People v. Lambert CA4/3

Filed 2/4/14 P. v. Lambert CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047913

v. (Super. Ct. No. C80413)

LAWRENCE OLAN LAMBERT, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Christopher J. Evans, Judge. Reversed and remanded. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Linh Lam, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Under Penal Code section 1203.4 (all further statutory references are to this code), a defendant who has successfully completed probation may expunge his or her conviction. But in 1997, the Legislature amended the statute to exclude certain sex offenders from its provisions. Seven years before the amendment, defendant Lawrence Olan Lambert pleaded guilty to six counts of lewd and lascivious acts upon a child under 14 years old in violation of section 288 in exchange for three years felony probation after he served one year in jail. In 2012, defendant moved to withdraw his plea under section 1203.4. The court denied his motion. Defendant contends he was denied due process because extrinsic evidence showed the parties understood section 1203.4 relief was part of the plea agreement and even if not, there was an implicit agreement he would be entitled to section 1203.4 relief after he completed his probation. Although the Supreme Court in Doe v. Harris (2013) 57 Cal.4th 64 (Doe) recently held the subsequent amendment applied unless “the parties . . . affirmatively agree[d] or implicitly underst[oo]d the consequences of [the] plea will remain fixed despite amendments to the relevant law” (id. at p. 71), the trial court never made that determination. We thus reverse the order denying the motion and remand the matter to trial court to conduct an evidentiary hearing on that issue based on “an analysis of the representations made and other circumstances specific to the individual case.” (Ibid.)