Opinion
E053489
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL GUTIERREZ, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion nas not been certified for
publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI07799)
OPINION
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Miguel Angel Gutierrez contends the trial court abused its discretion by denying, without prejudice, his motion to withdraw his plea, reduce to a misdemeanor, and dismiss his felony charge from 1998. We affirm.
BACKGROUND
On June 15, 1998, defendant pled guilty to assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) His plea agreement provided that "if [he] successfully completes probation, [the] district attorney will not oppose reduction to misdemeanor + expung[e]ment of conviction per 1203.4, etc." Defendant was granted supervised probation for a period of three years; one of the terms of probation was that he violate no law.
Defendant completed his probation without being found to have committed any violations, and had paid all of his fees and fines. However, on November 6, 2000 (during his period of probation), he was convicted of reckless driving involving alcohol or drug use. (Veh. Code, § 23103.5.)
On January 28, 2011, defendant filed a motion asserting that he was entitled to relief under Penal Code section 1203.4 because he had fulfilled the conditions of his probation. The motion stated, "[defendant] is attempting to turn his life around and find gainful employment. He has been unemployed since 2007 and cannot find a job because of his criminal record. He would like to apply for positions as a truck driver or plumber. [Defendant] currently volunteers at his church and contributes to supporting his three children by recycling whatever materials people donate to him. [Defendant] respectfully requests a dismissal and reduction to a misdemeanor on this case so that he may be able to apply for employment opportunities."
A supplemental probation report form recited defendant's 2000 conviction and two other nonconviction arrests. The probation officer indicated on the form that defendant "is not eligible for request(s)," and recommended that the request be "not granted." The report also noted that defendant had completed probation without it being revoked, and that his "record indicates he has not suffered a new conviction for many years. Despite his failure to substantially comply with probation conditions, his lack of a serious criminal record since completion of his felony probation term suggests he has been successfully rehabilitated. The undersigned may not recommend the defendant is eligible for relief pursuant to [Penal Code section] 1203.4; however, it appears the defendant is deserving of such a grant due to his lack of a recent criminal offense and the court may use its discretion pursuant to [Penal Code section] 1203.4 to grant such relief."
At the hearing, defendant's trial counsel stated, "[defendant is] here requesting relief because he's had difficulty finding employment, and I would submit on the last sentence of the recommendation." The People opposed the request "for the reasons cited in the probation officer's finding, the subsequent illegal activity the defendant engaged in." Defendant's counsel responded, "the violations were from '99 and 2000.
I don't believe [defendant] is presently on probation or parole or facing any charges anywhere else, so I do believe he is eligible, and I would submit."
The trial court then inquired as to "the reason for the request." Defendant's trial counsel responded, "Mainly for employment purposes, your Honor. He's having difficulty with this on the record and is unable to gain employment. And it has been so for several years is my understanding."
The trial court then stated, "Well, I haven't really gotten any more information about what jobs he's applied for, what jobs he's been turned down on. Having a felony on his record, of course, will make a difference. But I don't really know what he's done. [¶] Usually in a case like this I would ask for some additional information about what he's been doing with his life. All the probation [report] talks about is past history related to the offense, but I don't know what he's been doing, what he's done with his life, where he's been, or anything of that kind. [¶] So I'll deny the request. And in the future, if there's going to be an application—and I've said this before in a case such as this—I think it's appropriate for the defendant to submit some kind of supplemental information. [¶] . . . [¶] So if there's additional information in the future, the Court will consider it."
DISCUSSION
Defendant contends the trial court abused its discretion by denying his Penal Code section 1203.4 motion. He acknowledges that, contrary to his moving papers below, he was not entitled to relief as a matter of right but, in effect, asserts that the evidence presented was such that it was unreasonable to deny him discretionary relief. Because we disagree with defendant's contention on the merits, we do not address the People's contention that the issue has been forfeited. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [appellate courts generally have discretion to address issues even if they have been forfeited].)
"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 . . . ." (Pen. Code, § 1203.4, subd. (a).)
"As the statutory language makes clear, there are three situations in which a defendant may be entitled to have his or her conviction dismissed. The first two—when the defendant fulfilled the conditions of probation for the entire probationary period or when the defendant was discharged before the termination of the period of probation— require the court to grant the requested relief if the conditions are met. The last requires the court to determine whether, in its discretion and the interests of justice, the relief should be granted." (People v. McLernon (2009) 174 Cal.App.4th 569, 574.) "[I]n determining whether to grant relief under the discretionary provision, the trial court may consider any relevant information, including the defendant's postprobation conduct." (Id. at p. 577.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Defendant presented a motion focused on mandatory relief that contained a single paragraph describing his unemployment since 2007, his desired career in plumbing or trucking, his volunteering at church, and his financial reliance on donated materials that he recycles. The probation report noted defendant's ineligibility for mandatory relief due to his conviction while on probation, but stated that defendant appeared deserving of relief due to his lack of recent criminal behavior. However, before the trial court could grant defendant discretionary relief, it had to be satisfied that granting relief was in the interests of justice. In this context, there was nothing irrational or arbitrary about the trial court's decision to deny the motion and request additional information about defendant's background.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.