Filed 11/9/26 P. v. Petty CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B346745
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070863-01)
v.
DUSTIN JEFFREY PETTY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Emily Cole, Judge. Affirmed.
Nikhil Ramnaney, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Patricia Rosman, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
We find this matter appropriate for disposition by a
memorandum opinion in accordance with the California
Standards of Judicial Administration, section 8.1. (See People v.
Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum
opinions].)
On May 15, 2017, the People charged appellant Dustin
Petty with driving under the influence of alcohol causing bodily
injury in violation of Vehicle Code1 section 23153, subdivision (a);
driving with a blood alcohol content of 0.08 percent causing
bodily injury in violation of section 23153, subdivision (b), with
an enhancement pursuant to section 23578 that his blood alcohol
concentration was 0.15 percent or higher; and driving without a
valid license in violation of section 12500, subdivision (a).
On September 18, 2017, pursuant to a plea agreement,
Petty pled guilty to driving with a blood alcohol content of 0.08
percent causing bodily injury and admitted the enhancement that
his blood alcohol concentration was 0.15 percent or higher (count
two). Petty waived his right to a speedy sentencing hearing and
was not sentenced on that date. Instead, the trial court stated it
was putting the sentencing over for 18 months so Petty could
“accomplish a number of obligations.” The court ordered Petty to
enroll in an 18-month alcohol program within 30 days and
provide proof of enrollment on the next court date; install an
ignition interlock device within 30 days and provide proof of
installation on the next court date; complete 40 days of
community service and provide proof of enrollment and progress
on the next court date; and enroll in the hospital and morgue
1 Undesignated statutory references are to the Vehicle Code.
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program within the next 30 days and file proof of enrollment on
the next court date. The minute order states: “The plea
agreement includes a reduction to a misdemeanor upon
successful compliance with all the terms as set forth herein.” The
court orally told Petty that if he followed through with “all of
these obligations, as well as following the court’s terms and
conditions pending sentencing, he will earn the right to have
count 2 reduced to a misdemeanor. And, also, part of the
agreement, it would be a three-year grant of summary probation
from the date of sentencing on the misdemeanor. [¶] If, on the
other hand, Mr. Petty does not follow through with his
obligations, if he fails to follow through with all of these
obligations, any one of the obligations, or if he violates the law in
any way or violates any of the terms and conditions of his release
pending sentencing, he will lose the benefit of earning a
misdemeanor, he will end up with a felony conviction as to count
2 and it becomes an open plea to the court, and the court would
decide the appropriate sentence, and it could be anywhere from
time-served probation, up to three years in the state prison.” The
court set the next court date as March 20, 2018.
On March 20, 2018, Petty appeared and reported on his
progress. The trial court ordered him to complete an additional
20 days of community service for a total of 60 days and to appear
on March 19, 2019 to show further progress.
On April 19, 2019, Petty admitted that he had violated the
terms and conditions of his release pending sentencing. The trial
court found Petty was not in compliance with the terms and
conditions of his release pending sentencing and remanded him
into custody. On May 13, 2019, the trial court suspended
imposition of sentence and placed Petty on five years of formal
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probation and ordered him to serve 180 days in county jail, pay
various fines and fees, complete 40 days of community service,
and complete a three-month first-time offender alcohol program.
The remaining counts were dismissed.
On April 25, 2024, the trial court revoked Petty’s probation
and set a violation hearing for May 31, 2024. On May 31, 2024,
Petty submitted proof that he had completed the three-month
alcohol program and performed 77 of the required 320 hours of
community service. Probation remained revoked. The trial court
warned Petty that if he was not in full compliance with his
probation by the next court date, he would be remanded to
custody. The court set the next court date for September 4, 2024.
On September 4, 2024, the trial court reviewed Petty’s
progress report and informed him that probation would remain
revoked until he had satisfied all remaining conditions of
probation. On April 23, 2025, Petty submitted proof that he had
completed the hospital and morgue program and had completed
285 of the required 320 hours of community labor. Probation
remained revoked and he was ordered to return on May 14, 2025.
On May 14, 2025, almost eight years after his plea and
after five years of formal probation, Petty submitted proof that he
had completed all the required community service hours, the last
remaining condition of probation. The court revoked and
reinstated probation which expired that day.
That day Petty asked the court to reduce the felony
conviction to a misdemeanor pursuant to Penal Code section 17,
subdivision (b) and to dismiss the charge pursuant to Penal Code
section 1203.4. Petty asked for relief in the interest of justice.
He stated: “I have a job offer pending background check for good
employment . . . . [I]t’s required by the company that I pass an
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ATF background check. [¶] This job is a great new opportunity in
a new area of work for me. It will prove to be a good career choice
for me. Your Honor, I want to thank this Court for all of your
patience during my grant of probation and I’m so happy it’s over.
I’d very much like to put this behind me and move forward in life
with a good job. [¶] Thank you very much.” On June 3, 2025, the
trial court denied both requests in a minute order: “The Court
having read and considered the petition pursuant to Penal Code
sections 17(b) and 1203.4, rules as follows: [¶] Petition is denied.
[¶] Order for Dismissal is signed and filed.”
Petty timely appealed.
DISCUSSION
I. The Trial Court Did Not Err in Declining to Find
Defendant Eligible for Mandatory Dismissal of the
Charges Pursuant to Penal Code Section 1203.4.
Petty contends the trial court erred in refusing to find him
eligible for mandatory dismissal as he fulfilled the conditions of
probation during the entire period of probation.
Where the propriety of a trial court’s ruling on a petition
for relief under Penal Code section 1203.4 turns on the
interpretation of the statute, the issue presents a question of law
reviewed de novo. (People v. Seymour (2015) 239 Cal.App.4th
1418, 1428.)
Penal Code section 1203.4, subdivision (a)(1) provides in
relevant part: “When 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 in the
interest of justice, determines that a defendant should be granted
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the relief available under this section, the defendant shall . . . be
permitted by the court to withdraw their 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, the defendant shall
thereafter be released from all penalties and disabilities resulting
from the offense of which they have been convicted.” (Pen. Code,
§ 1203.4, subd. (a)(1).)
Penal Code section 1203.4, subdivision (c)(1) also provides:
“Except as provided in paragraph (2), subdivision (a) does not
apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivision (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.” (Pen.
Code, § 1203.4, subd. (c)(1).) Section 12810 lists the offenses for
which traffic violation points will be applied against a driver’s
license. Included in the listed offenses is a violation of section
23153, the offense to which Petty pled guilty. (§ 12810, subd. (b).)
“If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and
in the interest of justice, may order the relief provided pursuant
to subdivision (a) to that defendant.” (Pen. Code, § 1203.4, subd.
(c)(2).) Under the plain language of the statutes, Petty is not
entitled to mandatory Penal Code section 1203.4 relief. He is
entitled to relief only if a court, in the exercise of its discretion,
finds such relief to be in the interest of justice. The trial court
did not err in declining to afford Petty mandatory relief under
Penal Code section 1203.4.
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II. The Trial Court Did Not Abuse Its Discretion in
Declining to Dismiss the Charge in the Interest of
Justice.
Where a court denies relief under the discretionary
“interest of justice” provision, the ruling is reviewed for abuse of
discretion. (People v. Allen (2019) 41 Cal.App.5th 312, 322–323,
330.) In reviewing a trial court’s order for abuse of discretion, we
presume the order is correct, indulge all intendments and
presumptions to support it on matters as to which the record is
silent, and the appellant bears the burden to affirmatively show
error. (Id. at p. 330.) “ ‘The court is presumed to have considered
all of the relevant factors in the absence of an affirmative record
to the contrary.’ ” (Ibid.)
Here, the trial court summarily denied Petty’s request for
relief, including discretionary relief. Petty argues that the court’s
silence “reflects no discernible exercise of discretion” and
warrants, at a minimum, remand as the default remedy unless
the record clearly demonstrates that the trial court would have
reached the same conclusion if it had properly exercised its
discretion.
We disagree. It is Petty’s burden to show error. “We
presume that the trial court engaged in the appropriate analysis
to determine whether granting [defendant’s] requested relief was
in the interest of justice.” (People v. Woodward (2025)
116 Cal.App.5th 379, 399 (Woodward).) As in Woodward,
nothing in the appellate record rebuts this presumption. The
minute order, as well as the signed form order denying dismissal,
states the trial court read and considered Petty’s request.
Nothing in the record demonstrates that the trial court did not
consider the merits of Petty’s motion, did not recognize it
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possessed discretion to grant the motion in the interest of justice,
or relied on improper facts or information in denying the request.
Petty has failed to bear the burden to affirmatively show error by
the trial court.
III. The Trial Court Did Not Abuse Its Discretion in
Declining to Reduce the Felony Conviction to a
Misdemeanor.
Penal Code section 17, subdivision (d) authorizes a trial
court to declare a wobbler offense—an offense punishable as
either a felony or a misdemeanor in the discretion of the court—
to be a misdemeanor in certain circumstances. (Woodward,
supra, 116 Cal.App.5th at p. 388.) The offense to which Petty
pled guilty—driving under the influence causing bodily injury in
violation of section 23153, subdivision (b)—is a wobbler. (§ 23554
[a violation of § 23153, subd. (b), is punishable by either
imprisonment in state prison or confinement in county jail no
exceeding one year].)
A trial court’s ruling on an application to reduce a felony
wobbler offense to a misdemeanor is reviewed for abuse of
discretion. A reviewing court will not disturb the decision unless
the defendant clearly demonstrates the ruling was irrational or
arbitrary or that the trial court misunderstood its sentencing
discretion. (People v. Tran (2015) 242 Cal.App.4th 877, 887;
People v. Lee (2017) 16 Cal.App.5th 861, 866 (Lee).) In the
absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives and its
discretionary determination will not be set aside on review.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–
978.)
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Here, the minute order states the court had read and
considered Petty’s request. Petty bases his contention that the
trial court abused its discretion on a silent record. That is
insufficient. He has neither shown the trial court acted in an
arbitrary or capricious manner nor overcome the presumption
that the reviewing court, without more, must affirm on a silent
record. (Lee, supra, 16 Cal.App.5th at p. 867.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
SCHERB, J.
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