People v. Carriel-Camacho CA6

Filed 11/19/14 P. v. Carriel-Camacho CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040474 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 127806)

v.

ARMANDO CARRIEL-CAMACHO,

Defendant and Appellant.

Armando Carriel-Camacho appeals from the superior court’s October 7, 2013 order, which denied his motion to (1) clarify that his 1989 plea to former Health and Safety Code section 11350 was to subdivision (b), not subdivision (a), and (2) reduce the conviction from a felony to a misdemeanor pursuant to section 17, subdivision (b), (hereafter section 17(b)) of the Penal Code.1 Appellant’s motion also requested an order pursuant to section 1203.4,2 which the court granted.

1 All further statutory references are to the Penal Code unless otherwise stated. 2 Section 1203.4, subdivision (a)(1), provides: “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 time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities

We conclude that the trial court did not abuse its discretion and affirm. I. Procedural History A. Prior Proceedings A complaint filed June 6, 1988, alleged that on or about May 10, 1988, appellant committed a violation of former Health and Safety Code section 11351 in that he “did possess for sale a controlled substance, to wit: Heroin.” The complaint was amended to simple possession (former Health and Saf. Code, § 11350) and appellant pleaded guilty. The court found a factual basis for the plea. The probation report, which was prepared for sentencing and filed April 25, 1989, described the charge to which appellant had pleaded guilty as “[s]ection 11350 of the Health and Safety Code (Possession of Heroin).” According to the report, law enforcement executed a search warrant at a residence on May 10, 1988. Officers found appellant and four others present at the residence and “1.5 grams gross weight of heroin sitting on a small gram scale, cocaine residue, and approximately 33 grams gross weight of marijuana in the southeast bedroom.” “Next to the scale was a box of plastic baggies, cocaine residue, and a wallet belonging to the defendant.” During a postarrest interview,