People v. Ricci

Filed 12/14/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A151291 v. JAMES ALBERT RICCI, (Sonoma County Super. Ct. No. SCR22536) Defendant and Appellant.

This appeal presents the following issue: May a defendant who has suffered both felony and misdemeanor convictions in the same case seek the dismissal of the misdemeanor convictions under section 1203.4a?1 The Attorney General concedes a felony conviction does not disqualify a defendant from seeking relief as to misdemeanor convictions in the same case. Finding the concession to be appropriate, we reverse the trial court’s order denying appellant’s petitions for dismissal and direct the court to consider those petitions on their merits. I. BACKGROUND “[S]ection 1203.4 permits convicted felons or misdemeanants who have been granted probation to petition the court for release from the penalties and disabilities resulting from the conviction after their probationary period has terminated. . . . [¶] . . . [S]ection 1203.4a provides similar relief for persons convicted of misdemeanors and not granted probation.” (People v. Mendez (1991) 234 Cal.App.3d 1773, 1778.) The relief afforded by these provisions is required when specified conditions are met. (People v.

1 Further statutory references are to the Penal Code unless otherwise indicated.

1

McLernon (2009) 174 Cal.App.4th 569, 574–575; § 1203.4, subd. (a)(1), § 1203.4a, subd. (b).) In other situations, relief is available in the court’s discretion in the interests of justice. (Ibid.)2 In 1989, in case number MCR97449, appellant was placed on probation after being convicted of one misdemeanor count of evading a peace officer under Vehicle

2 Section 1203.4 provides in relevant part: “(1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.” Section 1203.4a provides in relevant part: “(a) Every defendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime, and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; or if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of Part 6 of this code or Section 13555 of the Vehicle Code. [¶] (b) If a defendant does not satisfy all the requirements of subdivision (a), after a lapse of one year from the date of pronouncement of judgment, a court, in its discretion and in the interests of justice, may grant the relief available pursuant to subdivision (a) to a defendant convicted of an infraction, or of a misdemeanor and not granted probation, or both, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense, and is not under charge of commission of any crime.”