People v. Massey CA5

Filed 4/26/16 P. v. Massey CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F071276 Plaintiff and Respondent, (Super. Ct. No. SC061230A) v.

CHARLES DWAYNE MASSEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Franson, J. and Peña, J.

INTRODUCTION Appellant Charles Dwayne Massey was convicted on March 17, 1995, of a violation of Penal Code1 section 278.5, deprivation of custody of a child or right to visitation, a felony. Massey was placed on probation, violated probation, and was incarcerated in prison. On February 10, 2015, Massey filed a petition for dismissal seeking to dismiss his conviction in the interests of justice pursuant to section 1203.4. The trial court denied the petition on February 25, 2015, finding Massey ineligible for relief under section 1203.4. Massey appeals. We affirm. FACTUAL AND PROCEDURAL SUMMARY Massey was convicted on March 17, 1995, of violating section 278.5, a felony. The February 10, 2015, petition for dismissal stated that Massey had been convicted of a felony for which he had been granted probation. Massey’s petition requested that his conviction be dismissed pursuant to section 1203.4 in the interests of justice because he had been granted a certificate of rehabilitation on May 1, 2012. Massey’s petition requested that the trial court take judicial notice of the file in the case in which he suffered the felony conviction. A hearing on the petition was held on February 25, 2015. At the hearing, the People opposed the petition on the grounds Massey was not eligible for relief under section 1203.4. The People pointed out that although Massey originally was sentenced to a term of probation, he violated probation and was thereafter incarcerated in prison. Massey claimed he had “actually completed [his] probation period,” but somehow violated when he went to “go get a court date.” The trial court stated “the bottom line was you went to prison on a probation violation in this case. So that means you did not successfully complete probation.” The