People v. Toney CA2/6

Filed 8/18/15 P. v. Toney CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261880 (Super. Ct. No. CR38787) Plaintiff and Respondent, (Ventura County)

v.

MICHAEL W. TONEY,

Defendant and Appellant.

In 1996, Michael W. Toney was convicted by plea of unlawful sexual 1 intercourse with a minor (Pen. Code, § 261.5, subd. (c)) and oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)). The trial court suspended imposition of sentence and granted five years probation. Appellant successfully completed probation and appeals from a post-judgment order denying his motion to reduce the offenses to misdemeanors (§17, subd. (b)(3)) and motion to withdraw his plea and dismiss the complaint (§ 1203.4). We reverse with directions to grant the motion to withdraw the guilty plea and dismiss the complaint. (§ 1203.4, subd. (a)(1).) The order denying the motion to reduce the offenses to misdemeanors is affirmed. (§ 17, subd. (b)(3).) In 1995, appellant (age 36) groomed a 17-year-old female student, M.G., for sexual intercourse while teaching at a Christian private school. Appellant kissed

1 All statutory references are to the Penal Code unless otherwise stated.

M.G., digitally penetrated her vagina, and fondled her breasts. On December 16, 1995, appellant had unprotected sexual intercourse with M.G. at his house. Appellant wrote more than 60 letters to M.G. about his sexual activities. After the letters were turned over to the police, appellant admitted fondling another student 10 years earlier after leaving his teaching position at the student's school. Appellant pled guilty to unlawful sexual intercourse and oral copulation of M.G. On July 26, 1996, the trial court suspended imposition of sentence and granted five years formal probation. Appellant successfully completed probation and, in 2014, filed a motion to reduce the felony offenses to misdemeanors (§ 17, subd. (b)(3)) and to withdraw his plea and dismiss the complaint (§ 1203.4). The trial court denied the motion due to the serious nature of the offenses and appellant's violation of trust. On January 5, 2015, the court denied a motion for reconsideration, citing "the nature of the trust that was violated" and the possibility that appellant "might be in a position to do this again." Section 1203.4 Appellant argues that he has fulfilled all probation conditions and is entitled to mandatory relief pursuant to section 1203.4. The Attorney General agrees. Section 1203.4, subdivision (a)(1) provides that a defendant, upon the successful completion of probation, may withdraw his or her plea of guilty on certain qualifying offenses and 2 expunge the conviction. "[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 (1998) 203 Cal.App.3d 782, 788.) Where the motion satisfies the requirements of section 1203.4, the trial court must grant relief in accord with the statute. (In re Griffin (1967) 67 Cal.2d 343, 347, fn. 3; People v. Hawley (1991) 228 Cal.App.3d 247, 250.) " 'The