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People v. McLernon

May 29, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MYRLE DENNIS MCLERNON, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court for Los Angeles County, Thomas R. White, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. MA002863).

The opinion of the court was delivered by: Willhite, J.

CERTIFIED FOR PUBLICATION

Under Penal Code section 1203.4 (section 1203.4), a defendant who has been convicted of a crime and granted probation is entitled to have his record expunged after the period of probation has terminated "if he comes within any one of three fact situations: (a) he has fulfilled the conditions of his probation for the entire period; (b) he has been discharged before the termination of the period of probation; or (c) in any case in which a court, in its discretion and the interests of justice, determines he should be granted relief." (People v. Butler (1980) 105 Cal.App.3d 585, 587.) In this case, defendant Myrle Dennis McLernon moved under section 1203.4 to expunge his conviction for possession of a controlled substance for sale. Because he had violated his probation, his motion sought relief under the third situation and was supported by evidence of his conduct since his probation ended. The trial court "rejected" the motion because McLernon previously had submitted different petitions for relief that were denied for failure to successfully complete probation. McLernon appeals, arguing the trial court abused its discretion by denying relief in light of the evidence of post-probation conduct he presented. The Attorney General contends there was no abuse of discretion because, inter alia, when determining whether the interests of justice warrant relief under section 1203.4, the court may consider a defendant's conduct only during the period of probation. We hold that consideration of post-probation conduct is not precluded under the statute. Because it appears that the trial court did not consider the merits of McLernon's motion, we reverse the order and remand the matter to the trial court to determine whether, in the exercise of its discretion and the interests of justice, McLernon is entitled to relief under section 1203.4.

BACKGROUND

Sometime before 1995, McLernon was convicted of felony possession of a controlled substance for sale, a violation of Health and Safety Code section 11378, and was placed on probation.*fn1 As a term of probation, McLernon was ordered to submit to drug testing. He violated his probation in 1995 when he tested positive in one of his drug tests. Since that violation, he has been clean and sober. He paid all fines and court costs ordered by the court.

In 2001, McLernon filed a motion under section 1203.4 to dismiss his conviction. That motion was denied by Judge Pamela R. Rogers on March 6, 2001. The record on appeal does not include McLernon's motion; it includes only the minute order denying the motion. The minute order notes that McLernon was not present at the hearing on the motion and was not represented by counsel, and does not state the reason for the denial.

In 2007, McLernon filed a Judicial Council form petition for expungement under section 1203.4. The caption on the form petition lists an attorney for McLernon (Marc K. Herbert), and was signed by McLernon on January 26, 2007. There is no proof of service attached,*fn2 but the petition is file-stamped June 5, 2007. The petition states only that McLernon was convicted of a violation of Health and Safety Code section 11378 (it omits the date of conviction), that the offense was a felony, and that probation was granted. It appears to attach a completed statement of assets that is not signed or dated, and a document listing McLernon's background and experience. The trial court (Judge Thomas R. White presiding) denied the petition on the same date the petition was file-stamped (June 5, 2007). The minute order states: "Defendant is not present in court, and not represented by counsel. [¶] Defendant's petition for expungement is denied. [¶] Petition was previously submitted and denied on March 6, 2001 due to unsatisfactory performance on probation."

Sometime later, McLernon, represented by attorney Mathew K. Higbee, filed a motion to withdraw his guilty plea and dismiss the conviction in the interest of justice under section 1203.4.*fn3 Unlike his previous form petition for expungement, this motion was expressly made on the ground that it was in the interests of justice to grant the requested relief, and it attached McLernon's declaration in support of his motion. The declaration states that the conviction at issue is McLernon's only conviction, that he is not currently facing any charges or serving any sentence, and that he paid all fines and court costs ordered by the court. McLernon also states that he tested positive for drugs in one of his court-ordered drug tests in 1995, violating his probation, but that he has completed a 90-day in-house treatment program and attended Narcotics Anonymous, and has been clean and sober since that violation. Finally, he describes his personal and professional life (he is an architect, is married and has four children) and his involvement in the community since his probation ended, and explains that he wants to have his conviction expunged so he can participate in professional organizations, serve in certain elected positions, and be approved as a registered permanent volunteer at a high school.

On June 27, 2008, the trial court issued a minute order stating: "The petition for relief pursuant to Penal Code section 1203.4 is rejected having been submitted and denied on 3-06-01 and 6-05-07." This appeal followed.

DISCUSSION

Section 1203.4 provides in relevant part: "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 . . . and . . . 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." (§ 1203.4, subd. (a).)

As the statutory language makes clear, there are three situations in which a defendant may be entitled to have his or her conviction dismissed. The first two -- when the defendant fulfilled the conditions of probation for the entire probationary period or when the defendant was discharged before the termination of the period of probation -- require the court to grant the requested relief if the conditions are met. The last requires the court to determine whether, in its discretion and the interests of justice, the relief should be granted.

In the motion at issue in the present appeal, McLernon sought relief based upon the third situation, i.e., the motion asked the court to find that relief should be granted in the interests of justice based upon his 12 years of sobriety and his community and professional activities, and his desire to participate in various activities that require his record to be expunged. He argues on appeal that the court did not consider his evidence or the interests of justice, but instead denied the motion based upon the denials of his motion in 2001 and his petition in 2007, which denials were based upon his failure to fulfill the conditions of probation for the entire probationary period. In response, the Attorney General argues that McLernon has not demonstrated that the trial court based its decision solely on his poor performance on probation. The Attorney General also contends that McLernon is not entitled to relief in any event because evidence of a defendant's conduct after termination of the period of probation is not relevant to the "interests of justice" basis for relief under section 1203.4, and because the denial of McLernon's previous two requests for relief bars re-litigation of the issue under the doctrine of res judicata. The Attorney General is incorrect.

First, the language of the minute order at issue makes clear that the trial court did not consider the merits of McLernon's motion. The court "rejected" the motion as "having been submitted and denied on 3-06-01 and 6-05-07." Moreover, the minute order denying the previous motion petition on June 5, 2007 indicates that the reason for that denial was the denial of the March 6, 2001 motion, which was denied "due to unsatisfactory performance on probation." Thus, it appears that the sole ...


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