IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
December 28, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PETER GEORGE WHITE, DEFENDANT AND APPELLANT.
(Sonoma County Super. Ct. No. SCR29063)
The opinion of the court was delivered by: Jones, P.J.
P. v. White
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Peter George White appeals contending the trial court abused its discretion when it denied his motion to expunge a prior felony conviction. We conclude the court did not abuse its discretion but will modify the court's order in one minor respect.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 20, 1998, appellant and an accomplice entered a Kmart store in Santa Rosa, filled bags with merchandise, and then left the store without paying. When a security guard confronted appellant and his accomplice, appellant sprayed the guard with mace.
Based on these facts, in April 2000, appellant pleaded no contest to one count of second degree burglary. (Pen. Code,*fn1 §§ 459, 460, subd. (b).) The trial court suspended the imposition of sentence and placed appellant on probation for three years.
In June 2002, the court found appellant had violated his probation by ingesting a controlled substances. The court reinstated probation on the condition, inter alia, that appellant complete a residential treatment program.
In March 2003, appellant's probation was revoked because he had failed to complete the residential treatment program. In April 2003, the court sentenced appellant to one year in the county jail with probation to terminate unsuccessfully upon completion of the term.
In approximately April 2007, appellant filed a motion under section 1203.4 to expunge his burglary conviction. The trial court denied the motion.
In March 2010, appellant filed a new motion to expunge. The motion was supported by letters from appellant and others who described the recent changes appellant had made. Appellant, who lived in Oregon, said he had given up drugs, begun working with retarded adults, and had returned to his Catholic faith. He implored the court to allow him to return to California with a "clean slate." Appellant's employer, a disabled Vietnam war veteran, praised appellant's work. One of appellants friends described appellant's reputation for integrity.
The probation department submitted a memorandum opposing appellant's motion. The memorandum detailed appellant's very poor prior performance on probation, and noted that appellant had continued to reoffend even after his probation was terminated. According to the memorandum, appellant was convicted of driving under the influence in Shasta County in 2004, and committed two counts of driving on a suspended license in Siskiyou County in 2007. In the latter instance, appellant failed to complete successfully the conditional sentences that had been imposed.
The trial court considering this evidence denied appellant's motion to expunge basing its decision on the probation department's report. As is relevant here, the court also stated it was denying appellant's motion, "with prejudice."
Appellant contends the trial court abused its discretion when it denied his motion to expunge.
As is relevant here, section 1203.4, subdivision (a) states, "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[.]"
"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." (People v. McLernon (2009) 174 Cal.App.4th 569, 574.)
Here, appellant sought relief based upon the third situation, i.e., he asked the court to find he was entitled to relief in the interests of justice based upon the recent changes he had made in his life. On appeal, appellant now contends the trial court "abused its discretion" when it denied his request. We are unpersuaded.
"When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
We find no abuse here. While the evidence appellant submitted showed he recently had made positive changes in his life, the memorandum that was prepared by the probation department put those recent changes in a different light. Appellant had committed a very serious crime and he had failed abysmally on probation. Even after appellant's probation terminated, he continued to reoffend suffering a conviction for driving under the influence and two convictions for driving on a suspended license. The trial court, balancing this evidence, could reasonably conclude that given appellant's very poor prior history, the positive changes appellant had made were too recent to justify granting him the benefits of section 1203.4. The court did not abuse its discretion.
Appellant contends the trial court erred because it based its decision on the "prior denials" not on his "current situation." This clearly is incorrect. The court stated expressly that it denied appellant's motion based on the probation department's memorandum, a document that set forth the details of appellant's prior crime and his subsequent efforts at rehabilitation. While the memorandum did note, and the court did state that appellant had filed a prior motion to expunge that was denied, nothing in the record supports the conclusion that the court based its decision on that prior denial.
Appellant also contends the trial court erred when it denied his motion "with prejudice." Appellant argues that portion of the court's order should be stricken because it might prevent him from making a similar motion to expunge in the future should he continue to make positive changes in his life. The People do not dispute that appellant should be permitted to file a motion to expunge under section 1203.4 in the future, but they argue the court's comment was not intended to preclude appellant from filing a future motion. We find appellant's argument on this point to be persuasive.
When a court rejects a party's request with prejudice, it can prevent the party from raising the issue at a later date even if circumstances have changed. (People v. Lockwood (1998) 66 Cal.App.4th 222, 230.) That is a drastic step that should be taken only in the most serious of circumstances. As Division Two of this court stated when faced with a closely related issue, "By definition, rehabilitation may well take years to achieve. The statute permits those who have been stripped of many of their civil and political rights to seek to have those rights restored. Those who so endeavor should be encouraged; denying a petition . . . with prejudice works in the opposite direction." (Ibid.)
We will order the appropriate modification.
The court's order denying appellant's motion is modified to delete the provision that the denial is "with prejudice." In all other respects, the order is affirmed.
We concur: Simons, J. Bruiniers, J.