People v. Mittelsteadt CA4/3

Filed 12/24/15 P. v. Mittelsteadt CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051154

v. (Super. Ct. No. 10CF0585)

TODD PHILLIP MITTELSTEADT, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Reversed and remanded. Randy K. Ladisky, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Quisteen S. Shum and Peter Quon Jr., Deputy Attorneys General, for Plaintiff and Respondent.

Todd Phillip Mittelsteadt pleaded guilty to second degree commercial burglary and admitted he suffered a prior prison term in exchange for three years of informal probation and the prosecutor’s agreement to not oppose a later request to reduce 1 the offense to a misdemeanor pursuant to Penal Code section 17, subdivision (b). The trial court imposed several conditions of probation, including a total of $260 in fines and fees. As promised, the prosecutor did not oppose Mittelsteadt’s October 2014 petition to reduce his offense to a misdemeanor or his request to dismiss the action pursuant to section 1203.4 (hereafter 1203.4 motion). However, the trial court denied both requests. Mittelsteadt filed a motion for reconsideration, and the trial court ordered the offense be reduced to a misdemeanor, but it denied the 1203.4 motion. The parties agree the order should be reversed but disagree on whether the matter should be remanded. We conclude the order must be reversed and the matter remanded for the trial court to consider the 1203.4 motion and provide a statement for its grant or denial. II On appeal, Mittelsteadt argues the trial court erred in denying his 1203.4 motion and this court should direct the trial court to dismiss the action on remand. The Attorney General agrees this case should be remanded, but with instructions for the trial court to consider the 1203.4 motion and provide an explanation for its ruling on the matter. We agree with the Attorney General. Section 1203.4 permits a qualifying defendant who has pleaded guilty and successfully completed probation “to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty[.] [T]he court shall thereupon dismiss the accusations or information against the defendant and . . . he or she shall thereafter be