Opinion
D071044
10-19-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGG HUME ERLANDSON, Defendant and Appellant.
Higbee & Associates and Mathew Kidman Higbee for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR97567) APPEAL from an order of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed. Higbee & Associates and Mathew Kidman Higbee for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Gregg Hume Erlandson appeals from an order denying his motion to withdraw his 1988 guilty plea to committing a lewd or lascivious act on a child under the age of 14. (Pen. Code, §§ 1203.4, subd. (a), 288, subd. (a).) Erlandson contends the court lacked discretion to deny him relief because he had completed all probation requirements. We affirm.
Statutory references are to the Penal Code.
BACKGROUND
In 1988, the People charged Erlandson by felony complaint of committing four lewd or lascivious acts on a child under the age of 14. (§ 288, subd. (a).) That year, Erlandson pleaded guilty to one of the counts and the court dismissed the others. The plea form stated Erlandson could serve a maximum eight-year sentence. The court suspended imposition of sentence and placed him on probation for five years. Among other conditions of probation, he was required to attend therapy and register as a sex offender.
In May 2016, Erlandson moved to withdraw his guilty plea under section 1203.4, on the ground he was entitled to relief because he had fulfilled the probation conditions. The court denied his motion and a different judge denied reconsideration.
DISCUSSION
Erlandson contends that when he completed his probation conditions in 1994, he acquired a "vested right" to relief under the then applicable version of section 1203.4; therefore, the court erred by denying him relief "regardless of whether such changes occurred by statute or by court decision." He contends that nothing in the section 1203.4 amendment indicated it would apply retroactively. He acknowledges contrary case law but argues that applying those cases to him would violate his constitutional due process rights.
Section 1203.4 provides in relevant part: "(a)(1) In any case in which a defendant has fulfilled the conditions of probation . . . , the defendant shall . . . be permitted by the court to withdraw his . . . plea of guilty . . . and enter a plea of not guilty . . . and . . . the court shall thereupon dismiss the accusations or information against the defendant." In 1997, the Legislature added subdivision (b) to section 1203.4, which provides an exclusion stating in part: "Subdivision (a) of this section does not apply . . . to any violation of . . . [s]ection 288."
In People v. Acuna (2000) 77 Cal.App.4th 1056 (Acuna), the Court of Appeal upheld the denial of section 1203.4 relief to a person who had pleaded guilty to violating section 288 before section 1203.4's 1997 amendment. The court rejected the defendant's argument that application of the amended statute denied him the benefit of his plea bargain, finding he had not expressly bargained for relief under section 1203.4. (Id. at p. 1061.) Moreover, he still received a substantial benefit from the plea bargain by avoiding a prison sentence. (Id. at p. 1062 [section 1203.4's ban on relief for convictions under section 288 is consistent with the policy of public disclosure; public safety is enhanced if those having been convicted of child molestation are not able to truthfully represent that they have no such conviction].)
In Doe v. Harris (2013) 57 Cal.4th 64 (Doe), the court held that requiring a sex offender to comply with retroactive postconviction amendments to California's Sex Offender Registration Act (§ 290 et seq.) did not violate his plea agreement. The Doe court declared the general rule in California that a plea agreement incorporates and contemplates " ' "not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy." ' " (Doe, at p. 66; see People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) The court stated that prosecutorial and judicial silence on the possibility the Legislature might amend the statutory consequence of a conviction ordinarily does not allow courts to interpret the plea agreement as an implied promise that the defendant will not be subject to the amended law. (Doe, at p. 71.)
The Doe court stated Acuna was "consistent with a rule that the absence of any discussion during plea negotiations of the possibility of changes to the law does not translate into an agreement the defendant will be unaffected by statutory amendments." (Doe, supra, 57 Cal.4th at p. 72; see People v. Smith (2014) 227 Cal.App.4th 717, 731 [citing Doe, "a probationer's entitlement to relief under section 1203.4 is not frozen at the time of the probationary grant but is subject to subsequent legislative amendments to the statute"].)
We conclude that relief under section 1203.4 was not an express provision of Erlandson's plea bargain. He faced a maximum eight-year prison term. Accordingly, by avoiding prison, he substantially benefited from his plea agreement. Denial of section 1203.4 relief did not violate his plea bargain and therefore did not violate his constitutional rights.
In People v. Ansell (2001) 25 Cal.4th 868, the California Supreme Court upheld, against an ex post facto challenge, the trial court's retroactive application of an amendment to section 4852.01. (Ansell, at pp. 871-872.) The amendment made a certificate of rehabilitation unavailable to certain sex offenders. (Id. at p. 871.) A certificate of rehabilitation and/or a resulting pardon from the Governor removes or alleviates many more disabilities than does a section 1203.4 dismissal of a conviction. (Ansell, at pp. 872-873, 877.) Nonetheless, the Supreme Court concluded that the amendment of section 4852.01 applied retroactively. (Ansell, at pp. 880-893.)
Erlandson argues Ansell was solely concerned with relief under section 4852.01, not with section 1203.4. However, we agree with the court in People v. Arata (2007) 151 Cal.App.4th 778, 785-786, which rejected a similar argument and held that the Ansell decision applied to both statutes: "[H]ere we consider the 1997 amendment of section 1203.4. Both amendments were contained in Assembly Bill No. 729 (1997-1998 Reg. Sess.); they were the only provisions of the bill. (Stats. 1997, ch. 61.) The amendment to section 4852.01 provided the certificate of rehabilitation procedures 'shall not apply' to persons convicted of certain sex offenses. (§ 4852.01, subd. (d).) The amendment to section 1203.4 provides the relief set forth in subdivision (a) 'does not apply' to any of certain sex offenses. (§ 1203.4, subd. (b).) The language of the two statutes is very similar and neither has any date restrictions. The legislative history is identical. We recognize that the issue in Ansell was an ex post facto violation and here defendant asserts a due process violation, but the retroactivity analysis is the same in either case."
Erlandson relies on INS v. St. Cyr (2001) 533 U.S. 289, 321 for his claim that he had a vested right to obtain relief under the former version of section 1203.4. In St. Cyr, a citizen of Haiti, who had been admitted as a lawful permanent resident of the United States, pleaded guilty to a drug charge. That conviction made him deportable, although at the time of his plea he was eligible for a waiver of deportation at the discretion of the Attorney General. By the time deportation proceedings were commenced, the law had changed and the Attorney General believed he no longer had discretion to waive deportation in St. Cyr's case. (Id. at p. 293.) After first determining Congress did not intend the new laws to have retroactive effect, the United States Supreme Court considered whether applying the new laws to St. Cyr would produce an impermissible retroactive effect. (Id. at p. 320.) "A statute has retroactive effect when it ' "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." ' " (Id. at p. 321.) The court found that eliminating the discretionary deportation waiver relief "for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly ' "attaches a new disability, in respect to transactions or considerations already past." ' " (Ibid.)
In reaching this conclusion, the St. Cyr court employed the retroactivity analysis of Landgraf v. USI Film Products (1994) 511 U.S. 244, 315.) Landgraf set forth a two-step analysis: "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." (Landgraf, supra, at p. 280.) Absent a constitutional restriction on retroactive application, courts will give a statute its intended scope. (Id. at p. 267.)
Following the Landgraf analysis, we first consider whether the Legislature intended that the amendment to section 1203.4 would apply to those who were convicted before the date of the amendment. We are bound by Ansell, in which the California Supreme Court concluded the amendment applied to Ansell based on his 1980 convictions. (Ansell, supra, 25 Cal.4th at p. 883; Auto Equity Sales, Inc. v Superior Court (1962) 57 Cal. 2d. 450, 455-456.) As to the second step of the analysis, there would be no impermissible retroactive effect of applying section 1203.4 that would impair Erlandson's constitutional rights by its denial. Because section 1203.4 relief was not a part of Erlandson's plea bargain, we conclude he did not have a reasonable expectation of such relief; therefore, there was no due process violation.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.