Filed 8/18/15 P. v. Toney CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B261880
                                                                            (Super. Ct. No. CR38787)
    Plaintiff and Respondent,                                                   (Ventura County)

v.

MICHAEL W. TONEY,

    Defendant and Appellant.



                   In 1996, Michael W. Toney was convicted by plea of unlawful sexual
                                                                             1
intercourse with a minor (Pen. Code, § 261.5, subd. (c)) and oral copulation of a person
under the age of 18 (§ 288a, subd. (b)(1)). The trial court suspended imposition of
sentence and granted five years probation. Appellant successfully completed probation
and appeals from a post-judgment order denying his motion to reduce the offenses to
misdemeanors (§17, subd. (b)(3)) and motion to withdraw his plea and dismiss the
complaint (§ 1203.4). We reverse with directions to grant the motion to withdraw the
guilty plea and dismiss the complaint. (§ 1203.4, subd. (a)(1).) The order denying the
motion to reduce the offenses to misdemeanors is affirmed. (§ 17, subd. (b)(3).)
                   In 1995, appellant (age 36) groomed a 17-year-old female student, M.G.,
for sexual intercourse while teaching at a Christian private school. Appellant kissed

1
    All statutory references are to the Penal Code unless otherwise stated.
M.G., digitally penetrated her vagina, and fondled her breasts. On December 16, 1995,
appellant had unprotected sexual intercourse with M.G. at his house. Appellant wrote
more than 60 letters to M.G. about his sexual activities. After the letters were turned over
to the police, appellant admitted fondling another student 10 years earlier after leaving his
teaching position at the student's school.
              Appellant pled guilty to unlawful sexual intercourse and oral copulation of
M.G. On July 26, 1996, the trial court suspended imposition of sentence and granted five
years formal probation.
              Appellant successfully completed probation and, in 2014, filed a motion to
reduce the felony offenses to misdemeanors (§ 17, subd. (b)(3)) and to withdraw his plea
and dismiss the complaint (§ 1203.4). The trial court denied the motion due to the
serious nature of the offenses and appellant's violation of trust. On January 5, 2015, the
court denied a motion for reconsideration, citing "the nature of the trust that was violated"
and the possibility that appellant "might be in a position to do this again."
                                        Section 1203.4
              Appellant argues that he has fulfilled all probation conditions and is entitled
to mandatory relief pursuant to section 1203.4. The Attorney General agrees. Section
1203.4, subdivision (a)(1) provides that a defendant, upon the successful completion of
probation, may withdraw his or her plea of guilty on certain qualifying offenses and
                          2
expunge the conviction. "[A] defendant moving under Penal Code section 1203.4 is
entitled as a matter of right to its benefits upon a showing that he 'has fulfilled the
conditions of probation for the entire period of probation.' " (People v. Chandler (1998)
203 Cal.App.3d 782, 788.) Where the motion satisfies the requirements of section
1203.4, the trial court must grant relief in accord with the statute. (In re Griffin (1967)
67 Cal.2d 343, 347, fn. 3; People v. Hawley (1991) 228 Cal.App.3d 247, 250.) " 'The

2
 Appellant was convicted of violating section 261.5, subdivision (c) and section 288a,
subdivision (b)(1)). Both offenses qualify for section 1203.4 relief. (See § 1203.4,
subd. (b); Levenson, Cal. Criminal Procedure (The Rutter Group) 2014), § 28:21, p. 28-
25.)


                                               2
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.' [Citation.]" (People v. Chandler, supra,
203 Cal.App.3d at pp. 788-789.) We reverse with directions to grant appellant relief
pursuant to section 1203.4, subdivision (a)(1).
                Section 17(b) Motion to Reduce Offenses to Misdemeanors
              Appellant argues that the trial court abused its discretion in not reducing the
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felony offenses to misdemeanors. (§ 17, subd. (b).) Section 17, subdivision (b)
(hereafter section 17(b)) "authorizes the reduction of 'wobbler' offenses - crimes that, in
the trial court's discretion, may be sentenced alternately as felonies or misdemeanors -
upon imposition of a punishment other than state prison (§ 17(b)(1)) or by declaration as
a misdemeanor after a grant of probation (§ 17(b)(3))." (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 974.) In ruling on a section 17(b) motion, the trial court
considers all relevant sentencing factors including the nature and circumstances of the
offense, defendant's appreciation of and attitude toward the offense, defendant's criminal
history and character traits, and the general sentencing objectives set forth in California
Rule of Court rule 4.410. (Id., at p. 978.) The court must give "individualized
consideration of the offense, the offender, and the public interest . . . [citation.]" (Ibid.)
              Appellant abused his position of trust as a teacher, groomed an underage
student for sexual purposes, and engaged in unlawful sexual conduct at school and in his
house. After the matter was reported to the police, appellant admitted molesting a 15-
year-old student 10 years earlier.

3
  A section 1203.4 order expunging the conviction does not relieve appellant of all the
consequences of the felony conviction. (See e.g., People v. Diaz (1996) 41 Cal.App.4th
1424, 1430 [dismissed charge used as strike under Three Strikes law].) Where the court
reclassifies the offense as a misdemeanor pursuant to section 17(b)(3) and the conviction
is expunged pursuant to section 1203.4, the crime of which defendant has been convicted
is "reclassified as a misdemeanor. Section 1203.4 [does] not erase defendant's
conviction; rather, it free[s] him from some of the misdemeanor conviction's ' "penalties
and disabilities.'' ' [Citations.]" (People v. Park (2013) 56 Cal.4th 782, 805.)


                                               3
               Appellant argues that he has "undergone tremendous personal and
professional growth over the years" and served in the United States Army. Appellant
complains that he has lost job opportunities due to the felony conviction and failed a
background check to work for the Los Angeles Police Department. That is so because a
section 1203.4 dismissal does not relieve appellant of the obligation to disclose his
conviction when applying for public office or licensure by a state or local agency.
(§1203.4, subd. (a)(1).) Appellant is also precluded from owning, possessing, or having a
firearm in his custody or control. (§ 1203.4, subd. (a)(2).) A section 17(b) order
reducing a wobbler sex offense to a misdemeanor does, however, have certain
employment advantages. By regulation, a private employer may not ask a job applicant
about a misdemeanor conviction dismissed pursuant to section 1203.4. (See Cal.Code
Regs, tit. 2. § 11017(d); Cont.Ed.Bar (2014) Cal. Criminal Law Procedure and Practice §
41:15, p. 1291.)
               The trial court denied the motion to reduce the offenses to misdemeanors
based on the predatory nature of the offenses, the harm done to the victim, the risk to
society, and because appellant engaged in similar sexual conduct by abusing his position
of trust. In the words of the trial court, "this was not the defendant's first time engaging
in questionable behavior with students. Although he may regret his actions, he has
scarred the victim [M.G.] for life." The trial court was concerned that appellant "might
be in a position to do this again. . . ."
               Appellant argues that there are positive factors favoring section 17(b) relief
but makes no showing that the ruling is arbitrary, capricious, or exceeds the bounds of
reason. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.) On
review, we are precluded from substituting our judgment for that of the trial court. (Id., at
p. 978.)
                                            Conclusion
               We reverse with directions to grant appellant's motion to withdraw the
guilty plea and dismiss the complaint pursuant to section 1203.4, subdivision (a)(1). The



                                                4
order denying the motion to reduce the felony offenses to misdemeanors (§ 17, subd.
(b)(3)) is affirmed.
              NOT TO BE PUBLISHED.



                                                      YEGAN, J.
We concur:


              GILBERT, P.J
.


              PERREN, J.




                                           5
                                  Roger Lund, Judge

                           Superior Court County of Ventura

                         ______________________________


             Mathew R. Higbee, for Defendant and Appellant


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez,
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.




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