Filed 9/30/26 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E086817
v. (Super.Ct.No. FVI21002483)
HENRY SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Zahara T.
Arredondo, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Robin Urbanski and Laura
Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
1
After completing probation, Henry Smith petitioned under Penal Code section
1203.4 to withdraw his guilty plea and have the charge dismissed. (Unlabeled statutory
references are to the Penal Code.) The trial court denied the petition without prejudice,
and Smith appealed. We affirm.
BACKGROUND
In September 2021, the People filed a felony complaint alleging that Smith
committed two counts of second degree robbery. (§ 211.) The complaint further alleged
that he personally used a deadly or dangerous weapon during the commission of the
robberies. (§ 12022, subd. (b)(1).)
Pursuant to a negotiated disposition, Smith pled guilty to assault with a deadly
weapon (§ 245, subd. (a)(1)), and the court dismissed the robbery counts and placed
Smith on probation for 24 months on various terms and conditions.
In March 2022, Smith admitted that he had violated the terms of his probation.
The court ordered that he serve 200 days in jail with credit for time served, and the court
continued his probation with the additional condition that he enter a rehabilitation
program at the Salvation Army (the “program”).
In September 2022, the People filed a petition to revoke Smith’s probation,
alleging that he had violated the terms of his probation by failing to report to the
probation department and by leaving the program. The court revoked Smith’s probation
and issued a bench warrant for his arrest.
2
Smith initially denied the probation violations but subsequently admitted that he
had violated the terms of his probation, and the court ordered that he serve 269 days in
jail with credit for time served. The court again continued Smith on probation and
ordered that he “enter and complete the [program],” “submit proof of completion to the
probation officer,” and “not leave the program without permission.” His probation was
set to expire on June 15, 2024.
In July 2025, after Smith completed probation, he petitioned the court to withdraw
his guilty plea and have the charge dismissed pursuant to section 1203.41. He attached a
declaration describing the facts underlying his conviction, and he acknowledged his
probation violations. Smith also attached a “testimony of transformation,” support
letters, certificates of recognition from the program, and two college diplomas. He had
been sober since February 12, 2023.
In Smith’s declaration, he explained that he wanted to apply to become a certified
chemical dependency counselor assistant in Ohio, and he needed to have his felony
conviction reduced to a misdemeanor and “dismissed if possible.” He said that he was
pursuing a master’s degree, had “296 hours of volunteer work,” and was part of the
homeless outreach team at the Salvation Army.
In August 2025, the probation department filed a supplemental report,
recommending that the court deny Smith’s petition. The probation officer reported that
Smith had filed a petition under section 1203.41, but that section does not apply to
defendants who are granted probation. The probation officer noted that Smith “submitted
3
various character letters as well as certificates of completion of the Salvation Army Drug
Treatment Program.” The probation officer did not believe that Smith was “eligible for
relief pursuant to [section] 1203.4 at this time.”
At the hearing on Smith’s petition, the court stated that Smith was requesting relief
under section 1203.4, and the court confirmed that the parties had received the probation
department’s recommendation. The court then ruled as follows: “And the Court, again,
has reviewed the recommendation. I do see that Mr. Smith recently on September 7th,
2021 took a plea to a Penal Code Section 245 (a) (1) felony. And the Court, in reviewing
the memo sees that on March 4th, 2022, defendant’s grant of probation was revoked,
reinstated to expire on January 4th, 2024, and modified the terms to complete Salvation
Army Drug Treatment Program. [¶] He violated his probation again for leaving the
Salvation Army Drug Treatment Program without permission. And on February 16th,
2023, probation was reinstated to expire on June 15, 2024. He was accepted back into
Salvation Army, completed the program on August 16th. [¶] This Court, being that he
has violated in the past, at this time and only at this time, the Court is denying without
prejudice. [¶] Mr. Smith, if you would like to re[-]request this in the future, you may
very well do so. But at this time, with what the Court has before it, the Court cannot in
its discretion and in the interest of justice grant this request.”
DISCUSSION
Smith first argues that relief under section 1203.4 is mandatory because he
“fulfilled the terms of probation.” Smith next argues that the court abused its discretion
4
because “the trial court erroneously failed to give his [petition] due consideration by
denying his request solely on his past violations of probation.” We reject both arguments.
Under subdivision (a)(1) of section 1203.4, a court shall permit the defendant to
withdraw their plea and shall dismiss the charges “‘when the defendant (1) “has fulfilled
the conditions of probation for the entire period of probation,” (2) “has been discharged
prior to the termination of the period of probation,” or (3) “in any other case in which a
court, in its discretion and in the interests of justice, determines that a defendant should
be granted relief available under” section 1203.4.’” (People v. Woodward (2025) 116
Cal.App.5th 379, 398 (Woodward).)
Relying on People v. Chandler (1988) 203 Cal.App.3d 782, Smith appears to
argue that he qualifies for mandatory relief under section 1203.4 because he “fulfilled the
terms of probation.” The argument fails because Chandler involves the first scenario
under subdivision (a)(1) of section 1203.4, in which the defendant complies with the
conditions of probation throughout the probationary period. Smith violated the
conditions of his probation on multiple occasions, and he therefore did not fulfill his
conditions of probation for the entire period of probation. (People v. Guillen (2013) 218
Cal.App.4th 975, 991.) The second scenario likewise does not apply to Smith, because
he was not discharged before the termination of the period of his probation. (§ 1203.4,
subd. (a)(1).) He therefore may be granted relief only under the third scenario, if the
court “‘in its discretion and the interests of justice, determines he should be granted
relief.’” (Guillen, at p. 991.)
5
“In the third scenario where a trial court determines whether to grant section
1203.4 relief in the interest of justice, we review the trial court’s order under the abuse of
discretion standard of review.” (Woodward, supra, 116 Cal.App.5th at p. 399.) “‘In
reviewing a trial court’s order for an 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. [Citation.] “The
court is presumed to have considered all of the relevant factors in the absence of an
affirmative record to the contrary.”’” (Ibid.)
Relying on People v. McLernon (2009) 174 Cal.App.4th 569 (McLernon), Smith
argues that the court abused its discretion by denying his section 1203.4 petition because
the court “failed to give his [petition] due consideration by denying his request solely on
his past violations of probation.” McLernon is distinguishable.
The defendant in McLernon filed a motion in 2001 for relief under section 1203.4,
and the trial court denied the motion. (McLernon, supra, 174 Cal.App.4th at p. 572.) In
2007, the defendant again sought relief under section 1203.4, and the trial court denied
the petition on the basis that his 2001 motion had been denied for unsatisfactory
performance on probation. (Id. at p. 573.) The defendant subsequently sought relief
under section 1203.4 for a third time “on the ground that it was in the interests of justice
to grant the requested relief,” and he provided a “declaration in support of his motion.”
(Ibid.) He admitted that he had violated his probation, and he claimed that he had been
clean and sober since that violation. (Ibid.) “[H]e describe[d] his personal and
6
professional life … and his involvement in the community since his probation ended, and
explain[ed] that he want[ed] to have his conviction expunged so he [could] participate in
professional organizations, serve in certain elected positions, and be approved as a
registered permanent volunteer at a high school.” (Id. at pp. 573-574.) The trial court
denied his motion on the ground that it had “‘been submitted and denied on 3–06–01 and
6–05–07.’” (Id. at p. 574.)
The Court of Appeal reversed because the record “ma[de] clear” that the trial court
did not consider the merits of the defendant’s motion. (McLernon, supra, 174
Cal.App.4th at pp. 575, 577.)
The record in this case contains no such affirmative showing that the court failed
to consider the merits of Smith’s petition. On the contrary, the court noted that it had
reviewed the probation department’s report, which stated that Smith had “submitted
various character letters as well as certificates of completion of the Salvation Army Drug
Treatment Program.” And when the court announced its ruling, the court acknowledged
that Smith had completed the program. Moreover, by denying the petition without
prejudice, the court expressly left open the possibility that Smith may be granted relief in
the future, thereby acknowledging that Smith’s probation violations do not foreclose
relief. “Presuming the order is correct, and indulging all intendments and presumptions
to support the order on matters as to which the record is silent,” we conclude that Smith
“has failed to satisfy his burden to affirmatively show error by the trial court.”
(Woodward, supra, 116 Cal.App.5th at p. 400.)
7
DISPOSITION
The court’s August 22, 2025, order denying Smith’s petition under section 1203.4
is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAPHAEL
Acting P. J.
LEE
J.
8