The People v. Parker

Filed 6/24/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION SIX

THE PEOPLE, 2d Crim. No. B243010 (Super. Ct. No. NA070312) Plaintiff and Respondent, (Los Angeles County) v. RICK PARKER, JR., Defendant and Appellant.

Rick Parker, Jr. appeals the denial of his Penal Code section 1203.4 petition to set aside a 2006 conviction for possession or purchase of cocaine base for sale. (Health & Saf. Code, § 11351.5.) The trial court had previously sentenced appellant to state prison for five years but suspended execution of this prison term and granted probation. After appellant successfully completed probation, he filed a petition to set aside the conviction. The trial court ruled that appellant was not eligible for Penal Code section 1203.4 relief because appellant "was given a five- year joint suspended sentence. Under the law, . . . it is deemed that the person went to prison, it is just stayed, . . . The person, by operation of law, technically is in prison." As we shall explain, the trial court's ruling is erroneous, the Attorney General concedes, and we reverse. Relief under Penal Code section 1203,.4 is often referred to as "expungement" of the conviction but that term is not technically correct. (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584.) " ' "A grant of relief under section 1203.4 is intended to reward an individual who successfully completes probation by

mitigating some of the consequences of his conviction. . . ." ' " (Ibid.) "However, such relief ' "does not, properly speaking, ‘expunge' the prior conviction. The statute does not purport to render the conviction a legal nullity." ' "(Ibid.) Penal Code section 1203, subdivision (a) states in pertinent part: "As used in this code, 'probation' means the suspension of the imposition or execution of a sentence. . . ." (Italics added.) Section 1203.4 provides that upon a successful termination of probation, the defendant may petition to set aside the conviction. Section 1203.4, subdivision (a)(1) 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 . . . ." (Italics added.) " 'On application of a defendant who meets the requirements of section 1203.4, the trial court not only can but must proceed in accord with the statute. [Citations.]' " (In re Griffin (1967) 67 Cal.2d 343, 347, fn. 3.) We read Penal Code section 1203, subdivision (a) and section 1203.4 in pari materia, i. e., together. (People v. Clayburgh (2013) 211 Cal.App.4th 86, 91.) This is not only a reasonable reading of the statutes, it comports with the rule of "lenity." (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; People v. Alberts (1995) 32 Cal.App.4th 1424, 1427.) If the Legislature disagrees, it may, of course, enact a provision to the contrary. We express no opinion on whether it should do so.