Filed 6/14/16 P. v. Andrade CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042520
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS991645A)

         v.

DANIEL CORREA ANDRADE,

         Defendant and Appellant.



         In 2000, defendant Daniel Correa Andrade pleaded guilty to felony possession of a
controlled substance. (Health & Saf. Code, § 11350.) He was placed on probation for
three years. In 2011, the trial court granted defendant’s petition for dismissal of the
offense pursuant to Penal Code section 1203.4.1
         In 2015, following the passage of Proposition 47, defendant applied to have his
conviction designated as a misdemeanor pursuant to section 1170.18, subdivision (f).
The trial court found it could not redesignate a conviction that had previously been
dismissed and denied defendant’s application “without prejudice.” The trial court noted
that defendant could put the matter back on calendar if an appellate court later held that
dismissal of a felony conviction pursuant to section 1203.4 does not preclude a trial court
from granting an application pursuant to section 1170.18, subdivision (f).

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       On appeal, defendant contends and the Attorney General concedes that the
trial court could have redesignated his conviction as a misdemeanor pursuant to
section 1170.18, subdivision (f) despite the fact that the conviction had been dismissed
pursuant to section 1203.4.
       Recently, in People v. Tidwell (2016) 246 Cal.App.4th 212 (Tidwell), this court
held that dismissal of a felony conviction pursuant to section 1203.4 does not preclude
a trial court from granting an application pursuant to section 1170.18, subdivision (f).
(Tidwell, supra, at p. 220.) In Tidwell, this court noted that there are a number of
limitations on the effect of a dismissal pursuant to section 1203.4. (Tidwell, supra, at
p. 217.) For instance, section 1203.4, subdivision (a)(1) provides that “in any subsequent
prosecution of the defendant for any other offense, the prior conviction may be pleaded
and proved . . . .” (See Tidwell, supra, at p. 217.) This court further noted that there
was “no ambiguity in the language of section 1170.18 that allows a person ‘who has
completed his or her sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under this act had this act been
in effect at the time of the offense,’ to apply to the trial court in order to have the felony
conviction or convictions designated as misdemeanors. (§ 1170.18, subd. (f), italics
added.)” (Tidwell, supra, at p. 218.) This court found “[n]othing in the language of
section 1170.18” to support a conclusion that a dismissal under section 1203.4 would
preclude a court from redesignating a felony conviction, particularly since dismissal of a
conviction under section 1203.4 does not eliminate the potential for “continuing or future
consequences” of such a conviction. (Tidwell, supra, at p. 219.)
       Since the trial court denied defendant’s application for redesignation of his felony
conviction without prejudice, we will remand the matter so the trial court can determine
the merits of the petition.




                                               2
                                     DISPOSITION
       The June 4, 2015 order denying defendant’s application to have his felony
conviction designated as a misdemeanor pursuant to Penal Code section 1170.18 is
reversed, and the matter is remanded for consideration of the merits of the application.




                                             3
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.
