People v. Hawley

Opinion

WHITE, P. J.

Greg Hawley appeals from an order denying his petition for expungement of his conviction after he was discharged prior to the termination of the period of his probation. (Pen. Code, § 1203.4.)

1

He contends the trial court had no discretion to deny the petition. We agree and reverse the order.

2

[249]

I

Facts

Hawley pled guilty to one count of nonforcible sodomy with a person under the age of 18. (§ 286, subd. (b)(1).) On June 4, 1987, he was sentenced to five years’ probation conditioned on his serving nine months in county jail through the work furlough program. Hawley was unable to find employment with an employer willing to report to the work furlough program and was released on his own recognizance. Within a week of his release, Hawley was arrested for burglary, but the victim declined to prosecute. About a month later, Hawley was arrested for driving under the influence (Veh. Code, § 23152, subd. (a)) but no charges were filed due to lack of evidence. Nevertheless, the probation officer recommended that Hawley’s probation be modified to require that he be placed in custody to serve his jail time. The trial court remanded Hawley to the custody of the sheriff and imposed an additional three months to the nine-month jail term previously imposed, but otherwise continued probation.

Five months later, Hawley received a favorable probation progress report. Some 20 months after that, the probation officer filed another favorable progress report. The report noted Hawley had remained arrest-free for two and one-half years, had paid his restitution fine in full, and had successfully completed his course of therapy. Hawley’s therapist indicated there was no danger Hawley would “re-offend” as a molester, and concluded continued counseling was unnecessary. Finally, the report noted Hawley’s performance on probation had been “outstanding,” and recommended that the term of probation “be modified so that it would terminate as of the date of this hearing” on the motion to terminate. At the December 26, 1989, hearing on the motion, the probation officer stated “This is on for early termination.” The court responded “Probation will terminate.” Nothing else was said at the hearing. Thus, Hawley’s probation was terminated after he had completed only about one-half of the original five-year period.