P. v. Patel CA2/3

Filed 6/4/13 P. v. Patel CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B242524

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA014198) v.

PRANAV NATUARLAL PATEL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila Corral Lyons, Judge. Reversed and remanded.

Anthony D. Zinnanti for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION To aid his quest to become a United States citizen, defendant and appellant Pranav Natuarlal Patel filed, under Penal Code section 1203.4,1 a motion to expunge his felony conviction for sexual battery by restraint. In support of the motion, Patel submitted his declaration and exhibits showing why the interests of justice, in the trial court‟s discretion, justified relief. Because the record does not demonstrate that the trial court considered the merits of Patel‟s petition and exercised its discretion, we remand this matter. FACTUAL AND PROCEDURAL BACKGROUND In October 1993, a felony complaint was filed against Patel. It alleged two counts: count 1 for assault with the intent to commit rape (§ 220), and count 2 for sexual battery by restraint (§ 243.4, subd. (a)). Patel, on March 29, 1994, pleaded nolo contendre to count 2. On May 18, 1994, imposition of sentence was suspended and he was placed on four years‟ formal probation on the conditions, among others, he serve 365 days in jail and register with the local police agency as a sex offender.2 His probation case was terminated on May 17, 1998. Years later, on December 16, 2008, Patel filed a petition under section 1203.4 to have his record expunged.3 The trial court denied the petition because Patel “did not register pursuant to Penal Code section 290 and therefore [he] did not successfully complete probation.” In August 2011, Patel filed a second motion under section 1203.4 on the ground he fulfilled the conditions of probation. There was no appearance made at the hearing on the petition, and it was denied on November 14, 2011. The minute order from the hearing