People v. Washington CA1/2

Filed 11/22/13 P. v. Washington CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A137951 v. SEAN DEMETRIUS WASHINGTON, (Marin County Super. Ct. No. SC165001E) Defendant and Appellant.

Sean Demetrius Washington appeals from denial of his motion for dismissal under Penal Code section 1203.41 following a plea of guilty to involuntary manslaughter. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. FACTS AND PROCEEDINGS BELOW On June 16, 2009, a Marin County grand jury returned a multi-count indictment naming appellant and five others. Appellant was charged with conspiracy to commit special circumstances murder, as well as with commission of the murder itself, and conspiracy to dissuade a witness by force, as well as direct commission of witness dissuasion. (§§ 182, subd(a)(1), 136.1, subd. (c)(1), (2).) The indictment also contained various other special allegations not germane to the issues presented.

1 All statutory references are to the Penal Code.

1

On September 2, 2011, shortly before commencement of trial, appellant entered into a plea agreement with the district attorney. In return for, among other things, booking under an alias and relocation to a detention facility outside of Marin County until sentencing, a stipulated sentence of five years—four years for involuntary manslaughter and an additional year for the gun enhancement (§ 192, subd. (b), 12022, subd. (a)) —and the dismissal of all remaining charges, appellant agreed to testify for the prosecution against the remaining defendants. Both parties fulfilled their obligations under the agreement. At the sentencing hearing on July 19, 2012, the five-year term was deemed by the court to have been served and appellant was released from custody. On December 07, 2012, appellant’s counsel filed a motion for dismissal pursuant to section 1203.4. On January 25, 2013, the court denied the motion. A timely notice of appeal was filed on February 14, 2013. DISCUSSION Appellant’s motion to dismiss states that it “seeks to expunge his record of conviction” in order to “facilitate [his] ability to obtain gainful employment, become self supporting, and assume a societal role as a responsible, taxpaying citizen. This highly worthwhile goal can be accomplished by means of a statutory legal fiction permitting Mr. Washington to deny, in a non-governmental job application, that he has been convicted of a felony.” Although appellant’s motion to dismiss was based primarily on section 1203.4, it also relies on provisions and the policy of the so-called “realignment” program described in section 1170, and on appellant’s “special status as a previous witness for the prosecution . . . , and a recipient of witness relocation services through the District Attorney’s Office.” As material, section 1203.4, provides that “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