Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. No. RIF101975, Elaine M. Johnson, Judge.
James R. Bostwick, Jr., 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, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
In February 2002, pursuant to a plea agreement, defendant and appellant Ann Marie Willatt pled guilty to possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) In return, the remaining allegation was dismissed, and defendant was placed on probation for a period of 36 months on various terms and conditions.
In 2003, the probation department informed the trial court that defendant was in federal custody for attempting to smuggle 30.7 kilograms of marijuana into the United States. In October 2004, defendant admitted to violating her probation by failing to abide by all laws and ordinances. On that same date, defendant’s probation was reinstated on her original terms and conditions with the modification that her probation would be immediately terminated.
Subsequently, in December 2010, defendant moved to set aside her February 2002 plea and dismiss the complaint under the provisions of Penal Code section 1203.4. That motion was denied without prejudice. Defendant’s sole contention on appeal is that the trial court erred in denying her motion to set aside (or expunge) her plea and dismiss the complaint, since her probation had been terminated early.
All future statutory references are to the Penal Code unless otherwise stated.
Because there is insufficient evidence to determine whether defendant was on probation in another matter or that she was charged with a crime in the other case, we will remand the matter to the trial court to conduct a hearing to determine whether the conditions for granting relief under section 1203.4 were satisfied at the time the motion was made.
I
The details of defendant’s criminal conduct are not relevant to the limited issue she raises in this appeal, and we will not recount them here.
Defendant contends that the trial court erred in refusing to set aside or expunge her 2002 conviction pursuant to section 1203.4. She argues that she was entitled to such relief as a matter of right because she was discharged from probation prior to the termination of the probation period, a mandatory basis for that relief.
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... 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....” (Italics added.)
Section 1203.4 mandates relief under that section if the probationer has fulfilled the conditions of his or her probation for the entire period or if he or she has been discharged before the termination of the period of probation (People v. Butler (1980) 105 Cal.App.3d 585, 587; see also People v. Covington (2000) 82 Cal.App.4th 1263, 1270, fn. 4; People v. Johnson (1955) 134 Cal.App.2d 140, 144), the application is made “at any time after the termination of the period of probation, ” the petitioner is not then serving a sentence or on probation for any offense, and the probationer is not charged with the commission of any offense (§ 1203.4, subd. (a)). If defendant establishes either of the necessary factual predicates, the trial court is required to grant the requested relief. (People v. Hawley (1991) 228 Cal.App.3d 247, 249-250, fn. omitted.)
Here, defendant was placed on probation for a period of three years on February 26, 2002. On June 24, 2003, the probation department informed the court that defendant was in federal custody for attempting to smuggle marijuana into the United States. On October 15, 2004, defendant admitted to violating probation by failing to abide by all laws and ordinances. Defendant’s probation was thereafter reinstated and then “[t]erminated [e]arly.” A probation violation does not preclude granting section 1203.4 relief where the probationer is discharged from probation before termination of the probation period (see People v. Hawley, supra, 228 Cal.App.3d at p. 250), even if the discharge occurs after the conclusion of the original probation period but before termination of an extended period. (See People v. Butler, supra, 105 Cal.App.3d at p. 588.)
On December 2, 2010, defendant filed a motion to set aside her guilty plea and dismiss the complaint or expunge her conviction pursuant to section 1203.4. Defendant argued that because her probation was terminated prior to the expiration of the probation period, and she was not serving a sentence or on probation for any new offense and was not charged with the commission of any new offense, she was entitled to set aside her conviction as a matter of right pursuant to section 1203.4. The People did not file opposition but instead “filed a request for dispositional ruling.” The trial court denied defendant’s request without prejudice. The court explained, “I’ve read and considered their motion, and the People have filed a request for dispositional ruling. And in that, [the prosecutor] states that the defendant was in federal prison at one point during her probationary period. And I don’t have any further information from either side, other than that. And I don’t know whether this person is currently on parole somewhere or if that was a long time ago. She certainly had violations of probation. The last one was in 2004. But I don’t know anything else about her. So at this point I would be inclined to deny the motion without prejudice. I would also be inclined to continue it if defense would like to give the Court further information.”
Defendant did not qualify for expungement by fulfilling the conditions of probation during the entire period. She did qualify, however, because probation was terminated prior to the end of the probation period, a separate mandatory ground for granting the relief accorded by section 1203.4. Defendant was placed on three years’ probation on February 26, 2002. The trial court terminated probation on October 15, 2004, before the end of the probationary period. The trial court therefore had no discretion to deny section 1203.4 relief, so long as the other conditions for the operation of that section were met.
We reject the People’s assertion that “the early discharge and termination clause of [section] 1203.4 must be interpreted as applying to a discharge and early termination based on ‘good cause’ or ‘exemplary conduct’ while on probation.” While we agree that section 1203.4 was enacted to reward successful probationers (see People v. Chandler (1988) 203 Cal.App.3d 782, 788-789), we cannot find, and the People have not cited to, any case law requiring a “good cause” requirement for denying or granting relief under section 1203.4. Although the People speculate that defendant’s probation was terminated early because she was facing a new federal drug charge, the record simply is unclear as to why defendant was discharged from probation early.
Furthermore, the court in Butler aptly explained: “The People contend the obvious purpose behind section 1203.4 is to reward those who have been rehabilitated [citation]. More accurately, though, the section rewards those who comply with their terms of probation or are relieved from complying. No evidence of rehabilitation is required to be entitled to relief. Likewise, evidence of crimes committed shortly after probation ends, which would seem to conclusively prove no rehabilitation had taken place, have no effect on the granting of the relief [citations].” (People v. Butler, supra, 105 Cal.App.3d at p. 588.) The Butler court further noted, “The People cannot now, in effect, collaterally attack the propriety of the judge’s decision to terminate early. Once probation is terminated early, a later judge who is requested to grant relief under section 1203.4 is without discretion to deny relief.” (Id. at p. 589.)
The trial court here based its refusal to expunge defendant’s 2002 conviction or grant section 1203.4 relief on the fact that it did not have sufficient information to make an informed decision. As a result, it was unable to make findings on whether other conditions for obtaining section 1203.4 relief were satisfied. We are also unable to ascertain from this record whether the other provisions of section 1203.4 were satisfied. The record contains no probation report or any other information regarding defendant’s probation violation, or whether defendant was charged with another offense.
We therefore remand this matter to the trial court to determine whether defendant was on probation for any other offense at the time the request was made and whether she had been charged with another offense. If the conditions set forth in section 1203.4 were met, then the relief under section 1203.4 must be granted to defendant.
II
DISPOSITION
The order appealed from is reversed and the matter remanded with directions to the trial court to conduct a hearing to determine whether the conditions for granting relief under section 1203.4 were satisfied at the time the application was made.
We concur: HOLLENHORST Acting P.J., CODRINGTON J.