Filed 4/3/17 P. v. Vaca 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

VICTOR NOEL VACA,

Defendant and Appellant.
H043456
(Santa Clara County
Super. Ct. No. F1033234)
Defendant Victor Noel Vaca appeals from an order denying his Penal Code section 1170.18 petition to designate as a misdemeanor a felony conviction that was previously dismissed under Penal Code section 1203.4. The Attorney General concedes it was error to deny the petition. For the reasons explained, we find the concession appropriate and agree the court erred. We will therefore reverse the order.
BACKGROUND
Defendant was convicted of a felony on June 10, 2010, when he pled guilty to second degree burglary (Pen. Code §§ 459, 460, subd. (b).) (Unspecified statutory references are to the Penal Code.) The court imposed a 172-day jail term, and placed defendant on formal probation for a period of three years.
In March 2013, the court terminated defendant’s probation early and dismissed the felony burglary charge under section 1203.4 (the statute allowing a defendant who has successfully completed probation to have the underlying charge dismissed).
In 2014, the voters approved Proposition 47, a ballot initiative that made changes to the Penal Code rendering certain felony offenses––including the burglary offense of which defendant was convicted here––misdemeanors. Proposition 47 also added section 1170.18, which allows a person to petition the court to designate a felony conviction a misdemeanor if the offense would have been a misdemeanor had Proposition 47 been in effect at the time the conviction occurred.
In January 2016, defendant petitioned the trial court under section 1170.18 to designate his conviction a misdemeanor. On March 21, 2016, the court denied defendant’s section 1170.18 petition on the ground that because the conviction had been dismissed in 2013, there was no existing conviction that could be designated a misdemeanor.
Defendant timely appealed.
DISCUSSION
Defendant correctly argues and the Attorney General concedes that under this court’s decision in People v. Tidwell (2016) 246 Cal.App.4th 212 (Tidwell), he cannot be denied section 1170.18 relief solely because the conviction in question was previously dismissed under section 1203.4.
Tidwell held that an order under section 1203.4 allowing a defendant to withdraw a guilty plea to a felony and dismissing the charge does not preclude subsequent reduction of the conviction to a misdemeanor under section 1170.18, because a dismissal under section 1203.4 does not expunge a defendant’s record or otherwise cancel the potential for continuing or future consequences of the conviction. (Tidwell, supra, 246 Cal.App.4th at p. 219.) A defendant whose qualifying felony conviction has been dismissed under section 1203.4 is therefore eligible for relief under both the plain language and the intent of section 1170.18. (Tidwell, at p. 219.) The court erred in concluding otherwise.
DISPOSITION
The order denying defendant’s petition under section 1170.18 to designate his felony conviction a misdemeanor is reversed and the matter is remanded for a new hearing on the petition.

____________________________________
Grover, J.




WE CONCUR:




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Rushing, P. J.




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Premo, J.







H043456 -People v Vaca