Filed 8/23/17 P. v. Montoya CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

LAURIE V. MONTOYA,

Defendant and Appellant.
H043419
(Santa Clara County
Super. Ct. No. 89195)

Defendant Laurie V. Montoya challenges the superior court’s denial of her Penal Code section 1170.18 petition seeking to have her 1983 felony conviction for possession of PCP (Health & Saf. Code, § 11377, subd. (a)) redesignated as a misdemeanor. The Attorney General asserts that the appeal is “moot” because defendant’s 1983 conviction had already been reduced to a misdemeanor under section 17 in 2007. The record does not support the Attorney General’s claim. He concedes that the trial court’s rationale for denying defendant’s motion was erroneous and that reversal is required if the matter is not moot. We agree that the superior court erred, and we reverse the court’s order.


I. Background
In July 1983, defendant pleaded guilty in case No. 89195 to felony possession of PCP, misdemeanor being under the influence of PCP (Health & Saf. Code, § 11550), and residential burglary (§ 459). She was placed on probation for three years on condition that she serve a year in jail and complete a drug treatment program. In November 1983, defendant was granted probation in case No. 90734 (a forgery (§ 470) case) on the same conditions.
In June 2007, defendant made a motion under section 1203.4 and under section 17 in case No. 89195, case No. 90734, and one other case. Her motion does not appear in the appellate record. Using a form, the probation department recommended that in case No. 89195 the court grant the section 1203.4 motion and deny the section 17 motion. The department checked two checkboxes on the form as the reasons for its recommendation: (1) “New offense(s) following probation,” and (2) “Conviction(s) is a non-alternative felony.” The department provided an explanatory note: “The defendant completed Probation successfully and paid fines and fees in full. The defendant’s conviction of Section 459 PC is a non-alternative Felony. The defendant also continued to commit more drug offenses after this grant of Probation and completed her last grant of Probation in November of 1994. Based on such, the Record Reduction [(section 17)] is denied and the Record Clearance [(section 1203.4)] is granted.”
At the hearing on defendant’s 2007 motion, the court granted her section 17 and section 1203.4 motions in the two other cases, but it granted only her section 1203.4 motion in case No. 89195. The court explained: “[T]here’s one case that is a nonalternative felony so I’m unable to grant the Section 17 in that case.” “In [case No. 89195], it is a nonalternative felony. I have no power to grant the Section 17. The 1203.4 is granted. The Section 17 is denied.” The clerk’s minutes are consistent with the reporter’s transcript; they reflect that the section 1203.4 motion was granted and the section 17 motion was denied. The court’s written order, on a form with checkboxes, granted the section 1203.4 motion and denied the section 17 motion.
In November 2015, defendant filed a petition for redesignation of her 1983 possession of PCP conviction as a misdemeanor. The superior court denied her petition because “any conviction was expunged pursuant to Penal Code §1203.4 by Court order on June 14, 2007,” and “Penal Code §1170.18 makes no provision for misdemeanor treatment of felony convictions after those convictions have been set aside and the accusations dismissed.” Defendant’s January 2016 motion for reconsideration was also denied. She filed an untimely notice of appeal, but this court granted relief from default and accepted a notice of appeal from the superior court’s order denying her petition.

II. Analysis
In People v. Tidwell (2016) 246 Cal.App.4th 212 (Tidwell), this court held that the prior grant of a section 1203.4 motion does not preclude a defendant from obtaining redesignation of a felony conviction as a misdemeanor under section 1170.18. (Tidwell, at pp. 219-220.) The Attorney General acknowledges this court’s holding in Tidwell and concedes that the superior court’s rationale for denying defendant’s motion was erroneous.
However, the Attorney General asserts that defendant’s appeal is “moot.” This mootness claim is based on a misinterpretation of the record of the 2007 hearing. The Attorney General claims that the court’s order denying defendant’s section 17 motion in case No. 89195 applied to only the burglary count, not the possession count. The one-page reporter’s transcript of the 2007 hearing is not susceptible of this interpretation. While the reason that the court stated at the 2007 hearing applied to only the burglary count, the court’s order plainly applied to defendant’s motions as a whole in case No. 89195. The court did not parse the counts in case No. 89195 separately. The clerk’s minutes and the court’s written order also did not parse the counts separately in case No. 89195. The section 17 motion was unambiguously denied in case No. 89195, which included both the burglary count and the possession count. Hence, we reject the Attorney General’s mootness contention.
Since the superior court’s rationale for denying defendant’s petition was erroneous under Tidwell, we reverse the court’s order and remand this matter for the court to reconsider defendant’s petition.

III. Disposition
The order is reversed, and the matter is remanded with directions to reconsider the merits of defendant’s section 1170.18 petition.






_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P. J.






_____________________________
Bamattre-Manoukian, J.













People v. Montoya
H043419