People v. Bradley

TAYLOR, J.

Defendant, Thomas N. Bradley, in pro. per., appeals from an order dated April 8, 1966, denying his application to expunge the record of his prior conviction pursuant to section 1203.4 of the Penal Code. He contends that the trial court erred in denying him the mandatory relief provided by the statute.

The facts are not in dispute. On December 7, 1964, defendant was convicted on his plea of guilty to attempted burglary, a felony, in violation of section 459 of the Penal Code.

1

The court suspended imposition of the sentence, placed

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defendant under the supervision of the probation officer and as a condition of probation ordered defendant to spend six months of the probationary period in the county jail. On April 16, 1965, on petition of the probation officer, the term was reduced to the time already served, probation was terminated and defendant released. On October 19, 1965, defendant was charged by information with robbery (Pen. Code, § 211), kidnaping (Pen. Code, §207) and three prior convictions, the third being the 1964 attempted burglary. On December 7, 1965, defendant pled guilty to the charge of auto theft, an offense included within the offense charged in the ñrst count of the information, and admitted the third prior, the attempted burglary. Thereafter, on the motion of the district attorney, the kidnaping count of the information and the first and second prior convictions were dismissed. Defendant’s motion for probation was denied and he was sentenced to the state prison for the term prescribed by law.

2

On March 30, 1966, defendant filed his application seeking withdrawal of his plea of guilty to the attempted burglary charge and dismissal of the accusation pursuant to section 1203.4 of the Penal Code.

Section 1203.4 of the Penal Code provides : ‘ ‘ Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that in any subsequent prosecution of such defendant for any other offense, such 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. ’ ’