because you've had no violations of probation that I saw, sounds like you've been remaining law abiding, I'm willing to see the information you have from the residential treatment program, but I'm not willing to make any changes today."
Block filed another petition, with proof of his successful completion of the residential treatment program. In addition to asking that his probation be terminated early, the petition also asked for relief under section 1203.4. The petition included a declaration executed by Block in which he stated that all terms of his probation had been fulfilled and completed, that there had been no violations of probation and that he was in good standing with his probation officers.
The petition was heard on May 20, 2016 before a different trial judge. In light of the new documentation Block presented, as well as the People's representation that Block was advised at the prior hearing that his probation would be terminated if the documentation was presented, the trial court granted Block's request for early termination of his probation. The trial court stated: "I will grant your motion for early termination of probation. That's based upon the representation that my colleague, Judge Espana, made to you if you showed her proof that you were in a residential treatment program. Proof has been shown to the court. So I think that based upon that, the court will grant your request for early termination of probation." However, the trial court then, without comment, denied Block's request for relief under section 1203.4.
DISCUSSION
In general, section 1203.4 provides for the expungement of convictions, when, as here, a defendant has successfully completed a period of probation. Section 1203.4, subdivision (a)(1) states, in pertinent part: "(a)(1) 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 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."
" ' "On application of a defendant who meets the requirements of section 1203.4[, the trial] court not only can but must proceed in accord with that statute." ' " (People v. Parker (2013) 217 Cal.App.4th 498, 501.) " 'The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation.' " (People v. Chandler (1988) 203 Cal.App.3d 782, 788-789.) " ' "A grant of relief under section 1204.3 is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction and, with a few exceptions, to restore him to his former status in society to the extent the Legislature has power to do so." ' " (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584.)
The record here shows that Block was entitled to relief under section 1203.4, subdivision (a)(1). There is no dispute that Block's probation was terminated early. Contrary to the People's argument, the record also shows that, at the time Block requested relief, he was not then "serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense." The trial judge at the March 11, 2016 hearing stated on the record that it appeared Block had been law abiding, and, in his later declaration, Block stated that he had completed the terms of his probation, had no violations, and was in good standing with his probation officers. The only reasonable inference to be drawn from those circumstances is that, at the time of the May 20, 2016 hearing, Block was not serving a sentence, not on probation and not charged with an offense.
We also reject the People's contention that Block did not present the trial court with a proof of service of his petition. The fact that Block had not filed a proof of service of his petition at the time of the May 20, 2016 hearing does not deprive him of relief on appeal. The People did not raise the absence of a proof of service in the trial court and do not contend they did not get proper notice of Block's petition. As Block points out, by failing to raise the proof of service issue in the trial court, the People waived their right to raise it on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 351.)
Because Block was entitled to relief under section 1203.4, we must reverse the trial court's order insofar as it denied him that relief.
DISPOSITION
The trial court's order insofar as it denied Block relief under section 1203.4 is reversed, and the trial court is directed to permit him to withdraw his plea and to dismiss the charges against him.
BENKE, J. WE CONCUR: McCONNELL, P. J. HALLER, J.