P. v. Richey
Filed 8/12/13 P. v. Richey CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
CRAIG ANTHONY RICHEY,
Defendant and Appellant.
B247653
(Los Angeles County Super. Ct.
No. A593464)
APPEAL from
a judgment of the Superior Court of
County, James R. Brandlin, Judge.
Affirmed.
Murray A.
Rosenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
_____________________________
Defendant Craig Anthony Richey appeals from the order of
February 13, 2013, denying his motion under the provisions of Penal Code
section 1203.4
title="">[1] to set aside his 1993 conviction. We affirm the order.
According
to the superior court file in case No. A593464, defendant plead guilty on April
23, 1993, to first degree robbery (§
211) with personal use of a firearm (§ 12022.5, subd. (a)). Defendant was sentenced to the high term of
six years for the robbery with a two-year enhancement for the firearm use
allegation. Additional counts of
burglary (§ 459) and assault with a deadly weapon (§ 245, subd. (a)) were
dismissed.
On February
11, 2013, defendant filed a petition for postjudgment relief pursuant to section
1203.4. Although it is difficult to
discern the issue defendant raised in the section 1203.4 motion, it appears he
is motivated to seek relief because his 1993 California conviction is being
used to enhance defendant’s latest felony conviction in another
jurisdiction. The trial court denied the
motion on February 13, 2013, ruling that defendant had not made a showing of
entitlement to relief under section 1203.4.
This court
appointed counsel to represent
defendant on appeal from the order. On
June 3, 2013, appointed counsel filed a brief raising no issues, asking this
court to independently review the record for arguable appellate contentions
under People v. Wende (1979) 25
Cal.3d 436. Defendant was advised of his
right to file a supplemental brief within 30 days. Defendant filed a supplemental motion on
appeal on July 8, 2013, and a supplemental brief on July 30, 2013.
Neither of
defendant’s supplemental filings discuss the only issue presented by the
appeal, which is whether the trial court properly denied relief under section
1203.4. Section 1203.4, subdivision
(a)(1), is a remedial provision which allows a limited class of probationers to
set aside their pleas of guilty or no contest, or their conviction by jury,
provided various requirements are satisfied, including successful completion of
probation. The statute applies only to
probationers, not defendants who are committed to state prison. (People
v. Borja (1980) 110 Cal.App.3d 378, 382.)
“Stated another way, section 1203.4 applies to probationers, not
parolees or former prisoners. (
v. Jones (1985) 176 Cal.App.3d 120, 130–131.)†(People
v. Parker (2013) 217 Cal.App.4th 498, 502.)
It is
undisputed that defendant was not placed on probation in 1993, but he instead
was committed to state prison for
eight years. He is not within the class
of offenders eligible for relief under section 1203.4, and his request was
therefore denied.
We have
completed our independent review of the entirety of the appellate record. Our review reveals no arguable
(2000) 528 U.S. 259.)
KRIEGLER,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
name="_ftn1" title="">[1] All
statutory references are to the Penal Code.
