Filed 2/25/14 P. v. Carlton CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B247465

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. NA071567)
         v.

JAMES CARLTON,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Mark C. Kim, Judge. Reversed and remanded with the directions.
         William P. Daley for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       James Carlton appeals the order entered after judgment denying his petition for
a dismissal of the judgment pursuant to Penal Code section 1203.4, subdivision (a)(1),
after he pled guilty to attempting to commit lewd or lascivious acts with a child under the
age of 14. (Pen. Code, §§ 664, 288, subd. (a)).1
       He contends that the trial court was compelled to order the dismissal as neither the
trial court nor the People denied appellant had fulfilled the terms and conditions of
probation and the offense of attempted lewd and lascivious acts with a child under the
age of 14 was not an excluded offense listed in section 1203.4, subdivision (b).
                                     BACKGROUND
       On May 17, 2007, appellant was convicted after a certified plea of guilty
to attempted lewd or lascivious conduct with a child and was granted three years of
formal probation.2 His probation supervision was transferred to a county probation
officer in San Diego, California.
       The probation report, as well as a psychological evaluation in the file, reveal that
appellant was arrested for lewd conduct after he contacted a girl who told him she was
13 years of age online in an Internet chat room. Discovering her father would be out of
town, appellant made arrangements to go to the girl’s residence. Unbeknownst to
appellant, the 13-year-old female was an National Broadcasting Company (NBC) decoy
who was attempting to uncover pedophiles who were looking for underage women
online. When appellant arrived at the girl’s residence, he was confronted by an NBC
moderator and arrested by the Long Beach Police Department.
       Section 288, subdivision (a), provides that “[a]ny person who willfully and lewdly
commits any lewd or lascivious act, including any of the acts constituting other crimes



1
       All further statutory references are to the Penal Code unless otherwise designated.
2
        We take judicial notice of the contents of the superior court file in the Los Angeles
County Superior Court case No. NA071567. (Evid. Code, §§ 452, subd. (d), 459, subd.
(a)(1).) We have given the parties notice of our intention to take judicial notice of the
superior court file.

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provided for in Part 1, upon or with the body, or any part or member thereof, of a child
under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust,
or passions, or sexual desires of that person or of the child, is guilty of a felony and shall
be Punished by imprisonment in the state prison for three, six, or eight years.”
       Sometime thereafter, appellant apparently completed probation. On January 17,
2013, he filed a “Petition for Dismissal” asking for a reduction of his offense to a
misdemeanor and for a dismissal of the judgment pursuant to section 1203.4. In the
petition, he declared under penalty of perjury he was not serving a sentence for any other
offense, he was not on probation for another offense, nor was he charged with the
commission of any crime. Further, he asserted that he had fulfilled the conditions of his
probation during the entire period thereof.
       On that same day, January 17, 2008, the trial court read and considered the
petition in appellant’s absence and denied the petition. No reason for the denial was
stated on the petition or in the trial court’s minute order evidencing the denial of the
petition.
       On March 13, 2013, appellant filed a notice of appeal from the trial court’s order.
                                       DISCUSSION
       In his opening brief, appellant contends he has done all that is necessary to comply
with the requirements of section 1203.4.3 He cites the decision in People v. Lewis (2006)



3
        Section 1203.4, subdivision (a)(1) provides: “In any case in which 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 the interests of justice, determines that a defendant
should be granted the relief available under this section, the defendant shall, at any time
after the termination of the period of probation, if he or she is not then serving a sentence
for any offense, on probation for any offense, or charged with the commission of any
offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea
of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court
shall thereupon dismiss the accusations or information against the defendant and except
as noted below, he or she shall thereafter be released from all penalties and disabilities

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146 Cal.App.4th 294 (Lewis) to demonstrate error. Therein, the Lewis court observed
that while a person suffering a conviction for violation of section 288, subdivision (a),
is specifically excluded by statute from the advantages of section 1203.4, a person
convicted of an attempt of that offense is eligible for a dismissal. (Lewis, supra,
at p. 297.)
       When a defendant has fulfilled the conditions of probation for the entire
probationary period, he is entitled as a matter of right to have the plea or verdict of
guilty changed to one of not guilty, to have the proceedings expunged from the record
and to have the accusations dismissed. (People v. Covington (2000) 82 Cal.App.4th
1263, 1266.)
       On appeal, the Attorney General agrees that the decision in Lewis generally is a
proper statement of the law. However, the Attorney General speculates that the problem
with appellant’s petition is that appellant failed in the trial court to attach to his petition
any proof that he had fulfilled all the terms and conditions of probation. The court in
Lewis, without a full discussion of that issue, placed the burden on the People and the
trial court to verify a defendant’s compliance with all the terms and conditions of his
probation. But the court in People v. Ignazio (1955) 137 Cal.App.2d Supp. 881 (Ignazio)


resulting from the offense of which he or she has been convicted, except as provided in
Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right, if any, to petition for a
certificate of rehabilitation and pardon. The probationer may make the application and
change of plea in person or by attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any other offense, the prior
conviction may be pleaded and proved and shall have the same effect as if probation had
not been granted or the accusation or information dismissed. The order shall state, and
the probationer shall be informed, that the order does not relieve him or her of the
obligation to disclose the conviction in response to any direct question contained in any
questionnaire or application for public office, for licensure by any state or local
agency, or for contracting with the California State Lottery Commission. [¶] . . . [¶]
(b) Subdivision (a) of this section does not apply to . . . any violation of subdivision (c) of
Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j)
of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant
to subdivision (d) of Section 261.5. . . .”

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held in a more complete, reasoned discussion held that a section 1203.4 petitioner has the
burden of proof in providing the trial court with reliable evidence, other than his own
statement under penalty of perjury in the petition, that he has fully and timely complied
with the terms and conditions of his probation.
       With respect to the issue of the burden of proof, we agree with the decision in
Ignazio. (See also People v. Johnson (2012) 211 Cal.App.4th 252, 261 [citing Ignazio on
this point with approval].) Further, we note there is no declaration attached to the
petition indicating that appellant timely served Los Angeles Office of the District
Attorney with notice of the petition. (§ 1203.4, subd. (e).)
       However, since no reason is stated for denial of the petition, we cannot determine
whether the trial court erred. We will reverse the trial court’s order and remand the
matter to the trial court to hold a hearing to reconsider the petition. Appellant and/or his
attorney may attend the hearing.
       On remand, appellant will provide the trial court with proof of his full and timely
compliance with the terms and conditions of his probation.
       Fifteen days prior to the hearing, appellant is to file and serve a notice of his
petition on the Los Angeles County Office of the District Attorney. That notice must
contain a copy of the proof of his timely fulfillment of the terms and conditions of his
probation.
       If appellant complies with the directions in this opinion, and unless the People
provide the trial court with other available grounds for refusing to grant appellant relief at
the hearing, the trial court shall grant the petition.




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                                     DISPOSITION
      The order under review is reversed. The matter is remanded to the trial court for
further proceedings in compliance with the directions contained in this opinion.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KLEIN, P. J.


We concur:



             CROSKEY, J.




             ALDRICH, J




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