People v. Tubera CA6

Filed 12/8/15 P. v. Tubera CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041358 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 182352, 191167)

v.

BASILIO BERNAL TUBERA,

Defendant and Appellant.

Defendant Basilio Bernal Tubera appeals from the trial court’s order after judgment denying defendant’s request to have his previous felony convictions dismissed (Pen. Code, §§ 1203.4, subd. (a)(1), 1203.41, subd. (a)(1))1 or to have those convictions reduced to misdemeanors (§ 17, subd. (b)). Defendant argues that the trial court failed to exercise its discretion in denying relief. For the reasons stated here, we will reverse the order to allow the trial court to exercise its discretion. I. TRIAL COURT PROCEEDINGS Defendant was arrested and charged by felony complaint in 1995 (the 1995 case) with attempting to take a car without the owner’s consent. (§ 664; Veh. Code, § 10851, subd. (a).) Defendant pleaded guilty on the condition that he be granted probation. The trial court suspended imposition of sentence for three years and placed defendant on formal probation with conditions including 120 days jail.

1 Unspecified statutory references are to the Penal Code.

While on probation in the 1995 case, defendant was arrested and charged in 1996 (the 1996 case) with taking a car without the owner’s consent (Veh. Code, § 10851, subd. (a)), as a felony; evading a peace officer (Veh. Code, § 2800.2), as a felony; and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Defendant pleaded guilty to all charges in the 1996 case2 and admitted a violation of probation in the 1995 case based on the 1996 conviction. The trial court sentenced defendant in the 1996 case to 16 months in state prison which was deemed served based on presentence custody credits. Defendant was released to three years’ parole. The sentencing minute order, abstract of judgment, and “Notice of Judgment Pronouncing Prison Sentence” in the 1996 case each shows a prison commitment in that case with no mention of the 1995 case. (Emphasis omitted.) The companion minute order for the 1995 case indicates probation was terminated with “[n]o further penalties” and a total term of “0” days in custody; defendant was ordered released “@ this time ... .” (Capitalization omitted.) In 2014, defendant petitioned for dismissal and moved to reduce his felonies to misdemeanors under sections 17, 1203.4, and 1203.41. Defendant contended that he had fully complied with the sentence imposed in the 1996 case, was not presently serving a sentence, and had “made a complete turnaround” in his life in the roughly 17 years since the 1996 case. The trial court indicated at a hearing in August 2014 that its tentative decision was to deny the petition and motion because defendant had served a prison sentence in both cases, such that “record clearance ... is not available to him.” Defense counsel noted that only the 1996 case resulted in a prison sentence. Because the trial court interpreted the record as reflecting a prison sentence in both cases, it continued the hearing to allow counsel to research and brief the issue.