P. v. Angelo

 

 

 

 

 

 

Filed 9/16/13  P. v. Angelo CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   JACQUELINE GABRIELLA ANGELO,               Defendant and Appellant.

E054798               (Super.Ct.No. RIF083417)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Becky Dugan,
Judge.  Affirmed.

            William
J. Capriola, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
Jacqueline Gabriella Angelo appeals from the trial court’s denial of her motion
under Penal Code section 1203.4href="#_ftn1"
name="_ftnref1" title="">^[1] to set aside her 1998 guilty plea and dismiss
the complaint, after she pled guilty to illegally
taking or driving a vehicle in exchange for three years of probation, which
was revoked twice.  The People conceded
based on the plain wording of the statute.  However, after briefing was completed on this
case, this Court filed a published opinion on the very same issue, >People v. Johnson (2012) 211 Cal.App.4th
252 (Johnson).  In that case we concluded that, based on the
legislative intent behind section 1203.4, a defendant who seeks to set aside a
guilty plea based on his or her early “discharge” from probation must establish
not the mere early termination of probation, but that the probation was
terminated because of defendant’s good conduct. 
Because defendant has not established that her probation was terminated
because of her good conduct, we affirm the trial court’s ruling denying her
section 1203.4 motion.

>Facts
and Procedure

            On
November 25, 1998,
defendant pled guilty to unlawfully driving or taking a vehicle (Veh. Code, §
10851).  On that date the trial court
suspended imposition of the sentence and placed her on formal probation for
three years.  One of the conditions was
that she serve 120 days in custody on weekends.

            On
April 12, 2000, the trial
court summarily revoked defendant’s probation and issued a bench warrant.  The probation department alleged that
defendant never reported for weekend custody or for probation appointments.

            On
January 9, 2001, defendant
was located and admitted violating her probation.  The trial court reinstated probation.

            On
June 25, 2002, the trial
court again summarily revoked defendant’s probation and issued a bench warrant.
 The probation department alleged that
defendant had failed to pay $1,323.15 in victim restitution and fines.

            Appellant
was not located until March 10, 2010.
 At that time she admitted violating her
probation.  The trial court reinstated
defendant’s probation, then ordered it terminated early and released defendant.


            On
September 27, 2011,
defendant filed a motion to set aside her guilty plea and dismiss the complaint
pursuant to section 1203.4.  The trial
court heard the motion on October 13,
2011.  At that time, the
court denied the motion on the ground that defendant had not complied with the
terms of her probation and still owed $1,023.15 in fines.  This appeal followed.

>Discussion


            Defendant
contends that the trial court erred in denying her href="http://www.mcmillanlaw.com/">motion for relief under section 1203.4,
subdivision (a). 

Section 1203.4,
subdivision (a) provides:  “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 . . . .”  (Italics
added.)

In this case, the
trial court denied defendant’s motion because, “She’s paid a whopping $300 and
still owes $1,023.15.  She didn’t comply
with any of the terms of her probation.” 
The court further explained “So I’m denying it for all those
reasons.  She didn’t successfully
complete it.  She never fulfilled the
terms.  She revoked twice, she had a Term
1 violation, and the fact that the Court just said, heck, we are tired of
handling this case, it’s just old, and revoked and terminated, doesn’t fit the
code.  So the request is denied.”

In >Johnson, supra,  211 Cal.App.4th 252, this court held that, based
on the legislative intent behind section 1203.4, a defendant who seeks to set
aside a guilty plea based on his or her early “discharge” from probation must
establish not the mere early termination of probation, but that the probation
was terminated because of defendant’s good conduct.  â€œIf the Legislature had intended to confer the
reward of dismissal upon anyone whose period of probation had been terminated
early, it could easily have said as much. Instead, the crucial question is ‘why
was the probation terminated early.’  [Citation.]”
 (Id.
at p. 263)  “Relief under Penal Code
section 1203.4 is intended to reward an individual who successfully completes
probation by mitigating some of the consequences of the conviction.  [Citations.]  â€˜â€œâ€˜The expunging of the record of conviction
is, in essence, a form of legislatively authorized certification of complete
rehabilitation based on a prescribed showing of exemplary conduct during the
entire period of probation.’”’  [Citations.]”  (Id. at
p. 260) 

Here, defendant
has not established that she was “discharged” from probation as that term has
been defined in Johnson.  For this reason, we affirm the trial court’s
ruling denying her section 1203.4 motion.

Disposition

The trial court’s
order denying defendant’s motion under section 1203.4 is affirmed.

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

RAMIREZ                             

                                                P.
J.

 

 

We concur:

 

MILLER                                

                                             J.

 

CODRINGTON                    

                                             J.