Santa Clara County Superior Court No. CC763357, Hon. Rene Navarro, Trial Judge
[Copyrighted Material Omitted]
Jeffrey Rosen District Attorney, and Christopher Boscia, Deputy District Attorney, for Plaintiff and Appellant.
Law Offices of Higbee & Associates Mathew K. Higbee and Jennifer D. Strange for Defendant and Respondent.
This appeal presents a single question of statutory construction: whether a conviction for attempted lewd or lascivious acts on a child under 14 constitutes “any violation of [Penal Code] Section 288, ” which prohibits lewd or lascivious acts on a child under 14, for purposes of Penal Code section 1203.4, subdivision (b). We agree with our colleagues in the Fourth District that it does not. Accordingly, we affirm the superior court’s order granting defendant Anthony Joseph Marinelli’s section 1203.4 motion for leave to withdraw his guilty plea and dismissing Marinelli’s conviction.
In 2008, Marinelli pleaded nolo contendereto attempted lewd or lascivious act on a child under 14 (§§ 664, 288, subd. (a)) and attempted distribution or exhibition of harmful material to a minor (§§ 664, 288.2, subd. (b)). The trial court suspended imposition of sentence and placed Marinelli on three years formal probation.
In 2012, after successfully completing probation, Marinelli filed a motion in the trial court seeking to withdraw his plea and to have his conviction dismissed pursuant to section 1203.4, subdivision (a). The government opposed the motion on the ground that Marinelli was not eligible for section 1203.4, subdivision (a) relief because he was convicted of a violation of section 288, and section 1203.4, subdivision (b) makes section 1203.4, subdivision (a) inapplicable to such violations.
The court granted the motion, as it was bound to do by the Fourth District’s decision in People v. Lewis (2006) 146 Cal.App.4th 294, 298 [53 Cal.Rptr.3d 40] (Lewis), which holds that section 1203.4, subdivision (b) does not include attempted violations of section 288. The government timely appealed. In Lewis, the government conceded that section 1203.4, subdivision (b) did not apply to attempts, and therefore that court did not have the benefit of a full ...