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The People v. Kevin Deaundra Johnson

November 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN DEAUNDRA JOHNSON, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. (Super.Ct.No. APP1100125)

The opinion of the court was delivered by: Ramirez P. J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

Defendant, a misdemeanant, was placed on summary probation for domestic violence in 2002. He was ordered to serve 30 days in jail on weekends and attend a 52-week batterer's program, among other probationary terms following his guilty plea. Probation was violated several times due to his failure to satisfy these two terms, but was reinstated each time until August 2003, when he was ordered to serve a straight sentence of 120 days in jail, concurrent with prison sentences on two felony cases, and probation was terminated early.

In 2011, defendant made a motion to set aside his guilty plea and dismiss the charge pursuant to Penal Code section 1203.4, on the grounds his probation was terminated early. The trial court denied the motion and the Appellate Division of the Superior Court affirmed that decision. The superior court then certified the case for transfer to the Court of Appeal to address the question of whether a defendant is eligible for relief when his probation is terminated early after a violation of probation. We accepted the transfer and now affirm.

BACKGROUND

On March 8, 2002, defendant was charged in a single count complaint with misdemeanor domestic violence, in violation of Penal Code section 273.5, subdivision (a). At his arraignment, the clerk's minutes reflect that the misdemeanor would trail a felony, in case No PEF004695. On March 19, 2002, defendant pled guilty to the charge and was placed on summary probation. The probationary terms required defendant to serve 30 days in jail, with credit for four days of presentence custody, participate in anger management, and enroll in a 52-week batterer's program. The jail time was to be served on consecutive weekends commencing on April 12, 2002, and defendant was directed to provide proof of completion of the batterer's program by April 9, 2003. The court referred defendant to the Alternative Sentencing Program (ASP)*fn1 to coordinate and monitor his compliance with the court-ordered conditions of probation.

On April 11, 2002, ASP reported that defendant failed to enroll in the batterer's program. Then next day, the Riverside County Sheriff's Office reported that defendant failed to surrender for processing for his weekend commitment. On April 18, 2002, the clerk filed a formal allegation of violation of probation, alleging defendant had failed to participate in anger management and provide proof of completion to the clerk. On April 19, 2002, the clerk issued a second allegation of violation of probation and notice to appear regarding defendant's failure to turn himself in for his weekend jail commitment. On July 2, 2002, defendant admitted violating the terms of probation requiring him to attend the batterer's program and serve weekends in jail. Probation was reinstated.

On July 18, 2002, ASP provided an update to the court indicating the defendant had appeared for his interview and was placed at Family Services Association of Western Riverside County for the 52-week batterer's program, for which he would enroll in August. However, defendant failed to enroll, so the court set a hearing date of August 12, 2002, on the alleged violation of probation. When defendant failed to appear at that hearing, probation was revoked and a bench warrant was issued.

On September 23, 2002, defendant appeared on the bench warrant and admitted violating probation relating to the 52-week batterer's program. The court reinstated probation on the same terms and conditions. On September 26, 2002, the Alternative Sentencing Program notified the court that it had terminated defendant from the 52-week batterer's program because he failed to return for reinstatement after missing four consecutive weekly meetings. On October 24, 2002, the Riverside County Sheriff's Office reported that defendant failed to appear for his weekend jail commitment.

On November 7, 2002, the clerk filed and served notice to defendant of the alleged violation of probation regarding his failure to participate in the batterer's program and failure to serve his weekend jail time. The hearing on the violation of probation was scheduled to take place on December 9, 2002, but defendant failed to appear. The court revoked probation and issued a bench warrant. On August 26, 2003, defendant appeared on the bench warrant and admitted violating his probation. Although the minutes indicate he was reinstated on probation, the court committed defendant to county jail for the additional term of 120 days, to run concurrent with two felony cases, PEF004695, and SWF000862, and terminated defendant's probation early.*fn2

On April 28, 2011, defendant filed a motion to set aside his guilty plea and dismiss the complaint, pursuant to Penal Code section 1203.4. The motion was denied, and defendant appealed to the Appellate Division of the Superior Court. (People v. Johnson Super. Ct. Riverside County, 2012, No. APP1100125.) On February 21, 2012, the Appellate Division issued a per curiam opinion, affirming the trial court's denial of relief, on the grounds that mandatory relief under Penal Code section 1203.4 is triggered by successful completion of probation or early discharge from probation as a reward for good behavior and rehabilitation. (People v. Johnson, supra, at pp. 2, 11.) However, because reported decisions do not definitively address ...


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