People v. Asedo CA1/4

Filed 9/12/14 P. v. Asedo CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A140716 v. FRANK ASEDO, (Sonoma County Super. Ct. No. SCR-461218) Defendant and Appellant.

Frank Asedo appeals from an order denying his petition to expunge a 2005 drug conviction following termination of his probation. (Pen.Code § 1203.4.)1 He contends relief under section 1203.4 must be granted because he fulfilled the conditions of his probation as required by law and the trial court erred in considering a subsequent misdemeanor conviction that occurred after he had successfully completed his probation. We agree and reverse the trial court’s order. I. BACKGROUND Asedo pled guilty to one count of possessing methamphetamine for sale. (Health & Saf. Code, §11378.) On July 18, 2005, he was sentenced to three years probation with standard terms and conditions. Asedo completed all conditions of his probation, including a 31-day residential treatment and payment of all fines and fees. Asedo’s probation expired on July 18, 2008.

1 All further undesignated statutory references are to the Penal Code.

1

On August 21, 2013, after completing his probationary period, Asedo filed a motion for expungement under section 1203.4.2 The probation department filed a report recommending the petition be granted. The report stated Asedo had fulfilled all conditions of his probation; he had no pending cases and was not serving any sentence at the time of the application. The report further noted Asedo had been convicted of a misdemeanor violation of Vehicle Code section 14601.2, subdivision (a) on June 25, 2010. The report concluded, “Because the defendant complied with the probation grant, Probation concurs with the defendant’s request for expungement.” At the November 4, 2013 hearing on the petition, the court expressed concern about the 2010 misdemeanor conviction. The court was also concerned with Asedo’s “atrocious . . . , quite prolific record” reflected in the original probation report. The original report noted Asedo had suffered misdemeanor convictions for driving under the influence in 1996, driving with a suspended license in 1993, 1996, 1999, and 2001, and reckless driving with consumption of alcohol in 1996. Based on these concerns, the court denied Asedo’s petition. This timely appeal followed. II. DISCUSSION On appeal, Asedo contends the trial court improperly relied on his post-probation conviction as a basis to deny relief under section 1203.4. As we shall explain, and as the Attorney General concedes, the trial court erred as a matter of law in denying Asedo’s petition for relief.