People v. Tidwell CA6

Filed 3/17/16 P. v. Tidwell CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042335 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS091639A, SS090930A) v.

COREY TIDWELL,

Defendant and Appellant.

Defendant Corey Tidwell appeals from an order after judgment in which the trial court denied his application to reduce two felonies to misdemeanors pursuant to Proposition 47. Defendant contends the trial court erred in finding the felonies ineligible for designation as misdemeanors because they had previously been dismissed pursuant to Penal Code section 1203.4.1 Defendant also contends the trial court’s ruling violated defendant’s equal protection rights by subjecting those individuals who previously sought relief under section 1203.4 to disparate treatment. The People agree that a dismissal pursuant to section 1203.4 does not preclude relief under Proposition 47 and concede the trial court erred in denying defendant’s request to reduce the felonies to misdemeanors. We agree the concession is appropriate for the reasons expressed herein. We will reverse the denial of defendant’s applications for designation of his felony convictions as misdemeanors and remand to the trial court for further proceedings.

1 Unspecified statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND In March 2009, the Monterey County District Attorney charged defendant in case No. SS090930A with three counts: felony possession of heroin (Health & Saf. Code, § 11350, subd. (a), count 1); misdemeanor possession of a hypodermic needle (Bus. & Prof. Code, § 4140, count 2); and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a), count 3). In June 2009, the Monterey County District Attorney charged defendant in a separate case, case No. SS091639A, with four counts: felony sale or transport of heroin (id., § 11352, subd. (a), count 1); felony possession of heroin (id., § 11350, subd. (a), count 2); misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a), count 3); and misdemeanor being under the influence of a narcotic (Health & Saf. Code, § 11550, subd. (a), count 4). The record contains only the minutes of defendant’s sentencing report in each case, which reflect an apparent plea bargain. In case No. SS090930A, defendant pleaded guilty to count 1, Health and Safety Code section 11350, subdivision (a) felony possession of a controlled substance. Counts 2 and 3 in case No. SS090930A were dismissed. In case No. SS091639A, defendant pleaded guilty to count 2, Health and Safety Code section 11350, subdivision (a) felony possession of a controlled substance, and to count 3, Vehicle Code section 23152, subdivision (a) driving under the influence. Counts 1 and 4 in case No. SS091639A were dismissed. On October 7, 2009, the trial court suspended imposition of sentence in both cases and placed defendant on concurrent formal probation for three years. A condition of probation in each case was to complete a drug treatment program, which defendant successfully completed. On July 1, 2011, defendant moved to withdraw his guilty pleas to the felony possession charges (count 1 in case No. SS090930A; count 2 in case No. SS091639A). The trial court granted the motions and entered not guilty pleas as to each, vacated the