In 2010, defendant was charged by a complaint with three offenses: felony
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), felony sale or
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and
misdemeanor driving while his license was suspended for driving under the influence of
drugs or alcohol (Veh. Code, § 14601.2, subd. (a)). Soon after being charged, defendant
agreed to change his plea, and to plead guilty, in exchange for probation and admission to
a drug court program.1 The court granted supervised drug program probation for 36
months and imposed various fines and fees, including payment of a restitution fine of
$200, pursuant to Penal Code section 1202.4, subdivision (b). The payment of the
restitution fine was made a condition of defendant‘s probation.
From the outset, defendant progressed well and was promoted to the successive
phases of the program in due course. He was consistently rated as cooperative with the
1 Approved by the voters on November 7, 2000, Proposition 36, the ―Substance Abuse and Crime Prevention Act of 2000,‖ was codified in Penal Code sections 1210, 1210.2, and 3063.1 and division 10.8 (§ 11999.4 et seq.) of the Health and Safety Code. It provides for diversion to drug and alcohol treatment programs for offenders whose criminal offenses derive from abuse of alcohol or drugs.
2
ROC staff and peers, and enthusiastic in his participation in the program. He successfully
completed family reunification and obtained employment. In January 2011, he
celebrated a one-year anniversary of sobriety. In March 2011, he transitioned to the
aftercare phase of the program. Throughout the approximately 20 months in the
program, defendant was drug-tested 90 times, without a positive result. On September
14, 2011, after approximately six months in the aftercare phase of treatment, defendant
graduated from the ROC program and the drug court terminated his probation early. The
minutes recite that the court ordered ―all fines suspended,‖ and granted the defense
motion under Penal Code section 1203.4, setting aside defendant‘s guilty pleas, and
entering a plea of not guilty. The court thereupon dismissed the case.
At the hearing, defense counsel stated, ―I make a motion to stay and suspend all
fines and fees and dismiss the case pursuant to 1203 and the ROC contract.‖ The
prosecutor, however, stated, ―Same objection as to the fines.‖ The court implicitly
overruled the People‘s objection and granted the defense motion ―to set aside your plea,
dismiss the charges, and terminate probation and suspend all fines and fees.‖
The People filed a notice of appeal from the ruling suspending all fines and fees.
ANALYSIS
I. Standard of Review
The issue presented is whether the trial court had the authority or discretion to
suspend, dismiss, or otherwise do away with or terminate the restitution fine in
defendant‘s case. The issue turns on the interpretation of the relevant statutory provisions
and, thus, presents essentially an issue of law, which we review de novo: ―[W]hen the
3
propriety of a restitution order turns on the interpretation of a statute, a question of law is
raised, which is subject to de novo review on appeal.‖ (People v. Williams (2010) 184
Cal.App.4th 142, 146; see also In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.)
Questions of law are reviewed de novo. (In re Tobacco II Cases (2009) 46 Cal.4th 298,
311.) ―Questions of statutory interpretation are, of course, pure matters of law upon
which we may exercise our independent judgment.‖ (Jones v. Pierce (1988) 199
Cal.App.3d 736, 741.) Accordingly, the standard of review is de novo.
II. The Trial Court Could Properly Suspend or Dismiss the Restitution Fines in the
Context of Drug Court Early Termination of Probation
A. Background of the Law Concerning Victim Restitution and Restitution Fines
1. Legislative History: Victims’ Bill of Rights
In June 1982, the electorate passed Proposition 8, known as The Victims‘ Bill of
Rights. Among other things, Proposition 8 declared a state constitutional right of crime
victims to restitution from those persons convicted of crimes, which crimes caused losses
to the victims. (Cal. Const., art. I, § 28, subd. (b), par. (13)(A).) In response to the new
constitutional provisions, the Legislature amended some old statutes and enacted new
ones to implement the right to restitution. (See People v. Giordano (2007) 42 Cal.4th
644, 652.)
The statutes recognize two kinds of restitution: (1) restitution fines (Pen. Code,
§ 1202.4, subd. (b)), which are not directly related to the amount of loss sustained by a
victim, and (2) direct restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is
based on the amount of the loss the victim actually sustained. The purposes of the two
4
kinds of restitution are different. The imposition of a restitution fine is punishment. (See
People v. Kunitz (2004) 122 Cal.App.4th 652, 656.) The purpose of direct victim
restitution, however, is to reimburse the victim for economic losses caused by the
defendant‘s criminal conduct, i.e., to make the victim reasonably whole. (People v.
Taylor (2011) 197 Cal.App.4th 757, 763; cf. People v. Phu (2009) 179 Cal.App.4th 280,
283.) Secondary goals of direct restitution include rehabilitation of the defendant and
deterrence of future criminality. (People v. Jennings (2005) 128 Cal.App.4th 42, 57.)
There was no direct victim restitution ordered in this case. Rather, defendant was
ordered to pay only a restitution fine, i.e., punishment. Restitution fines are not paid
directly to the victims of crime. Rather, they are payable to the state. Restitution fines
are deposited to the Restitution Fund. (Pen. Code, § 1202.4, subd. (e).) The Restitution
Fund is in the State Treasury department, and is used to compensate victims for certain
kinds of ―pecuniary losses they suffer as a direct result of criminal acts.‖ (Gov. Code,
§ 13950, subd. (a).)
Penal Code section 1202.4, subdivision (f)(11), provides that, ―If a defendant has
any remaining unpaid balance on a restitution order or fine 120 days prior to his or her
scheduled release from probation or 120 days prior to his or her completion of a
conditional sentence, the defendant shall prepare and file a new and updated financial
disclosure . . .‖ to facilitate future enforcement of the remainder of the unpaid restitution
―There is nothing in the current statutory scheme to suggest any change in the
Legislature‘s intent to have a restitution fine survive the revocation of probation. Indeed,
the statutory scheme suggests otherwise. Restitution fines are required in all cases in
which a conviction is obtained. Furthermore, there is no provision for imposing a
restitution fine after revocation of probation. The triggering event for imposition of the
restitution fine is still conviction. (Pen. Code, § 1202.4, subd. (b).)‖ (Id. at p. 822.)
People v. Arata (2004) 118 Cal.App.4th 195, was another decision of the Third
District Court of Appeal, which reiterated the principles set forth in Chambers. Arata
paralleled the events in Chambers: the defendant was admitted to probation in November
1999, at which time the trial court imposed a $600 restitution fine pursuant to Penal Code
section 1202.4. (Arata, at p. 197.) The defendant thereafter violated his probation on
several occasions and was reinstated on probation with modifications to the sentence or
probation terms. Ultimately, the trial court revoked the defendant‘s probation and
sentenced him to state prison for four years, lifting the stay of execution on the sentence.
In addition, at the time the court sentenced the defendant to state prison, it ordered the
defendant to pay a restitution fine of $800. (Id. at p. 201.) The defendant in Arata, like
the defendant in Chambers, argued that the trial court erred in imposing a second
restitution fine at the time of the state prison sentence, because it had already imposed a
restitution fine at the time the defendant was granted probation. The Arata court stated,
―Despite the fact that the restitution fine is imposed as a condition of probation, however,
it survives the probationary term‖ (ibid.), citing its earlier decision in Chambers. (People
v. Chambers, supra, 65 Cal.App.4th 819, 822.) ―[B]ecause the first restitution fine
8
remained in effect, the trial court was without authority to impose the second restitution
fine.‖ (Arata, at p. 202.) Following Chambers, the court struck the second $800
restitution fine and left in force the $600 restitution fine originally imposed at the time of
granting probation. If the defendant had paid the $600 restitution fine, he was entitled to
credit for having paid it. If he had not paid the $600 restitution fine, then his obligation
to pay continued during and, if necessary, after his prison term. (Id. at p. 203.)
Additional cases apply the same principles in similar contexts. In People v.
Kleinman (2004) 123 Cal.App.4th 1476, the defendant struck a pedestrian with his car
and fled the scene. In 1998, he pleaded no contest to a charge of hit and run, causing
injury. The trial court granted probation, and imposed a restitution fine as a condition of
probation, although it left the amount of the restitution fine open to future setting to allow
the victim time to gather information on the amount of his medical costs and lost wages.
In 2001, the trial court revoked the defendant‘s probation and issued a bench warrant. In
2003, the defendant waived his right to a probation violation hearing and admitted the
violation of probation. The trial court sentenced the defendant to state prison for two
years and ordered direct victim restitution in the amount of $9,000. On appeal, the
defendant urged that the restitution order was no longer authorized at the time he was
sentenced to state prison, on the view that ―the gravamen of the hit and run offense is
fleeing the scene, which did not cause [the victim‘s] injuries. The noncriminal accident
did.‖ (Id. at p. 1479.) The appellate court rejected the contention as without merit. In
People v. Carbajal (1995) 10 Cal.4th 1114, the California Supreme Court had settled the
question that victim restitution is properly imposed as a condition of probation for a hit
9
and run offense causing damage. A defendant may be ordered to pay restitution for the
damage as a condition of probation. The Kleinman court declined to resolve the issue
whether an order for restitution is proper for a hit and run conviction when the defendant
is sentenced to state prison, because (1) the restitution condition had been properly
imposed as a condition of the defendant‘s probation (as in Carbajal), and (2) the
restitution originally imposed as a condition of probation survived the revocation of the
defendant‘s probation (as in Chambers and Arata), notwithstanding that the specific
amount of restitution had not been initially set at the time probation was granted.
In People v. Urke (2011) 197 Cal.App.4th 766, a more recent case, the appellate
court again had occasion to hold that, when a defendant‘s probation is revoked, the
mandatory restitution fine imposed as a condition of probation survives the revocation of
probation, so that it is improper and beyond the trial court‘s authority to impose another
restitution fine upon sentencing the defendant to state prison. (Id. at p. 779.)
In People v. Cropsey (2010) 184 Cal.App.4th 961, the trial court purported to
―reimpose‖ a $200 restitution fine when it revoked and reinstated probation. The
appellate court held that the trial court had not erred, because it had not imposed a second
restitution fine; rather, it had effectively confirmed the same restitution fine originally
imposed. The Cropsey court noted that the language purporting to ―reimpose‖ a
restitution fine was inconsistent with the principle of Chambers and Arata, that the
restitution fine originally imposed survives the revocation of probation, and continues in
effect. ―Simply stated, there is no need to reimpose an extant restitution fine.‖ (Id. at
p. 966.) ―Where a restitution fine(s) has been previously imposed, the trial court should
10
simply say, ‗The abstract of judgment should reflect the restitution fine(s) previously
imposed.‘‖ (Ibid.)
All these cases highlight the general principles that (1) imposition of restitution
orders (victim restitution and a restitution fine) is mandatory, (2) when a defendant is
granted probation, any such mandatory restitution fine must be made a condition of
probation, and (3) the mandatory restitution fine continues in force even if a defendant‘s
probation is revoked.
b. A Restitution Fine Survives the Termination of Probation When a Probationer
Completes the Probationary Term
All of the cited cases concern the survival of the restitution fine when probation is
revoked, and the defendant is sentenced to state prison. None has applied the stated
principles in a context where the probationary term has been successfully served
(expired) without revocation.
Defendant argues that the principle articulated in the cited cases – i.e., that the
restitution fine survives a revocation of probation – is not applicable to the question
whether the trial court has the authority to suspend the payment of the restitution fine
upon the termination of a successful term of probation. The District Attorney contends,
on the other hand, that the survival of the restitution fine upon the unsuccessful
termination of probation should apply equally in cases where a defendant completes
probation successfully: ―[I]t is a logical corollary [to the survivability of the restitution
fine on the revocation of probation] that a trial court does not have authority to suspend
any unpaid balance of the restitution fine upon a defendant‘s successful completion of
11
probation. Otherwise, the ‗survivability‘ of the restitution fine after probation would be
negated. . . . [¶] Defendant is correct that procedural circumstances in each of the four
cases cited by the People are not identical to the procedural circumstances in the instant
case. However, that observation does not detract from the proposition that a restitution
fine survives the probationary term.‖
We agree with the People‘s contention that, in principle, a mandatory restitution
fine will survive after the end of a period of probation, regardless of whether the
probation was terminated negatively (e.g., revocation) or positively (successfully
completed). Even though the cited cases all concerned revocation of probation, we
discern in Chambers and Arata the legislative basis for the survivability of the restitution
fine: i.e., the conviction itself.
As the court made clear in Chambers, imposition of a restitution fine is
mandatory, whether or not the defendant is granted probation. The imposition of a
restitution fine is required unless compelling and extraordinary reasons are found to
overcome the requirement. Restitution to a victim remaining unpaid at the end of a
probationary period is enforceable against the defendant as if it were a civil judgment.
Penal Code section 1202.4, subdivision (f)(11), expressly provides that a probationer
approaching the expiration of the probationary period (120 days) must file an updated
financial disclosure statement, in direct contemplation of the continuing obligation to
pay, even after probation has ended. All these factors show the legislative intent to have
the restitution fine survive the probationary period, not merely to survive a revocation of
12
probation. ―The triggering event for imposition of the restitution fine is still conviction.‖
(People v. Chambers, supra, 65 Cal.App.4th at p. 822, italics added.)
Arata similarly articulates that, ―when a person is convicted of a felony, a
restitution fine must be imposed, irrespective of whether probation is granted.‖ (People
v. Arata, supra, 118 Cal.App.4th at p. 201, italics added.) Thus, both probationers and
defendants who are not granted probation are subject to mandatory imposition of a
restitution fine. The difference is that the restitution fine must also be made a condition
of probation for any defendant admitted to probation. The mandatory orders for
restitution are made part of the conditions of probation because ―[f]ailure to do so would
lead to successful probationers avoiding the mandatory nature of subdivision (b).‖ (Id. at
p. 203.)
Under the statutes, the defendant is responsible to pay whatever portion of the
restitution fine remains unpaid, even after completion of probation or prison sentence.
As the Arata court noted, ―a restitution fine imposed as a condition of probation survives
a subsequent revocation and state prison commitment. [Citation.] Defendant is either
entitled to credit for its payment or is responsible for paying it during and, if necessary,
after his prison sentence.‖ (People v. Arata, supra, 118 Cal.App.4th at p. 203, italics
added.)
A criminal conviction is therefore clearly demarcated as the event that brings into
existence the mandate to impose a restitution fine. It is also the basis upon which the
mandated restitution order remains in force following a period of probation and after a
prison sentence has been completed.
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B. General Principles Applicable to Dismissal of a Charge Under Penal Code
Section 1203.4
Penal Code section 1203.4 provides in part: ―(a)(1) 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 . . . 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, except as provided in Section 13555 of the Vehicle Code. The probationer
shall be informed, in his or her probation papers, of this right and privilege and his or her
right, if any, to petition for a certificate of rehabilitation and pardon. . . . However, in
any subsequent prosecution of the defendant for any other offense, the prior conviction
may be pleaded and proved and shall have the same effect as if probation had not been
granted or the accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or her of the obligation
to disclose the conviction in response to any direct question contained in any
questionnaire or application for public office, for licensure by any state or local agency,
or for contracting with the California State Lottery Commission. [¶] (2) Dismissal of an
14
accusation or information pursuant to this section does not permit a person to own,
possess, or have in his or her custody or control any firearm or prevent his or her
conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6. [¶] (3) Dismissal of an accusation or information underlying a conviction
pursuant to this section does not permit a person prohibited from holding public office as
a result of that conviction to hold public office. . . .‖
1. Three Scenarios for Relief Under Penal Code Section 1203.4
There are three circumstances in which a defendant may apply for relief under
Penal Code section 1203.4: if, ―(a) he has fulfilled the conditions of his probation for the
entire period; (b) he has been discharged before the termination of the period of
probation; or (c) in any case in which a court, in its discretion and the interests of justice,
determines he should be granted relief.‖ (People v. Butler (1980) 105 Cal.App.3d 585,
587.)
Under either of the first two scenarios, the defendant is entitled as a matter of right
to the dismissal of the charge. (See People v. Chandler (1988) 203 Cal.App.3d 782, 788
[―a defendant moving under Penal Code section 1203.4 is entitled as a matter of right to
its benefits upon a showing that he ‗has fulfilled the conditions of probation for the entire
period of probation.‘ It was apparently intended that when a defendant has satisfied the
terms of probation, the trial court should have no discretion but to carry out its part of the
bargain with the defendant‖]; People v. Butler, supra, 105 Cal.App.3d at p. 589 [―Once
probation is terminated early, a later judge who is requested to grant relief under section
1203.4 is without discretion to deny relief‖].) Under the third scenario, the court
15
exercises its discretion whether to grant relief in the interests of justice. (People v.
McLernon (2009) 174 Cal.App.4th 569, 574 [―The last [scenario] requires the court to
determine whether, in its discretion and the interests of justice, the relief should be
granted‖]; People v. Butler, supra, 105 Cal.App.3d at p. 587 [―A grant of relief in the
third situation is clearly discretionary‖].)
a. First Scenario: Fulfillment of Conditions of Probation for the Entire
Probationary Period
Qualification for relief under the first scenario—fulfilling the conditions of
probation during the entire probationary period—requires exactly that: fulfillment of all
the conditions of probation throughout the entire period of probation. Any violation of
any of the probationary terms will disqualify a probationer from seeking dismissal under
the first scenario.
In People v. Chandler, supra, 203 Cal.App.3d 782, for example, the Court of
Appeal held that a probationer who had not fully paid all of the court-ordered restitution
by the end of his probationary period had ―not met the statutory requirement of fulfilling
‗the conditions of his probation for the entire period thereof.‘ ‖ (Id. at p. 789) The trial
court could therefore properly deny a motion for dismissal of the charge under the first
scenario.
Similarly, in People v. McLernon, supra, 174 Cal.App.4th 569, a single positive
drug test during the probationary period disqualified the defendant there from mandatory
relief under the first scenario. (Id. at pp. 574-575.)
16
People v. Butler, supra, 105 Cal.App.3d 585, an earlier case than Chandler,
likewise held that the failure to pay the full amount of restitution disqualified the
defendant from relief under the first scenario: ―Butler does not contend he fulfilled all
the conditions of his probation. One of the conditions required him to pay $2,500 in
restitution to the victim of his grand theft within four years. Within that four-year period
he paid only $530.‖ (Id. at p. 587.) However, the failure to pay restitution in full was no
impediment to mandatory relief under scenario two.
b. Second Scenario: Termination of Probation and Discharge Before the Period
of Probation Has Expired
The second scenario, which also qualifies the probationer for mandatory dismissal
of the charge, requires a termination of probation and discharge before the probationary
period has expired.
The defendant in Butler recognized that he did not qualify for relief under the first
scenario, because he had not completely paid all the ordered restitution. ―Rather, he
contends he is entitled to relief for having been discharged from his probation early.‖
(People v. Butler, supra, 105 Cal.App.3d at p. 587.) There, near the end of the
defendant‘s original probationary period, the trial court had modified his probation by
extending it an additional six months, and by adding a new condition: The defendant was
required to be medically examined to determine whether he was totally disabled. The
defendant underwent the examination, and the medical report did state that he was totally
disabled. The court terminated the defendant‘s probation, ending it three months before
the extended termination date. It was immaterial that the termination did not come prior
17
to the expiration of the original termination date; the original termination date ―no longer
exist[ed]‖ (id. at p. 588) after the trial court extended the probationary period. The
authority to terminate probation early ―is found in section 1203.3. It allows a court to
terminate probation at any time ‗when the ends of justice will be subserved thereby, and
when the good conduct and reform of the person so held on probation shall warrant it
. . . .‘ The order terminating probation states ‗good cause exists to terminate probation.‘
The judge believed Butler should be relieved from the restrictions of his probation. This
decision is final. 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. The
relief requested should have been granted in this case.‖ (Id. at p. 589.) The defendant
was therefore entitled to have his conviction dismissed under the second scenario.
People v. Hawley (1991) 228 Cal.App.3d 247 followed Butler. In Hawley, the
defendant had been placed on probation and had some early problems complying with all
the terms. He was arrested for burglary but the victim declined to prosecute, and he was
also charged with driving under the influence, though that charge was later dismissed for
lack of evidence. After these early lapses, however, the defendant performed well on
probation and received favorable reports. The defendant remained arrest-free, paid his
restitution fine in full, and completed therapy. The trial court terminated the defendant‘s
probation early, and the defendant applied for ― ‗release from penalties and dismissal‘
under section 1203.4. The court denied the petition on the sole ground that the ‗nature of
the offense [nonforcible sodomy of a person under age 18] is just too serious.‘‖ (Id. at
18
p. 249.) The appellate court reversed, holding that the defendant was entitled to relief as
a matter of right if he met the conditions prescribed in the statute. The defendant did not
purport to apply under the first scenario, as he had not been able to show complete
compliance with all terms of probation throughout the entire term. He did show,
however, that probation had been terminated early. He was therefore entitled to have the
plea changed to not guilty and the charge dismissed, regardless of the seriousness of the
charge.2 (Id. at p. 250, fn. 4. [―the seriousness of the original offense was wholly
irrelevant‖].)
In Chandler, just as the defendant did not qualify for relief under the first scenario,
he also did not qualify under the second scenario, because he had not been discharged
prior to the termination of probation. Instead, one day before his probation was set to
expire, the trial court revoked probation to retain jurisdiction; it then set a hearing on
violation of probation two months later. At the revocation hearing, the trial court
reinstated, and then terminated the defendant‘s probation. (People v. Chandler, supra,
203 Cal.App.3d at p. 790.) The defendant‘s probation was thus terminated in effect by
expiration on the last day, and he did not meet the statutory criterion of having been
―discharged prior to the termination of the period of probation.‖ (Pen. Code, § 1203.4,
subd. (a), italics added.)
2Some offenses are expressly excluded from relief under Penal Code section 1203.4. Among these is an offense under Penal Code section 286, subdivision (c) (sodomy of a person under age 14 by a person at least 10 years older, or forcible sodomy). The offense in Hawley was under Penal Code section 286, subdivision (b).
19
―Like defendant [i.e., Chandler] in the case before us, the probationer in Butler
failed to pay a substantial portion of the court-ordered restitution. But unlike defendant
here, the defendant in Butler never contended he had fully complied with the terms of
probation. Instead, the latter claimed that because the trial court had terminated
probation three months before its expiration, he was entitled to a dismissal under Penal
Code section 1203.4. The reviewing court agreed, holding that once probation is
terminated early, a trial court has no discretion to deny relief under section 1203.4.
[Citation.] In so holding, the Butler court followed the statutory mandate to grant relief
in any case in which a defendant ‗has been discharged prior to the termination of
probation.‘ That situation is not present here, where the trial court terminated probation
at the end of the probationary period and at no time excused defendant from complying
with the conditions of probation prior to the termination of probation.‖ (People v.
Chandler, supra, 203 Cal.App.3d at p. 790, italics added.)
c. Third Scenario: Discretionary Relief in the Interests of Justice
In People v. McLernon, supra, 174 Cal.App.4th 569, the defendant had been
convicted of possession of a controlled substance for sale. He was placed on probation.
In 1995, he had one violation of probation when he tested positive in one of his drug
tests. After that, however, he remained clean and sober, and he paid all fines and costs
ordered by the court. In 2001, he filed his first motion to dismiss the conviction under
Penal Code section 1203.4. The court denied the motion in a minute order, which did not
recite the reason for denial. The defendant moved a second time for relief in 2007. This
time, he filed with a Judicial Council form, but it was incomplete in various respects
20
(e.g., no proof of service, omitted date of conviction, the statement of assets was not
signed or dated). The trial court again denied relief; this time the minute order recited,
― ‗Defendant‘s petition for expungement is denied. [¶] Petition was previously
submitted and denied on March 6, 2001 due to unsatisfactory performance on
probation.‘‖ (Id. at p. 573.) The defendant later submitted a third petition for relief; for
the first time, the petition identified the discretionary ―interests of justice‖ ground as the
basis for his request to dismiss his conviction. The third motion attached the defendant‘s
declaration, to the effect that he had only suffered the one conviction, he was not
currently facing charges or serving any sentence, he had paid all fines and costs, he had
tested positive during one drug test in 1995, but he had completed a 90-day treatment
program and had remained drug-free since that time. He also averred the positive steps
he had taken in his employment and personal circumstances (professional employment as
an architect, he was married with four children). He wanted to be able to join
professional associations, to serve as a volunteer at a local high school, and participate in
elective office; these were the reasons he sought relief from the conviction. The trial
court summarily rejected the third petition, stating that it had previously been presented
and denied in 2001 and 2007. (Id. at pp. 573-574.)
The appellate court reversed and remanded with directions that the court consider
the merits of the defendant‘s petition for discretionary relief. The denials of the first two
petitions were assertedly for the defendant‘s unsatisfactory performance on probation.
That ―unsatisfactory‖ performance on probation consisted, so far as the record showed,
solely of the single positive drug test during the probationary period. That positive test
21
did effectively preclude the defendant from showing that he qualified under the first
scenario—having successfully complied with all the terms of probation for the entire
probationary period. He was also disqualified from relief under the second scenario, as
his probation had not been terminated early. However, he was eligible to apply for
discretionary relief. The trial court had patently failed to consider the matter as one of
discretion and, thus, the case was ordered remanded with directions to reconsider the
motion on the discretionary ground. The appellate court held that a court considering a
discretionary motion was not limited to consideration solely of a defendant‘s conduct
during the probationary period. ―The statute simply states that relief is available in the
court‘s discretion in the interests of justice.‖ (People v. McLernon, supra, 174
Cal.App.4th at p. 575.) The court held that, ―[I]n determining whether to grant relief
under the discretionary provision, the trial court may consider any relevant information,
including the defendant‘s postprobation conduct.‖ (Id. at p. 577.) Indeed, the
amendment that had added the third scenario, under which a probationer could apply for
discretionary relief under Penal Code section 1203.4, was enacted in response to a similar
case of postconviction rehabilitation: ―[T]he amendment was requested by the attorney
for a defendant who, after a probation violation, completed his probation with no further
violations, raised his child alone, and then went to college, worked without pay for the
State Parole Board, and was trying to become a social worker. Although the trial court in
his case expressed a desire to grant relief under section 1203.4, it concluded it could not
do so because of the defendant‘s parole [sic: probation] violation. The amendment to
22
section 1203.4 was designed to give courts the ability to grant relief in these
circumstances.‖ (Id. at pp. 576-577.)
2. Effects or Consequences of Granting Relief Under Penal Code Section 1203.4
The ―release[] from penalties and disabilities‖ provided in Penal Code section
1203.4 is sometimes referred to as ―expungement‖ of the conviction. The People
correctly point out, however, that Penal Code section 1203.4 does not, strictly speaking,
―expunge‖ the conviction, nor render the conviction ―a legal nullity.‖ (See People v.
Frawley (2000) 82 Cal.App.4th 784, 791.) For example, charges dismissed under Penal
Code section 1203.4 may be treated as convictions for some purposes (e.g., impeachment
with prior conviction in a future prosecution). However, the ―release[] from penalties
and disabilities‖ is a palpable benefit, such that the conviction may be treated as if it were
not a conviction for most purposes.
Penal Code section 1203.4, subdivision (a), provides that probationers who meet
the requisite criteria shall have the charge dismissed, ―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.) The specific
exceptions are contained within Penal Code section 1203.4, as follows: A defendant is
released from penalties and disabilities, ―except as provided in Section 13555 of the
Vehicle Code. . . . [In addition], in any subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and proved and shall have the same
effect as if probation had not been granted or the accusation or information dismissed.
The order [of dismissal] shall state, and the probationer shall be informed, that the order
23
does not relieve him or her of the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application for public office, for
licensure by any state or local agency, or for contracting with the California State Lottery
Commission. [¶] (2) Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her custody or control any
firearm or prevent his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6. [¶] (3) Dismissal of an accusation or
information underlying a conviction pursuant to this section does not permit a person
prohibited from holding public office as a result of that conviction to hold public office.‖
(Pen. Code, § 1203.4, subd. (a).)
Penal Code section 290.007 also specifically excepts the sex registration
requirement (Pen. Code, § 290) from relief under Penal Code section 1203.4.
― ‗California decisions have established that the ―penalties and disabilities‖ resulting
from conviction, from which a probationer may be released pursuant to . . . section
1203.4, do not include nonpenal restrictions or qualifications imposed for public
protection, such as licensing of attorneys [citation], physicians [citation], and vendors of
alcoholic beverages [citation]; qualification for employment as a peace officer [citation];
and the regulation of participants in parimutuel wagering [citation].‘ [Citations.]‖ (Doe
v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1114.) ―Further, United
States Supreme Court precedent establishes that a retroactive measure requiring the
disclosure of sex offender information on a Megan‘s Law Web site such as that required
under California law is protective rather than punitive, and imposes no affirmative
24
disability on the offender.‖ (Ibid.) In addition, unlike the matter of fines and fees,
mandatory lifetime sex registration is not a permissible subject of plea agreement
negotiation. (In re Watford (2010) 186 Cal.App.4th 684, 690.)
All of these exceptions to relief under Penal Code section 1203.4 are either
express exceptions, or have been determined to fall outside the category of criminal
penalties and disabilities. As to other consequences, however, a defendant who is granted
relief under Penal Code section 1203.4 is entitled to treat the dismissal of the charges, for
most purposes, as an obviation of the conviction.
In People v. Arata (2007) 151 Cal.App.4th 778,3 the defendant appealed from
denial of his motion under Penal Code section 1203.4 to allow him to withdraw his plea
and have the charge dismissed. The issue was whether relief under Penal Code section
1203.4 was a part of the plea bargain agreement the defendant had made, and whether
denial of relief would be a significant variation from the terms defendant had agreed to in
his plea bargain. The appellate court ruled in the defendant‘s favor, remarking that, even
though the relief from disabilities was not complete (e.g., dismissal under Pen. Code,
§ 1203.4 would still require registration as a sex offender, allow impeachment with the
dismissed charge in a future trial, disqualify the defendant from firearm possession, and
require disclosure of the former conviction to state or local licensing agencies), it
nevertheless conferred a significant benefit to the defendant. ―While the ‗[r]emoval of
3 People v. Arata, supra, 118 Cal.App.4th 195, decided by the Third District Court of Appeal in 2004, involves a different person (Joseph Peter Arata) from People v. Arata, supra, 151 Cal.App.4th 778 (David Louis Arata), decided in 2007, also by the Third District Court of Appeal.
25
the blemish of a criminal record‘ [citation] is not complete, it is still a ‗reward.‘
[Citation.] At the time of the plea it would have enabled defendant to file a petition for a
certificate of rehabilitation at the earliest possible time. (§ 4852.01, subd. (c).) It would
also have enabled defendant to ‗truthfully represent to friends, acquaintances and private
sector employers that he has no conviction.‘ (People v. Acuna [(2000)] 77 Cal.App.4th
[1056] 1060.)‖ (People v. Arata, supra, 151 Cal.App.4th 778, 788.)
This dictum in Arata may overstate the case somewhat, but the relief from
penalties and disabilities for most purposes places a defendant who has had a conviction
dismissed under Penal Code section 1203.4 on a different footing from other convicted
persons. For one thing, it is offered only to those defendants who are admitted to
probation. (See People v. Mendez (1991) 234 Cal.App.3d 1773, 1780 [―Section 1203.4
applies only to that category of persons who have been admitted to probation and not
committed to prison, CYA, or other state institutions‖].) Among those admitted to
probation, the defendants entitled to relief are further limited to those probationers who
succeed in one of the three specific ways identified ante (completion of all terms
throughout the period of probation, early termination and discharge, relief would be in
the best interests of justice).
― ‗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 and, with a few exceptions, to restore him to his former status in society to the
extent the Legislature has power to do so [citations].‘ [Citation.]‖ (People v. Field
of course, that through this act of clemency, the probationer may become reinstated as a
law-abiding member of society. Removal of the blemish of a criminal record is the
reward held out through the provisions of Penal Code, section 1203.4, as an additional
inducement. The obvious purpose is to secure law compliance through an attempt at
helpful cooperation rather than by coercion or punishment.‖ (People v. Johnson (1955)
134 Cal.App.2d 140, 143.)
In the instant case, the principles applicable to restitution fines, and their
persistence after the defendant is no longer on probation, intersect with the principles
applicable to Penal Code section 1203.4, and the release from penalties and disabilities
relating to a conviction. We now discuss the interplay of these two lines of analysis as
they converge in defendant‘s case.
C. The Suspension or Dismissal of the Unpaid Portion of the Restitution Fines
Was Proper
We conclude that the trial court in this case did have the authority to suspend,
dismiss, or otherwise eliminate the enforcement of the remaining unpaid portion of the
restitution fines. There are three potential theories that could support the dismissal of
unpaid portions of a restitution fine in a given case.
First, relief from payment of the restitution fine might be a material term of the
plea bargain. If relief from payment of the restitution fine is a material term of a
defendant‘s plea bargain, then the promise of relief should be honored. This theory is not
explicitly applicable in this case. Where a stay of payment of the restitution fine has been
made part of the terms and conditions of a defendant‘s probation, there could be at least
27
the implicit promise that such stay would become permanent upon successful completion
of probation. Here, the court did not stay payment of the restitution fine on defendant‘s
entry into the plea and probation. Relief from payment of the restitution fine was not an
express or implied term of defendant‘s plea bargain in this case.
Second, even the statute providing that a restitution fine is expressly mandated,
Penal Code section 1202.4, subdivision (c), contains an exception to imposition of the
mandatory fine: ―The court shall impose the restitution fine unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the record.‖
Financial inability to pay is not a proper ―compelling and extraordinary reason‖ for not
imposing a restitution fine. (Pen. Code, § 1202.4, subd. (c).) In this case, however, this
exception is unavailable, because the trial court did not purport to find a compelling or
extraordinary reason for not imposing the restitution fine. It did not suspend imposition
of the fine on the basis of Penal Code section 1202.4, subdivision (c).
The third theory for dismissal, suspension, or elimination of the restitution fine is
that the release from penalties and disabilities of the conviction includes release from
imposition of a restitution fine. The restitution fine, which is triggered by and founded
upon a conviction of a criminal offense, is a ―penalty or disability‖ arising from the
conviction of the offense. When relief under Penal Code section 1203.4 is granted, the
court allows the verdict or plea to be withdrawn, and the charge is then dismissed. This
places the probationer who qualifies for relief under 1203.4 on a different footing from
other probationers whose probation is terminated either by revocation or by completion
of the probationary term. In both of these other circumstances, in which the restitution
28
fine survives, the conviction and charge also remain intact for all purposes. By contrast,
when relief is granted under Penal Code section 1203.4, the charge itself is dismissed;
this dismissal of the charge is intended, to the extent possible, to restore the probationer
to the status of a person who has not suffered a conviction. (See People v. Field, supra,
31 Cal.App.4th 1778, 1787 [grant of relief under § 1203.4 is intended to mitigate the
consequences of conviction and, ―with a few exceptions, to restore him [or her] to his [or
her] former status in society to the extent the Legislature has power to do so‖]; People v.
Johnson, supra, 134 Cal.App.2d 140, 143 [purpose of granting probation is to help the
probationer become ―reinstated as a law-abiding member of society,‖ and ―[r]emoval of
the blemish of a criminal record‖ is an additional reward if the probationer complies with
§ 1203.4].)
Restitution fines are punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361
[―the Legislature intended restitution fines as punishment‖].) As such, restitution fines
constitute an undeniable ―penalty or disability‖ attached to the conviction of an offense.
Penal Code section 1203.4 expressly provides not only that the verdict be set aside, and
the accusations or information against the defendant dismissed, but also that, ―except as
noted below,‖ – i.e. with limited express exceptions – ―he or she shall thereafter be
released from all penalties and disabilities resulting from the offense of which he or she
has been convicted . . . .‖ (Pen. Code, § 1203.4, subd. (a)(1), italics added.) Inasmuch as
a restitution fine is a penalty or disability resulting from the offense, and it is not one of
the provided-for exceptions to the ―release from all penalties and disabilities resulting
from the offense,‖ then it follows that a restitution fine is a ―penalty or disability‖ from
29
which the successful probationer is released, when relief under Penal Code section
1203.4 is granted.
Preliminarily, we address the question whether the trial court here properly
granted defendant‘s motion for relief under Penal Code section 1203.4. In other words,
did defendant properly qualify under one of the three scenarios for relief under Penal
Code section 1203.4? We conclude that he did.
1. Defendant Was Properly Granted Relief (Mandatory Dismissal of the Charge) Under
Penal Code Section 1203.4
In this case, defendant was admitted to the ROC drug treatment program after
pleading guilty to his current charges. Throughout his drug court probation, defendant
performed very well, and received consistent positive reports from the program
administrators. Eventually, defendant successfully completed all five phases of the
program, including a total of approximately 20 months of sobriety, with at least six
months in the aftercare phase. He was recommended for graduation from the program.
Accordingly, on September 14, 2011, the court terminated defendant‘s probation early.
Defense counsel moved immediately for relief under Penal Code section 1203.4; the trial
court granted the motion. The court accepted a change of plea to ―not guilty,‖ and
dismissed the entire case.
The motion was properly granted. Clearly, as in other cases discussed, ante,
defendant did not qualify for mandatory relief under the first scenario. He had not
fulfilled all the terms of his probation during the ―entire‖ probationary period. (See, e.g.,
30
People v. Chandler, supra, 203 Cal.App.3d at p. 789.) For one thing, defendant had not
paid the court-ordered restitution fine, $200.4
Defendant did, however, come within the second scenario. His probation was
ended early, and he was discharged from probation before the regular termination date.
Unlike the requirements of the first scenario, a defendant is not required to have
successfully fulfilled all the terms of probation for the entire probationary period in order
to qualify for relief under Penal Code section 1203.4. Once the trial court had terminated
defendant‘s probation prior to the termination date, the court had no further discretion to
deny a motion for relief under Penal Code section 1203.4. (People v. Butler, supra, 105
Cal.App.3d at p. 589.)
The District Attorney concedes that the trial court ―did not commit error by
granting relief under section 1203.4 . . . .‖
2. The Restitution Fine Was Properly Suspended Because Defendant was entitled to be
“Released From All Penalties and Disabilities Resulting From the Offense”
After the motion under Penal Code section 1203.4 was granted, defendant was
―released from all penalties and disabilities resulting from the offense‖ (Pen. Code,
§ 1203.4, subd. (a)), albeit with certain exceptions.
Even though the statutory relief is not a true or complete expungement of the
conviction, it is a substantial benefit, and restores the probationer in most respects to
4 At the People‘s request, the record was augmented to include a document showing the payments defendant had made on the various fees and fines imposed at sentencing. This document shows that defendant made no payments on any of the fines and fees.
31
preconviction status. The relief takes the form, in part, of dismissal of the charge, and the
probationer is, for most purposes, thereafter restored to his or her former (preconviction)
status in society. (People v. Field, supra, 31 Cal.App.4th at p. 1787.) The dismissal of
the accusations and information functions, with a few exceptions, as a removal of the
blemish of a criminal record. (People v. Johnson, supra, 134 Cal.App.2d at p. 143.)
Consonant with the legislative intent to ―remove the blemish of a criminal record,‖ not
only is the charge dismissed, but the successful probationer is expressly released from all,
except a specified few, consequences attendant on the conviction. Payment of a
restitution fine is not one of the exceptions to the release from ―penalties and disabilities‖
resulting from the offense.
As our analysis of the history of victim restitution and restitution fines makes
clear, the trial court‘s duty to impose a mandatory order for victim restitution and a
restitution fine is triggered by the conviction of an offense. (People v. Chambers, supra,
65 Cal.App.4th at p. 822; accord, People v. Arata, supra, 118 Cal.App.4th at p. 202.) A
restitution fine survives the revocation of probation because the conviction of a criminal
offense remains extant for all purposes. Even if a probationer completes probation and is
discharged, the accusation or information, the verdict and the conviction of an offense, all
will still stand. In neither situation does any statute provide expressly for vacation of the
verdict, dismissal of the charges, and release from any penalties and disabilities resulting
from the offense. These situations are clearly distinguishable from the circumstances
here, where relief from penalties and disabilities has been expressly provided by statute.
32
The People argue that because, generally, ―The restitution fine survives the
probationary term,‖ California Victim Compensation and Government Claims Board
(Board) must be allowed to exercise its statutory authority to collect a defendant‘s unpaid
restitution fines, including cases under Penal Code section 1203.4. ―Any other
interpretation would render the Board‘s statutory authority to collect the restitution fine a
nullity.‖
We disagree. The Board‘s statutory authority to collect unpaid restitution fines
applies to restitution fines properly imposed. In most cases, the continuing existence of
an unmodified, extant conviction of an offense will permit the Board, under its general
authorization to continue to collect any portion of a restitution fine that the defendant did
not voluntarily pay during the period of probation, or prison sentence and parole. Where,
however, a specific statutory provision has expressly ―released‖ a defendant from ―all
penalties and disabilities resulting from the offense,‖ release from the obligation to pay
any unpaid balance of a restitution fine does not interfere unduly with the Board‘s general
authority to collect the unpaid balances of unreleased restitution fines.
First, we note that not every convicted person is admitted to probation. Those who
are not admitted to probation are ineligible for relief under Penal Code section 1203.4 at
all. The expiration of a prison sentence and possible period of parole will not affect the
existence of the conviction (triggering event requiring imposition of the restitution fine).
In any such case, the Board will still be empowered to collect any portion of the
restitution fine that remains unpaid after the defendant‘s release from prison and parole.
(Cf. People v. Arata, supra, 118 Cal.App.4th at p. 203 [a restitution fine would survive
33
and still have to be paid, even after completion of a prison sentence: ―Defendant is either
entitled to credit for its payment [during probation] or is responsible for paying it during
and, if necessary, after his prison sentence‖].)
Second, we reiterate our analysis ante that, of those who are admitted to probation,
only certain classes of probationers will qualify to have their conviction charge
dismissed. A probationer who completes the probationary period, but who does so
without fulfilling all the terms of probation will not qualify under the first scenario. A
probationer who completes the probationary period without an early termination will not
qualify under the second scenario. A probationer who completes the probationary period
without being able to establish a claim that the interests of justice merit a dismissal under
Penal Code section 1203.4 will not qualify for relief under the third scenario. In all such
cases, the conviction offense will remain intact for all purposes, including responsibility
to pay a restitution fine. The Board is statutorily authorized to collect the unpaid portion,
if any, of the restitution fine beyond the period of probation (whether it is ended by
revocation or completion) and prison/parole period, whenever the underlying conviction
remains intact (undismissed) for all purposes after those periods have ended.
Thus, restitution orders survive (1) where the defendant is not admitted to
probation, but serves and completes a prison sentence (cf. People v. Arata, supra, 118
Cal.App.4th at p. 203 [a restitution fine would survive and still have to be paid, even after
completion of a prison sentence: ―Defendant is either entitled to credit for its payment
[during probation] or is responsible for paying it during and, if necessary, after his prison
sentence‖]), (2) where a defendant is granted probation but probation is revoked (People
34
v. Chambers, supra, 65 Cal.App.4th at p. 824; People v. Arata, supra, 118 Cal.App.4th at
p. 202), and (3) where a defendant is granted probation, and completes the probationary
period, without qualifying for relief under Penal Code section 1203.4. In all of these
cases, the conviction remains intact and undismissed for all purposes, including the
imposition of and continuing obligation to pay mandatory restitution fines.
In the narrow set of cases where relief has been granted under Penal Code section
1203.4, however, the charge of which the successful probationer was convicted is
dismissed, and the probationer thereafter has been expressly ―released from all penalties
and disabilities resulting from the offense.‖ The foundation of the restitution fine—the
underlying charges, offense and verdict—no longer exists for most purposes. It is
therefore appropriate for the trial court to suspend or dismiss the restitution orders and
fines as a means of fulfilling the statutorily provided release from that particular penalty
resulting from the offense. The existence of a narrow set of specific exceptions under
Penal Code section 1203.4 does not negate or nullify the general statutory provisions for
the survivability of restitution fines, or the authority of the Board to collect unpaid
restitution fines in most cases.
DISPOSITION
Defendant successfully completed his probation through early termination. This
success was a circumstance that entitled him to move to dismiss the underlying charges
and convictions pursuant to Penal Code section 1203.4. Upon dismissal of the
underlying convictions, defendant was entitled to ―release from the penalt[y] or
disability[y]‖ of continuing liability to pay the unpaid portion of his restitution fine. The
35
trial court therefore properly suspended or dismissed the unpaid balance of the restitution
fine. The judgment is affirmed.
CERTIFIED FOR PUBLICATION
McKINSTER Acting P. J.
We concur:
RICHLI J.
KING J.
36
AI Brief
AI-generated · verify before citing
Holding. The trial court lacked the authority to suspend or dismiss unpaid restitution fines upon the early termination of probation, as such fines are mandatory and survive the completion of a probationary term.
Issues
Whether a trial court has the authority to suspend or dismiss unpaid restitution fines upon the early termination of probation.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“a mandatory restitution fine will survive after the end of a period of probation, regardless of whether the probation was terminated negatively (e.g., revocation) or positively (successfully completed).”