People v. Carlton CA2/3

Filed 2/25/14 P. v. Carlton CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B247465

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA071567) v.

JAMES CARLTON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Reversed and remanded with the directions. William P. Daley for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

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James Carlton appeals the order entered after judgment denying his petition for a dismissal of the judgment pursuant to Penal Code section 1203.4, subdivision (a)(1), after he pled guilty to attempting to commit lewd or lascivious acts with a child under the age of 14. (Pen. Code, §§ 664, 288, subd. (a)).1 He contends that the trial court was compelled to order the dismissal as neither the trial court nor the People denied appellant had fulfilled the terms and conditions of probation and the offense of attempted lewd and lascivious acts with a child under the age of 14 was not an excluded offense listed in section 1203.4, subdivision (b). BACKGROUND On May 17, 2007, appellant was convicted after a certified plea of guilty to attempted lewd or lascivious conduct with a child and was granted three years of formal probation.2 His probation supervision was transferred to a county probation officer in San Diego, California. The probation report, as well as a psychological evaluation in the file, reveal that appellant was arrested for lewd conduct after he contacted a girl who told him she was 13 years of age online in an Internet chat room. Discovering her father would be out of town, appellant made arrangements to go to the girl’s residence. Unbeknownst to appellant, the 13-year-old female was an National Broadcasting Company (NBC) decoy who was attempting to uncover pedophiles who were looking for underage women online. When appellant arrived at the girl’s residence, he was confronted by an NBC moderator and arrested by the Long Beach Police Department. Section 288, subdivision (a), provides that “[a]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes