People v. Marinelli

Filed 3/27/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039416 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. CC763357)

v.

ANTHONY JOSEPH MARINELLI,

Defendant and Respondent.

This appeal presents a single question of statutory construction: whether a conviction for attempted lewd or lascivious acts on a child under 14 constitutes “any violation of [Penal Code] Section 288,” which prohibits lewd or lascivious acts on a child under 14, for purposes of Penal Code section 1203.4, subdivision (b).1 We agree with our colleagues in the Fourth District that it does not. Accordingly, we affirm the superior court’s order granting defendant Anthony Joseph Marinelli’s section 1203.4 motion for leave to withdraw his guilty plea and dismissing Marinelli’s conviction. I. BACKGROUND In 2008, Marinelli pleaded nolo contendere to attempted lewd or lascivious act on a child under 14 (§§ 664, 288, subd. (a)) and attempted distribution or exhibition of harmful material to a minor (§§ 664, 288.2, subd. (b)). The trial court suspended imposition of sentence and placed Marinelli on three years formal probation. In 2012, after successfully completing probation, Marinelli filed a motion in the trial court seeking to withdraw his plea and to have his conviction dismissed pursuant to section 1203.4, subdivision (a). The government opposed the motion on the ground that

1 Further unspecified statutory references are to the Penal Code.

Marinelli was not eligible for section 1203.4, subdivision (a) relief because he was convicted of a violation of section 288, and section 1203.4, subdivision (b) makes section 1203.4, subdivision (a) inapplicable to such violations. The court granted the motion, as it was bound to do by the Fourth District’s decision in People v. Lewis (2006) 146 Cal.App.4th 294, 298 (Lewis), which holds that section 1203.4, subdivision (b) does not include attempted violations of section 288. The government timely appealed. In Lewis, the government conceded that section 1203.4, subdivision (b) did not apply to attempts, and therefore that court did not have the benefit of a full discussion of the issue, as we do here. Nevertheless, for the reasons set forth below, we conclude Lewis was correctly decided. II. DISCUSSION A. Section 1203.4 Section 1203.4, subdivision (a) allows a defendant to withdraw a plea of guilty or nolo contendere and receive a dismissal from the court upon successful completion of probation. “[A] defendant moving under Penal Code section 1203.4 is entitled as a matter of right to its benefits upon a showing that he ‘has fulfilled the conditions of probation for the entire period of probation.’ ” (People v. Chandler (1988) 203 Cal.App.3d 782, 788.) In other words, when a defendant has satisfied the terms of probation, the trial court has no discretion to deny a section 1203.4, subdivision (a) motion, unless section 1203.4, subdivision (b) applies. (People v. Chandler, supra, at p. 788.) Section 1203.4, subdivision (b) excepts certain violations from the relief provided in subdivision (a), including “any violation of . . . Section 288.” (§ 1203.4, subd. (b).) The section 1203.4, subdivision (b) exception for violations of section 288 was added to the statute in 1997, along with exceptions for a number of other sex offenses. (See Stats. 1997, ch. 61.) On its face, section 1203.4, subdivision (b) “does not expressly except