Filed 10/24/13 P. v. Saway 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E054551

v.                                                                       (Super.Ct.No. RIF129653)

CHANTHON SAWAY,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Christopher P. Beesley and Peter

Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Chanthon Saway appeals from the trial court’s denial of

her motion to set aside her felony conviction pursuant to Penal Code1 section 1203.4.

We find no error and affirm the judgment.

                             PROCEDURAL BACKGROUND2

       On April 28, 2006, defendant pled guilty to felony unlawfully obtaining the

personal identifying information of another person (§ 530.5, subd. (a)) in case

No. RIF129653. In return, the remaining allegations were dismissed, and defendant was

placed on formal probation for a period of three years on various terms and conditions of

probation. On that same day, in case No. RIM466601, defendant pled guilty to

misdemeanor burglary (§ 459); in exchange, defendant was placed on informal summary

probation for a period of three years to run concurrent with her probation in case

No. RIF129653.

       On September 6, 2006, a misdemeanor complaint was filed in case

No. RIM487948 alleging that defendant had possessed methamphetamine (Health & Saf.

Code, § 11377, subd. (a)) and drug paraphernalia (Health & Saf. Code, § 11364). A

petition was also filed to withdraw defendant’s probation in case Nos. RIF129653 and

RIM466601 based on the new misdemeanor drug-related charges that were filed.

       On September 13, 2006, defendant pled guilty to the possession of

methamphetamine charge and admitted violating the terms of her probation in both cases.

       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2 The details of defendant’s criminal conduct are not relevant to the limited issue
she raises in this appeal, and we will not recount them here.


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In the identity theft case, the trial court reinstated formal probation along with the

condition that she serve 180 days in county jail. In the misdemeanor drug case, the trial

court denied probation and sentenced defendant to serve 180 days in county jail to run

concurrent with the custody term imposed in the identity theft case.

       On January 5, 2011, defendant filed a motion to set aside her felony identity theft

conviction pursuant to section 1203.4. Defendant claimed that she had successfully

completed probation; that she had voluntarily enrolled and completed a rehabilitation

program; and that she had enrolled in college to study business administration. She

further asserted that although she was living on food stamps, she had volunteered with

the “Meals on Wheels” program for the last two years to help others, and that she sought

expungement to gainfully be employed upon completion of her education and reunite

with her children.

       A hearing on defendant’s motion was held on January 21, 2011. The trial court

denied the motion but reduced the felony identity theft conviction to a misdemeanor

pursuant to section 17, subdivision (b). The trial court found that defendant was not

entitled to section 1203.4 relief “because she violated that probation, and she admitted a

Term 1 violation and she picked up a new offense. Further, she didn’t manage to pay off

the fines. She finally did three years later in ’09. So on that one, she’s not entitled to

1203.4.” The trial court, however, granted defendant section 1203.4 relief in the

misdemeanor drug case (case No. RIM487948).




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                                       DISCUSSION

       Defendant contends that the matter should be remanded because the trial court

failed to consider whether she was entitled to section 1203.4 relief based on the “interest

of justice” exception.

       Section 1203.4, subdivision (a)(1), provides in relevant part: “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 [and] 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

resulting from the offense of which he or she has been convicted . . . .” (See also People

v. Johnson (2012) 211 Cal.App.4th 252, 259-260 (Johnson) [Fourth Dist., Div. Two].)

       “As the statutory language makes clear, there are three situations in which a

defendant may be entitled to have his or her conviction dismissed.” (People v. McLernon

(2009) 174 Cal.App.4th 569, 574 (McLernon).) In the first two situations, where the

defendant has successfully completed the entire period of probation or has been

discharged from probation prior to termination, the defendant is entitled to mandatory


                                              4
relief. (Ibid.; see also Johnson, supra, 211 Cal.App.4th at pp. 260, 264; People v. Field

(1995) 31 Cal.App.4th 1778, 1787; People v. Butler (1980) 105 Cal.App.3d 585, 587.) If

the defendant comes within the third situation, relief is entirely discretionary. (People v.

Mgebrov (2008) 166 Cal.App.4th 579, 587.) “The last requires the court to determine

whether, in its discretion and the interests of justice, the relief should be granted.”

(McLernon, at p. 574.) “[I]n determining whether to grant relief under the discretionary

provision, the trial court may consider any relevant information, including the

defendant’s postprobation conduct.” (Id. at p. 577.)

       “[A] trial court does not abuse its discretion unless its decision is so irrational or

arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33

Cal.4th 367, 377.) If the record shows that a trial court misunderstood the scope of its

discretion, then we must remand for an informed exercise of the power. (Cf. People v.

Fuhrman (1997) 16 Cal.4th 930, 944 [discretion to strike recidivist finding].)

       Defendant here sought relief based upon the third situation, i.e., the motion asked

the trial court to find that relief should be granted in the interests of justice based upon a

five-year crime-free period, completion of three years of probation, rehabilitation, and a

“desire to seek future professional employment.”

       On appeal, defendant argues that reversal and remand is required because the trial

court “refused to consider these ‘interests of justice’ factors and denied relief solely on

[defendant]’s unsatisfactory performance on probation.” Defendant also claims that the

trial court “misunderstood its discretion because it erroneously believed that

[defendant]’s probation violation, alone, precluded section 1203.4 relief as a matter of


                                               5
law and, thus, relinquished its discretionary power to address the issue based on the

‘interests of justice.’” There is no merit to these claims.

       “When the question on appeal is whether the trial court has abused its discretion,

the showing is insufficient if it presents facts which merely afford an opportunity for a

difference of opinion. An appellate tribunal is not authorized to substitute its judgment

for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

“[D]iscretion is abused only if the court exceeds the bounds of reason, all of the

circumstances being considered.” (Ibid.) This rule requires that the reviewing court

engage in all intendments and presumptions in support of the decision and consider the

evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69

Cal.App.3d 999, 1015 [Fourth Dist., Div. Two].) It also requires that the party claiming

abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d

952, 958.)

       A grant of probation is “‘a bargain made by the People, through the Legislature

and the courts, with the convicted individual, whereby the latter is in essence told that if

he complies with the requirements of probation, he may become reinstated as a law-

abiding member of society. [Citation.] As an additional inducement, the “removal of the

blemish of a criminal record” is held out through the provisions of Penal Code section

1203.4. [Citation.]’ [Citation.] ‘The expunging of the record of conviction is, in

essence, a form of legislatively authorized certification of complete rehabilitation based

on a prescribed showing of exemplary conduct during the entire period of probation.’”




                                              6
(People v. Covington (2000) 82 Cal.App.4th 1263, 1270; see also Johnson, supra, 211

Cal.App.4th at pp. 261-262.)

       Here, the trial court did not disregard the evidence of defendant’s rehabilitation as

defendant claims. Defendant clearly presented the factors for the trial court’s

consideration. The trial court simply found that defendant’s nonexemplary conduct

during the entire period of probation outweighed the evidence of defendant’s relatively

short-lived rehabilitation. The record also fails to demonstrate that the trial court

misunderstood the scope of its discretion. Defendant had pointed out in her motion for

relief that the trial court had discretion to grant relief in the interests of justice.

Defendant also pointed out in her motion that the court should grant relief based on the

following factors: (1) completing probation; (2) remaining crime-free since 2006;

(3) pursuing economic opportunities; (4) completing a rehabilitation program;

(5) volunteering and helping others; and (6) attending college for business administration.

       Defendant’s arguments do no more than highlight a difference of opinion about

the significance of the factors considered by the trial court in evaluating the interests of

justice rather than demonstrate that the trial court’s opinion was irrational. (See, e.g.,

McLernon, supra, 174 Cal.App.4th at p. 577 [“A request for relief under the interests of

justice provision of section 1203.4 necessarily will be based upon the facts as they exist

at the time of the request. Those facts may be very different at different times. For

example, at the time McLernon brought his first motion in 2001, he had been drug free

and crime free for only six years. By the time of the motion at issue in this appeal, he had




                                                 7
been drug free and crime free for 12 years”].) Defendant, therefore, fails to affirmatively

demonstrate an abuse of discretion.

       Defendant’s reliance on McLernon, supra, 174 Cal.App.4th 569, to support her

position that the trial court failed to consider her interests of justice factors is unavailing.

Unlike here, the motion filed in the McLernon case was clearly denied without the trial

court considering his interests of justice factors or the merits of his motion but instead

relying upon the denials of his motion in 2001 and his petition in 2007. The record on

appeal included a minute order of the court’s ruling, which stated: “‘The petition for

relief pursuant to Penal Code section 1203.4 is rejected having been submitted and denied

on 3-06-01 and 6-05-07.’” (Id. at p. 574.) The appellate court explained: “First, the

language of the minute order at issue makes clear that the trial court did not consider the

merits of McLernon’s motion. The court ‘rejected’ the motion as ‘having been submitted

and denied on 3-06-01 and 6-05-07.’ Moreover, the minute order denying the previous

motion petition on June 5, 2007 indicates that the reason for that denial was the denial of

the March 6, 2001 motion, which was denied ‘due to unsatisfactory performance on

probation.’ Thus, it appears that the sole basis for denying any of McLernon’s requests

for relief under section 1203.4 was his unsatisfactory performance on probation.” (Id. at

p. 575.)

       In the present matter, defendant cannot affirmatively show that the trial court did

not consider the merits of her motion or her interests of justice factors but instead solely

relied on her poor performance on probation. Defendant also cannot affirmatively

demonstrate that the trial court misunderstood the scope of its discretion. In fact, the


                                                8
record shows otherwise. The trial court simply exercised its discretion in finding that the

interests of justice did not require the relief be granted.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               RAMIREZ
                                                                                       P. J.

We concur:



KING
                            J.



CODRINGTON
                            J.




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