People v. Balboa CA1/1

Filed 3/22/22 P. v. Balboa CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A162473 v. GILBERTO BALBOA, (Solano County Super. Ct. No. FCR330837) Defendant and Appellant.

Defendant Gilberto Balboa pled no contest to one count of lewd conduct in public under Penal Code1 section 647, subdivision (a). The superior court suspended sentence and imposed a probation term of three years pursuant to the parties’ plea agreement. Three months before defendant’s probation was set to expire, the court terminated his probation under section 1203a, as amended by Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950). Defendant then filed a motion to set aside his conviction and dismiss the information pursuant to section 1203.4, which provides that a defendant whose probation terminates successfully is entitled to expungement. The motion was denied. On appeal, the Attorney General concedes that the superior court erred in denying the motion, and agrees that defendant is entitled to relief. We

1 All statutory references are to the Penal Code.

agree with the parties and reverse, remanding the matter to the lower court with instructions to grant defendant the relief he seeks. I. FACTUAL AND PROCEDURAL BACKGROUND Because the facts underlying defendant’s conviction are irrelevant to the issues on appeal, we do not discuss them. The People filed an information charging defendant with two felony counts of lewd and lascivious acts upon a child (§ 288, subd. (a)) in September 2017. Defendant later pleaded no contest to one misdemeanor count of lewd conduct in public (§ 647, subd. (a)). The remaining charges were dismissed as part of a negotiated disposition. In June 2018, the superior court suspended imposition of sentence and granted defendant informal probation for a term of three years, with various terms and conditions. On November 23, 2020, defendant moved the superior court to terminate his probation early and dismiss his conviction under section 1203.4. The prosecution opposed the request, arguing that no changed circumstance had arisen since the time of the plea to justify the requested relief. The court denied the motion. Effective January 1, 2021, Assembly Bill 1950 amended section 1203a to limit misdemeanor probation to a maximum term of one year, with exceptions that are not at issue here. (§ 1203a, subd. (b).) On March 3, 2021, the superior court filed an “Order Terminating Probation Pursuant to [Assembly Bill] 1950,” ending defendant’s probation approximately three months before its natural expiration date. On March 11, 2021, defendant renewed his request to dismiss his conviction under section 1203.4. Defense counsel stated that defendant’s probation had expired by operation of law, averring that he had completed all