Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Lloyd Nash, Judge, No. PA025715
Theodore A. Cohen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Julia Kay Mongrain appeals from the order denying her petition to expunge her conviction pursuant to Penal Code sections 17, 1203.4, and 1203.4, subdivision (a). The trial court denied the petition without a statement of reasons. We hold the trial court properly denied the petition due to the absence of the statutorily required proof of service on the District Attorney.
Defendant entered no contest pleas on June 2, 1997, to felony charges of driving with a blood alcohol level in excess of.20 percent causing injury (Veh. Code, § 23153, subd. (b)) and child abuse (Pen. Code, § 273a, subd. (a)). Defendant was placed on formal probation for a period of five years.
On October 23, 2008, defendant filed her petition to expunge the convictions. The petition requested the offenses be reduced to misdemeanors and be dismissed on the basis that she had “fulfilled the conditions of probation for the entire period thereof.” The petition did not contain a proof of service on the District Attorney. The clerk of the trial court issued a notice of hearing, setting the petition for October 23, 2008. The notice indicated defendant need not appear for the hearing on the petition.
The trial court called the matter for hearing on the petition on October 23, 2008. There were no appearances. The court denied the petition.
Defendant argues she was entitled, as a matter of law, to have the petition granted. The Attorney General argues that denial was proper because the petition does not contain the required proof of service upon the District Attorney and defendant’s failure to appear at the hearing also justified the trial court’s ruling.
DISCUSSION
Penal Code section 1203.4 provides in pertinent part as follows: “(a) 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.... [¶]... [¶] (e) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days' notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section. [¶] It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court. (f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.” (Emphasis added.)
As argued by the Attorney General, defendant’s petition did not contain a proof of service on the District Attorney, as is mandated by the express language of Penal Code section 1203.4, subdivision (e). The notice requirement is not a trifling matter, as defendant’s conviction under Vehicle Code section 23153 rendered relief under Penal Code section 1203.4 discretionary pursuant to subdivision (c)(2) of the statute, and the District Attorney should have been served in order to allow for the filing of an opposition. On this basis, we affirm the order denying the petition.
DISPOSITION
The order denying the petition for expungement is affirmed.
We concur: TURNER, P. J., MOSK, J.