Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB007401, Bert L. Swift and William Jefferson Powell IV, Judges.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Pursuant to a plea agreement, defendant and appellant Patricia Lynn Clemens pled guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in exchange for the dismissal of one count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) and placement in Proposition 36 probation. Defendant subsequently violated several conditions of her probation. The court thus revoked her Proposition 36 probation and referred her to drug court for supervision.
On appeal, defendant argues that the trial court erred in denying her Penal Code section 1203.4 motion to expunge her conviction and her section 17, subdivision (b) motion to reduce her conviction to a misdemeanor. We find no error.
All further statutory references will be to the Penal Code unless otherwise noted.
PROCEDURAL BACKGROUND
Defendant was charged with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1) and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). On April 15, 2005, she pled guilty to count 1, pursuant to a plea agreement, and count 2 was dismissed. On May 13, 2005, the court placed her on Proposition 36 probation under section 1210.1, which requires that “certain classes of offenders receive probation and drug rehabilitation treatment.” (People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 81.)
On April 6, 2006, a petition to revoke defendant’s probation was filed, alleging that she had violated one term of her probation (to not use a controlled substance). Defendant admitted the allegation.
On April 20, 2006, a second petition to revoke probation was filed, alleging that defendant had violated several probation conditions (violate no law, report to the probation officer, cooperate in a rehabilitation plan, not use a controlled substance, and submit to drug testing). Defendant admitted the allegations, and the court found that she had violated her probation for the second time.
On January 22, 2007, a third petition to revoke defendant’s probation was filed, alleging that defendant had violated three conditions (cooperate in a rehabilitation plan, not use a controlled substance, and complete a § 1210 drug treatment program). Defendant admitted the allegations. The court revoked defendant’s Proposition 36 probation and “converted” her to drug court for supervision.
A probation officer submitted a letter on January 31, 2007, which stated that since defendant had been accepted into drug court, the court should continue probation under the original conditions, with added conditions, including that she participate in the drug court rehabilitation program. At a hearing on February 5, 2007, the court stated it was “converting this to drug court.” The court then added the suggested terms and ordered defendant to participate in a drug court rehabilitation program.
At a hearing on June 16, 2008, the court acknowledged that defendant had been “376 days clean and sober” and stated: “But [defendant], your probation has been terminated, so there’s nothing more that we can do. And since you have elected not to.... [¶]... [¶]... reinstate, I won’t reduce it under [section] 17[,] [subdivision] b. You’re stuck with your conviction.” Defendant said, “Okay.” The court minutes reflect that defendant’s probation expired on May 19, 2008, but defendant refused to stipulate to extending probation in order to have the case dismissed upon completion of the drug court program.
On July 30, 2008, defendant filed a written motion to dismiss her conviction under section 1203.4 and to reduce her conviction to a misdemeanor under section 17, subdivision (b). In her motion, she claimed that she “was sentenced to an in[]patient residential treatment program which she successfully completed.” She then alleged that “[a]fter completing the residential treatment she remained in Proposition 36 until February 5, 2007, when she was placed in drug court.” She alleged that she graduated from the drug court program on June 9, 2008.
On August 13, 2008, a hearing on the motions was held before a different judge, the Honorable William Jefferson Powell IV. (Judge Bert L. Swift had presided over all of the hearings mentioned in this appeal, except the first hearing on April 15, 2005, when the court initially placed defendant on Proposition 36 probation.) Judge Powell asked, “What has changed between June 16th and August the 13th? That is the last time she applied for this in front of Judge Swift who knew her better than this Court because he was the drug court judge.” The court noted that the minutes from the hearing on June 16 indicated that probation expired on May 19, 2008, and that defendant did not want to stipulate to extend probation in order to have the case dismissed upon completion of the drug court program. The court concluded that defendant “was just let go from drug court with no consequences.” It then noted that Judge Swift denied the two motions and said, “I assume it was simply a matter of [defendant] indicates she didn’t wish to have probation revived.” The court found there had been no change of circumstance and denied the section 1203.4 and section 17, subdivision (b) motions.
ANALYSIS
The Trial Court Properly Denied Defendant’s Motions
Defendant argues that both judges erred in believing they did not have jurisdiction to reduce her conviction to a misdemeanor, or to dismiss it. She claims the court refused to reduce her conviction or dismiss it simply “because she was no longer on probation.” In other words, she contends the trial court never reached the merits of the motions, and the matter must be remanded for the court to do so. We conclude the motions were properly denied and that any error was harmless.
Section 17, Subdivision (b)
Defendant specifically argues that the court retained discretion to reduce her conviction, because a defendant may apply to have a wobbler declared a misdemeanor at any time, even after probation is terminated. The court did not provide a detailed explanation as to its decision to deny the section 17, subdivision (b) motion. Judge Swift acknowledged that defendant had been sober for 376 days but then stated that since her probation had been terminated, there was nothing more the court could do. In addressing defendant, Judge Swift said, “since you have elected not to.... [¶]... [¶]... reinstate, I won’t reduce it under 17b. You’re stuck with your conviction.” Judge Powell subsequently deferred to Judge Swift’s original denial since there had been no change of circumstance. We infer from Judge Swift’s statement that the court gave defendant the opportunity to extend her probation, presumably so she could complete her term of probation, but she elected not to do so. We note that defendant did not disagree with the court’s rendition of the facts and circumstances, but simply said, “Okay.” Furthermore, the record does not support defendant’s claim that the court refused to reduce or dismiss her conviction only because it mistakenly believed it did not have the jurisdiction to do so. Judge Swift said, “I won’t reduce it under 17b” (italics added), not “I can’t reduce it.” Even if the court did err by failing to reach the merits of the motion because it did not think it had the jurisdiction to do so, any error was harmless. As relevant here, section 17, subdivision (b) authorizes the reduction of a wobbler offense by court declaration of the offense as a misdemeanor, after a grant of probation. (Pen. Code, § 17, subd. (b)(3).) Factors that a court considers in the exercise of section 17, subdivision (b) discretion include “‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) Defendant pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was placed on probation. However, she admittedly violated her probation numerous times by continuing to use controlled substances. Her continued use of controlled substances demonstrates her lack of remorse and poor attitude toward the offense. Thus, the record supports the court’s denial of the section 17, subdivision (b) motion.
Section 1203.4Defendant further claims the court had no discretion to deny her a dismissal under section 1203.4 since she was entitled to it upon successful completion of her probation. “Section 1203.4 allows any convicted felon or misdemeanant who has been granted probation to petition to have his record expunged, after the period of probation has terminated.” (People v. Butler (1980) 105 Cal.App.3d 585, 587.) Section 1203.4, subdivision (a) provides: “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....”
Defendant is correct that she would have been entitled to relief if she had fulfilled the conditions of her probation for the entire period. (People v. Butler, supra, 105 Cal.App.3d at p. 587.) However, the record does not show that she successfully completed her probation. The record shows that she admittedly violated probation numerous times and eventually had her probation revoked. Moreover, on appeal, defendant merely asserts that she successfully completed the drug court rehabilitation program. However, completion of that program was only one of many conditions with which she was ordered to comply.
We note the record is unclear regarding defendant’s probation status after the court revoked her probation. At the time the court converted the matter to the drug court, it deleted a probation condition, and added two more, at the recommendation of the probation officer. However, at the next hearing on June 16, 2008, the court stated that defendant’s probation had been terminated and she had elected not to reinstate it. Defendant did not contradict the court, but instead agreed with the court and said, “Okay.” In any event, we defer to the trial court and presume that its judgment was correct, since defendant has failed to affirmatively show error. “‘In accordance with the usual rule on appeal, the judgment or order of the trial court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown. [Citation.] Where the evidence is in conflict, the appellate court will not disturb the findings of the trial court.’ [Citation.]” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 123.)
Moreover, any error was harmless, since section 1203.4 “rewards those who comply with their terms of probation or are relieved from complying.” (People v. Butler, supra, 105 Cal.App.3d at p. 588.) The record clearly demonstrates that defendant did not comply with her terms of probation.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., GAUT, J.