Opinion
D076381
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER KIRSCHNER, Defendant and Appellant.
Law Offices of C. Matthew Missakian, Inc. and Matthew Missakian for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD118216) APPEAL from an order after judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed. Law Offices of C. Matthew Missakian, Inc. and Matthew Missakian for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
On June 3, 1996, Alexander Kirschner (Kirschner) pled guilty to one felony violation of Penal Code section 288, subdivision (a), as part of a plea bargain in which 10 other counts were dismissed. He completed three years of probation. Then, on June 24, 2019, he filed a petition for dismissal and expungement pursuant to section 1203.4. The superior court denied his petition on July 30, 2019.
Further statutory references are to the Penal Code unless otherwise specified. --------
Kirschner challenges the denial of his petition for dismissal and expungement on two grounds. He asserts (1) he substantially relied on the implicit promise of expungement, under section 1203.4, when he entered his plea and was deprived of the benefit of his bargain; and (2) his reliance on the promise of relief required, as a matter of due process, that he be afforded the benefit of his bargain. We reject these contentions and affirm the trial court's order after judgement.
I.
BACKGROUND AND PROCEDURAL HISTORY
A.
The Plea Agreement and Surrounding Circumstances
On March 7, 1996, Kirschner was charged with 10 counts of child molestation (§ 288, subd. (a); counts 1-10) and one count of violating the requirement that he register as a sex offender (§ 290, subd. (g)(1); count 11.)
On June 3, 1996, Kirschner entered a guilty plea to count 7 of child molestation (§ 288 subd. (a)) in exchange for the dismissal of all other counts and an agreement that he would be granted probation and ordered to serve no more than one year in local custody. On July 8, 1996, he was placed on probation and sentenced to serve 365 days in custody. Kirschner completed his probation on July 7, 1999. Despite completing his probation, he waited 20 years to submit his petition for section 1203.4 relief.
B.
Changes in the Law Concerning Section 1203 .4 Relief
Section 1203.4, subdivision (a) requires the court to permit a defendant who has fulfilled the conditions of probation to obtain relief from the conviction and all disabilities accompanying the conviction. (See People v. Arata (2007) 151 Cal.App.4th 778, 782 (Arata).) The defendant must be advised of the right to section 1203.4 relief in the probation papers; the relief may be granted at any time after termination of probation; and the defendant may apply for the relief in person, through an attorney, or through a probation officer. (§ 1203.4, subd. (a)(1).)
In 1996, when Kirschner pled guilty to the section 288 offense, section 1203.4 relief was available to sex offenders. (Historical and Statutory Notes, 50E West's Ann. Pen. Code (2015 ed.) foll. § 1203.4, p. 296.) Subsequent to Kirschner's guilty plea, in 1997 (effective January 1998), section 1203.4 was amended to exclude certain sex offenders, including individuals (like Kirschner) who were convicted of violating section 288. (§ 1203.4, subd. (b); Historical and Statutory Notes, 50E West's Ann. Pen. Code, supra, foll. § 1203.4, p. 296; Arata, supra, 151 Cal.App.4th at p. 783; see People v. Ansell (2001) 25 Cal.4th 868, 877-880, & fn. 19.) The 1997 amendment applies retroactively to defendants convicted and sentenced before the amendment's effective date. (Arata, at pp. 784-785; see Ansell, at pp. 880-893.)
C.
Kirschner's Petition for Relief Under Section 1203 .4
On June 24, 2019, more than 23 years after he pled guilty and almost 20 years after he completed probation, Kirschner filed a petition for dismissal and expungement pursuant to section 1203.4. He submitted a declaration in support of the petition that stated he was advised by his attorney at the time of the plea that his conviction could be dismissed and expunged if he successfully completed probation. Kirschner also submitted a declaration signed by the attorney who represented him at the time of his plea. Counsel did not specifically remember whether he discussed section 1203.4 with Kirschner but confirmed that he (like other attorneys) routinely discussed section 1203.4 dismissals with his clients while discussing whether to take a plea. Kirschner argued that under controlling precedent, his reliance on the promise of relief under section 1203.4 required, as a matter of due process, that he be afforded the benefit of his bargain.
The district attorney opposed the petition, contending the requested relief was not available under the current law and that Kirschner did not supply evidence that section 1203.4 relief was part of his plea bargain. The court agreed with the district attorney, stating its contention that Kirschner failed to offer evidence that he contemplated section 1203.4 relief at the time the bargain was entered. The court contrasted Kirschner's plea bargain with specific plea agreements wherein certain counts were, "[D]ismissed after successful completion of [probation]." However, there was no evidence before the court to support a similar conclusion in Kirschner's case. The court concluded by stating that given the statutory scheme of section 1203.4, granting relief to Kirschner was impermissible. The court denied the petition on July 30, 2019.
II.
DISCUSSION
Kirschner challenges the order denying his petition for dismissal and expungement. He contends (1) he substantially relied on the implicit promise of expungement, under section 1203.4, when he entered his plea and was deprived of the benefit of his bargain; and (2) his reliance on the promise of relief required, as a matter of due process, that he be afforded the benefit of his bargain. For reasons we shall explain, we reject these contentions.
Penal Code Section 1203.4 Relief
Kirschner argues his plea agreement contained an implicit promise of section 1203.4 relief, and he substantially relied on that promise in his decision to accept the plea.
Kirschner likens his petition to the defendant's in Arata, supra, 151 Cal.App.4th 778. In Arata, the defendant was convicted of violating section 288. (Arata, at p. 782.) He argued that it violated due process to apply a provision enacted after his conviction, which made relief under section 1203.4 unavailable to him because he entered into the plea agreement in reliance on the implicit promise of section 1203.4 relief. (Arata, at p. 781.) The court determined section 1203.4 was within defendant's contemplation and knowledge when he entered his plea because the circumstances attending to it established that the promise of expungement was a part of the parties' understanding and had provided a significant inducement for the plea. (Arata, at p. 783.) Specifically, counsel for defendant during the plea negotiations submitted a declaration in support of defendant's motion for expungement stating it was counsel's habit, custom, and practice to inform clients of section 1203.4 relief because expungement was often an important consideration. (Arata, at p. 782.) This declaration was submitted within a decade of the defendant's successful completion of probation. (Ibid.)
The court in Arata found advisement of the possibility of section 1203.4 relief appeared throughout the plea bargain. (Arata, supra, 151 Cal.App.4th at p. 782.) In addition to its appearance on the probation papers, there was evidence that defendant discussed expungement under section 1203.4 while discussing the plea bargain with his attorney. (Arata, at p. 782.) The court explained the defendant took section 1203.4 relief into consideration, stating "[I]f he pled guilty to one charge, the other would be dismissed and he would be placed on probation. He was told if he successfully completed probation, he would be able to withdraw his plea and have the case dismissed under section 1203.4." (Arata, at p. 782.) The court concluded that denying the defendant section 1203.4 relief, thus precluding expungement of conviction, was a significant variance from the plea agreement and violated due process. (Arata, at p. 788.)
The Attorney General responds that Kirschner failed to show a promise of section 1203.4 relief was a significant factor at the time Kirschner entered his plea bargain. To this end, the Attorney General relies on People v. Acuna (2000) 77 Cal.App.4th 1056 (Acuna). In Acuna, the defendant pled guilty to a violation of section 288, subdivision (a) in 1993, before the amendment to section 1203.4 was enacted. (Acuna, at p. 1058.) Like Kirschner, the defendant in Acuna filed a petition for relief under section 1203.4 and claimed applying the amendment to him violated various constitutional provisions, including due process. (Acuna, at p. 1058.) The court rejected each of the defendant's claims, including his claims that he was denied due process and deprived of the benefit of his plea bargain, because he failed to provide evidence supporting his assertions. (Id. at pp. 1061-1062.)
The Attorney General also relies on Doe v. Harris (2013) 57 Cal.4th 64 (Doe) for his contention that plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good. (Id. at p. 71.) In Doe, the court held that requiring a sex offender to comply with retroactive postconviction amendments to California's Sex Offender Registration Act section 290 et seq. did not violate his plea agreement. (Doe, at p. 73.)
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.)
The court in Doe specifically declined to address Arata, in which "[T]he parties understood that the defendant's decision to plead guilty was motivated by a specific statutory benefit . . . and thus had implicitly agreed the defendant would receive that benefit." (Doe, supra, 57 Cal.4th at p. 73.) The court did not disapprove or overrule Arata. (Doe, at p. 73.) It simply drew a distinction that the particular facts and the circumstances attending the defendant's plea in Arata established that the promise of expungement was a part of the parties' understanding and had provided a significant inducement for the plea. (Doe, at p. 73.)
Kirschner argues the facts and circumstances of his plea bargain show that, like the defendant in Arata, a section 1203.4 promise was implicit in his plea agreement. However, Kirschner's plea bargain is distinct from the defendant's plea bargain in Arata for several reasons.
First, there is no express mention of section 1203.4 relief in Kirschner's plea agreement. Unlike Arata, where section 1203.4 relief was mentioned in the probation papers, there is nothing in Kirschner's change of plea form or the record mentioning section 1203.4 relief. The trial court examined the plea form and stated, "Well, [the plea form] doesn't say anywhere we're going to grant you 1203.4." The trial court also considered the plea transcript, finding no express promise of section 1203.4 relief.
As for any implicit promises of section 1203.4 relief, Kirschner also fails to show his decision to plead guilty was substantially motivated by statutory relief. Kirschner's defense counsel during the 1996 plea bargain submitted a declaration executed in 2019, in support of Kirschner's petition for section 1203.4 relief In the declaration, counsel stated that while it was his practice to inform his clients about such relief, he could not testify about a specific conversation discussing it with Kirschner. Moreover, neither the plea agreement nor the transcript, make any mention of section 1203.4 relief. Whereas counsel's declaration in Arata affirmatively states such relief was contemplated and addressed, counsel's declaration in Kirschner's case lacks such representations.
The terms of the plea bargain in Arata were different from Kirschner's. In Arata, the defendant presented evidence of a unique situation in which he agreed to a particular count in exchange for entitlement to section 1203.4 relief. (Arata, supra, 151 Cal.App.4th at p. 782.) In Kirschner's case, the trial court addressed situations like the defendant's in Arata, where section 1203.4 relief was appropriate based on the facts and circumstances of the plea bargain. However, the court drew a distinction between the evidence the defendant offered in Arata, with the evidence Kirschner offered in support of his section 1203.4 petition. It stated, "Many times in cases we get here, there's an agreement that Count 1 will be dismissed after successful completion [of probation] or something like that. There's nothing of that nature here. So, I don't think there's evidence, at least in front of me, that will support any conclusion that there was a plea bargain to grant the 1203.4." The trial court correctly concluded Kirschner did not provide enough evidence to support his claim that he contemplated section 1203.4 relief at the time of the bargain.
Kirschner's change of plea form contradicts his contention that he was primarily motivated by statutory relief in entering his plea agreement. In it, he acknowledged, "I have not been induced to enter the above plea by any promise or representation of any kind except all other counts will be dismissed. Probation will be granted with up to one year in local custody." Though Kirschner asserts there was an implied promise of relief based on the implicit incorporation of then-existing law into the agreement, there was no mention of this consideration in the plea form or agreement. The court in Doe reasoned, "a plea agreement's reference to a statutory consequence attending a conviction, . . . does not give rise to an implied promise that the defendant, by pleading guilty . . . will be unaffected by a change in the law." (Doe, supra, 57 Cal.4th at p. 73.) Contrary to Kirschner's contention, the court in Doe emphasized that the presence of relief at the time of a plea did not give rise to an assumption that there was an implicit promise of such relief.
We also disagree with Kirschner's contention that he was deprived the benefit of his plea bargain when denied section 1203.4 relief. Like the defendant in Acuna, Kirschner failed to demonstrate expungement was part of the parties' understanding of the bargain or that the agreement was unworkable without it. (Acuna, supra, 77 Cal.App.4th at p. 1062.) There is nothing in the record to show that Kirschner would not have pled guilty had he known he could not obtain expungement. Kirschner faced eleven convictions and a lengthy term in state prison. By pleading to one count of violating section 288, he secured the dismissal of nine other counts under section 288, charging serious sexual misconduct with a young child as well as the dismissal of a charge for failing to register as a sex offender. He accepted a grant of probation with a maximum of 365 days in local custody. Accordingly, by avoiding prison, he substantially benefited from his plea agreement.
On the record before us, Kirschner did not make the evidentiary showing required to demonstrate there was an implicit promise of section 1203.4 relief when entering his plea agreement. (See Acuna, supra, 77 Cal.App.4th at pp. 1061-1062.) Because section 1203.4 relief was not an implicit promise or benefit of his bargain, substantial reliance on the promise was not established. Without reliance on the promise, Kirschner's contention that his due process rights were violated necessarily fails because he was not denied a benefit of his plea bargain.
DISPOSITION
The judgement is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. IRION, J.