Opinion
2d Crim. B325997
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA ZIEMER, Defendant and Appellant.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1493190 Barbara A. Lane, Judge
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P. J.
Cynthia Ziemer appeals an order denying an expungement petition to dismiss her convictions. (Pen. Code, § 1203.4, subd. (a).) We conclude that Ziemer was ineligible for relief, and affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
On November 10, 2020, Ziemer pleaded nolo contendere to six offenses: attempted grand theft, two counts of perjury by declaration, offering false evidence, preparing false documentary evidence, and forgery. (§§ 664, 487, subd. (a), 118, subd. (a), 132, 134, 470, subd. (d).) The criminal offenses concerned Ziemer's elaborate scheme to clear title to her real property and extinguish a $700,000 mortgage debt.
The trial court suspended pronouncement of judgment and granted Ziemer probation for three years with terms and conditions that included service of 365 days in county jail. On January 4, 2023, Ziemer filed a petition for dismissal of her convictions pursuant to section 1203.4, subdivision (a). She declared that she fulfilled the conditions of probation and was discharged in November 2022, prior to the termination of the probation period. She also moved to reduce her felony convictions to misdemeanors pursuant to section 17, subdivision (b).
On January 26, 2023, shortly before noon, the parties appeared at a hearing regarding the petition and motion. The prosecution objected to the dismissal and stated that it did file or planned to file new felony charges against Ziemer that day concerning welfare fraud. The prosecutor stated that the welfare fraud offense occurred during Ziemer's probationary period and the delay in filing a complaint was due to delays during investigation: "And dealing with the State, getting welfare fraud information, is time consuming and lengthy. And so that is the reason for the delay."
The trial court denied the petition without prejudice as well as the motion to reduce the convictions to misdemeanors, also without prejudice. In ruling, the trial judge stated that her ruling did not rest upon whether there were new charges pending against Ziemer, but a lack of evidence that Ziemer "has been exemplary in her conduct and therefore this would merit . . . an expungement." The judge commented that usually a probation officer provided evidence that a probationer had performed well on probation but this was absent here.
Ziemer appeals and contends that she is entitled to section 1203.4, subdivision (a) relief as a matter of law because she successfully completed probation without incurring any violations.
The Attorney General requests that we take judicial notice that on January 26, 2023, the prosecutor filed a felony complaint against Ziemer alleging that she committed perjury by declaration on or about July 1, 2021. On June 21, 2023, Ziemer pleaded guilty to the charged offense, pronouncement of judgment was suspended, and she was granted probation for two years with terms and conditions. We grant the request for judicial notice of the court file documents in Santa Barbara County Case No. 23CR00530. (Evid. Code, § 452, subd. (d); County of San Diego v. State of California (1997) 15 Cal.4th 68, 83, fn. 7.)
Ziemer does not object to the request for judicial notice.
DISCUSSION
Section 1203.4, subdivision (a)(1) provides in relevant part: "When 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, . . . the defendant shall, at any time after the termination of the period of probation, if they are not . . . charged with the commission of an offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; . . . [and] the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted . . . ."
The trial court properly denied Ziemer's petition because the prosecution had charged her with a new offense the same day as the petition hearing. The new offense concerned welfare fraud committed during Ziemer's probationary period for her prior offenses. Ziemer later pleaded guilty to the welfare fraud offense and received a grant of probation for two years.
Although the trial court did not base its ruling upon the filing of a new criminal complaint against Ziemer, we review the court's ruling, not its reasoning. (People v. Brooks (2017) 3 Cal.5th 1, 39 ["[I]f the ruling was correct on any ground, we affirm"].) Thus, the court properly denied Ziemer's section 1203.4, subdivision (a) petition.
DISPOSITION
The order denying the dismissal petition is affirmed.
We concur: BALTODANO, J., CODY, J.