People v. Borja

Opinion

ROUSE, Acting P. J.

This appeal involves the question whether a defendant who has pleaded guilty to one or more felony charges, served a prison term therefor and successfully completed parole, may then have the guilty plea withdrawn and the charges dismissed pursuant to section 1203.4 of the Penal Code. We have concluded that he may not.

Defendant pleaded guilty to second degree murder and assaulting a peace officer with a deadly weapon. He was sentenced to state prison on both counts, the sentences to run concurrently. While in prison, he underwent psychological counseling, completed numerous academic courses at a nearby college, and generally established himself as a model prisoner. He was released from prison and placed on parole in 1977.

In 1979, after he was discharged from parole, defendant filed a motion to withdraw his guilty pleas, enter pleas of not guilty and have the court dismiss the charges pursuant to section 1203.4 of the Penal Code. He sought this relief because he was under threat of being deported to the Philippines, his country of origin, and wanted his conviction vacated to improve his chances of being allowed to reenter this country. His application for relief was premised on the assertion that section 1203.4 gave the court discretion to grant the requested relief in “the interests of justice” even when a felon had not been placed on probation but had been sentenced to state prison. The trial court denied the motion, ruling that it lacked jurisdiction to grant the relief sought, since defendant had not been on probation but had been in prison. The court pointed out that defendant’s remedy was to apply for a certificate of rehabilitation. Defendant has appealed from the order denying his motion.

[381]

Defendant’s major contention on appeal is that the 1971 amendment to section 1203.4 expanded the power of the superior court to include the power to vacate judgments of conviction where no probation was granted in felony cases.

Section 1203.4, subdivision (a), of the Penal Code states, in pertinent part: “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged pri- or 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,