Filed 2/4/14 P. v. Lambert CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047913

                   v.                                                  (Super. Ct. No. C80413)

LAWRENCE OLAN LAMBERT,                                                 OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Christopher
J. Evans, Judge. Reversed and remanded.
                   Charles R. Khoury, Jr., 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, Peter Quon, Jr., and Linh
Lam, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              Under Penal Code section 1203.4 (all further statutory references are to this
code), a defendant who has successfully completed probation may expunge his or her
conviction. But in 1997, the Legislature amended the statute to exclude certain sex
offenders from its provisions. Seven years before the amendment, defendant Lawrence
Olan Lambert pleaded guilty to six counts of lewd and lascivious acts upon a child under
14 years old in violation of section 288 in exchange for three years felony probation after
he served one year in jail. In 2012, defendant moved to withdraw his plea under section
1203.4. The court denied his motion. Defendant contends he was denied due process
because extrinsic evidence showed the parties understood section 1203.4 relief was part
of the plea agreement and even if not, there was an implicit agreement he would be
entitled to section 1203.4 relief after he completed his probation. Although the Supreme
Court in Doe v. Harris (2013) 57 Cal.4th 64 (Doe) recently held the subsequent
amendment applied unless “the parties . . . affirmatively agree[d] or implicitly
underst[oo]d the consequences of [the] plea will remain fixed despite amendments to the
relevant law” (id. at p. 71), the trial court never made that determination. We thus
reverse the order denying the motion and remand the matter to trial court to conduct an
evidentiary hearing on that issue based on “an analysis of the representations made and
other circumstances specific to the individual case.” (Ibid.)


                            PROCEDURAL BACKGROUND


              In 1990, defendant, then 23 years old, pleaded guilty to six counts of lewd
and lascivious acts upon a child under the age of 14. On the plea form, defendant
acknowledged “it is absolutely necessary all plea agreements, promises of particular
sentences or sentence recommendations be completely disclosed to the court on this
form” and that no one has “made any promises to [him] except as set out in this
form . . . .” Defendant initialed the paragraphs on the plea form indicating he waived his

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“right to be free from unreasonable searches and seizures” and agreed “for the period
during which [he is] on probation . . . to submit [his] person and property, including any
residence, premises, container or vehicle under [his] control to search and seizure at any
time of the day or night by any law enforcement or probation officer with or without a
warrant, and with or without reasonable cause, or reasonable suspicion” and understood
he had “the right to reject probation” but “waive[d] and g[a]ve up that right and accept
probation on all the terms and conditions contained in Page 3 of this form.” Those
conditions included suspension of his prison sentence in exchange for three years of
supervised probation, payment of a restitution fine, registration under section 290 as a sex
offender, avoid being in the presence of minors without an adult present and approval by
his probation officer, and have no contact or communication with the victim of the crimes
to which he was pleading guilty. Defense counsel confirmed “[n]o promises of a
particular sentence or sentence recommendation have been made by [him] or to [his]
knowledge by the prosecuting attorney or the court which have not been fully disclosed
in this form.” Despite the plea form’s indication that the grant of probation was one of
motivating factors for defendant’s plea, it contained no reference to section 1203.4 and
there is no transcript of the actual hearing because it has been destroyed.
              According to the pre-plea probation report, defendant asserted he
committed the crimes due to his “‘stupidity’” and lack of understanding, but believed
“placing him on probation would be appropriate” because he had attended counseling and
believed he had the problem under control and “definitely want[ed] to ‘stay out of
prison.’” Defense counsel agreed defendant should be placed on probation, stating
defendant was “‘terrified of jail.’” The district attorney also recommended probation due
to defendant’s young age and his participation in counseling but that “‘a good chunk of
jail time’” was appropriate. The probation officer concurred.




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              In November 1990, the court sentenced defendant to a year in jail and three
years of supervised probation. Defendant apparently successfully completed these terms,
as there is no claim to the contrary.
              In 2012, defendant moved to withdraw his guilty plea under section 1203.4.
He explained in his declaration he was seeking such relief because he had recently been
terminated from his job due to his criminal record and needed employment, without
which he was in danger of losing the home he shares with his two minor children and ex-
wife. He attested he “believed that if [he] completed probation successfully, [he] would
be entitled to request a dismissal under section 1203.4.” He asserted he would continue
registering as a sex offender under section 290 if his motion were granted.
              His trial counsel filed a supporting declaration, stating he did “not have a
specific recollection that [he] advised [defendant] of the availability of relief
under . . . section 1203.4 at the time of his plea” but “believe[d] . . . it was, and is my
custom [and] practice to advise . . . clients [available for eligible for probation] of the
relief available under section 1203.4.” He “also routinely advised [his] clients that the
relief available under section 1203.4 would not be available if one received a state prison
sentence and a particular benefit of accepting probation was the opportunity for relief
under section[] 1203.4.”
              At the hearing on the motion, defendant acknowledged he did not
remember if section 1203.4 was discussed as part of his plea bargain and that his counsel
did not declare he had specifically advised him that section 1203.4 relief would be
available if he pleaded guilty. But he argued due process required he receive the benefit
of his 1990 bargain because section 1203.4 was an implied promise and the later
amendment to the statute excluding certain sex offenses should not apply retroactively.
The court denied the motion solely on the ground the amendment to section 1203.4
excluding relief to certain offenders from its provisions applied retroactively under
People v. Ansell (2001) 25 Cal.4th 868.

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                                         DISCUSSION


               Section 1203.4, subdivision (a) requires a trial court to allow a defendant
who has completed all probation terms “to withdraw the plea and have the case
dismissed, thus expunging the offense from his or her record.” (Doe, supra, 57 Cal.4th at
p. 72.) It provides, in relevant part: “In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation . . . the defendant shall, at any
time after the termination of the period of probation . . . be permitted by the court to
withdraw his or her plea of guilty . . . 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 . . . . 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.” (§ 1203.4, subd. (a)(1), italics added.)
               Before 1997, section 1203.4 relief was available to sex offenders.
(Historical and Statutory Notes, 50D West’s Ann. Pen. Code (2004 ed.) foll. § 1203.4, p.
554.) Thus, because defendant would have completed the terms of his jail sentence and
probation at the latest in 1994, he would have automatically been entitled to relief under
section 1203.4, subdivision (a), had he filed the motion at that time. But he did not and in
1997, the Legislature amended the statute to exclude certain sex offenders, including
those convicted of violating section 288. (§ 1203.4, subd. (b); Historical and Statutory
Notes, 50D West’s Ann. Pen. Code, supra, foll. § 1203.4, p. 554; People v. Arata (2007)
151 Cal.App.4th 778, 783 (Arata).) The amendment applies retroactively to those
convicted and sentenced before its effective date of January 1998. (Arata, at pp. 784-
786; People v. Ansell, supra, 25 Cal.4th at pp. 880-893.)

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              Defendant cites Swenson v. File (1970) 3 Cal.3d 389, 394 for the
proposition “parties are presumed to have had existing law in mind when they executed
their agreement.” The Supreme Court recently rejected this argument with regard to plea
agreements, holding that “the general rule in California is that the plea agreement will be
‘“deemed to incorporate and contemplate not only the existing law but the reserve power
of the state to amend the law or enact additional laws for the public good and in
pursuance of public policy[.]”’ [Citation.] That the parties enter into a plea agreement
thus does not have the effect of insulating them from changes in the law that the
Legislature has intended to apply to them.” (Doe, supra, 57 Cal.4th at p. 66.)
              In so holding, Doe was addressing a question certified to it by the Ninth
Circuit Court of Appeals. It distinguished Swenson, involving a change in law not
intended to apply retroactively, and People v. Gipson (2004) 117 Cal.App.4th 1065,
which applied a retroactive change in recidivism sentencing despite a plea agreement
made by the parties under prior law. (Doe, supra, 57 Cal.4th at pp. 69-70.) Doe
followed the rule applied in Gipson that ‘“[w]hen persons enter into a contract or
transaction creating a relationship infused with a substantial public interest, subject to
plenary control by the state, such contract or transaction is deemed to incorporate and
contemplate not only the existing law but the reserve power of the state to amend the law
or enact additional laws for the public good and in pursuance of public policy.’” (Doe, at
p. 70.) According to Doe, “Gipson explains that the parties to a plea agreement — an
agreement unquestionably infused with a substantial public interest and subject to the
plenary control of the state—are deemed to know and understand that the state, again
subject to the limitations imposed by the federal and state Constitutions, may enact laws
that will affect the consequences attending the conviction entered upon the plea.” (Ibid.)
              Nevertheless, Doe observed that “even though . . . California law does not
hold that the law in effect at the time of a plea agreement binds the parties for all time, it
is not impossible the parties to a particular plea bargain might affirmatively agree or

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implicitly understand the consequences of a plea will remain fixed despite amendments to
the relevant law. [Citations.] [¶] Whether such an understanding exists presents factual
issues that generally require an analysis of the representations made and other
circumstances specific to the individual case.” (Doe, supra, 57 Cal.4th at p. 71.) But a
plea agreement’s failure “to reference the possibility the law might change [does not]
translate into an implied promise the defendant will be unaffected by a change in the
statutory consequences attending his or her conviction. To that extent, then, the terms of
the plea agreement can be affected by changes in the law.” (Id. at pp. 73-74.)
               Thus, we turn to the issue of whether the record shows the parties in this
case affirmatively agreed or implicitly understood defendant would be entitled to section
1203.4 relief notwithstanding any amendment. Constitutional due process requires that
“‘when a plea rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be a part of the inducement or consideration, such promise must
be fulfilled.’” (Arata, supra, 151 Cal.App.4th at p. 786.) Where “denial of section
1203.4 relief would be a ‘significant’ variation in the context of the entire plea bargain so
as to violate a defendant’s constitutional rights” (id. at p. 787), a defendant may be
entitled to specific performance despite subsequent changes in the law that make the
promise statutorily unauthorized. (See id. at pp. 782, 786-788 [state must comply with
section 1203.4 promise despite subsequent amendment to statute excluding sex offender
defendant from statute’s coverage]; see also Doe v. Brown (2009) 177 Cal.App.4th 408,
414, fn. 7.)
               “A negotiated plea agreement is a form of contract, and it is interpreted
according to general contract principles. [Citations.] ‘The fundamental goal of
contractual interpretation is to give effect to the mutual intention of the parties.
[Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the
other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must
be interpreted in the sense in which the promisor believed, at the time of making it, that

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the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the
courts give effect is determined by objective manifestations of the parties’ intent,
including the words used in the agreement, as well as extrinsic evidence of such objective
matters as the surrounding circumstances under which the parties negotiated or entered
into the contract; the object, nature and subject matter of the contract; and the subsequent
conduct of the parties.’” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
              We review de novo a trial court’s construction of a contract if no extrinsic
evidence was admitted or the facts are undisputed (Parsons v. Bristol Development Co.
(1965) 62 Cal.2d 861, 865-866), but defer to the trial court where extrinsic evidence
creates factual disputes or requires credibility resolutions if reasonably supported by the
record (People v. Paredes (2008) 160 Cal.App.4th 496, 507). Here, the court never
considered the terms of the plea bargain, express or implicit, concluding only that
defendant was not entitled to section 1203.4 relief because the amendment excluding
certain sex offenders applied retroactively. We thus remand the case to allow the court to
conduct an evidentiary hearing and determine whether there was an affirmative
agreement or implicit understanding between the parties that the consequences of
defendant’s plea would remain the same notwithstanding any amendments to the statute.
(Doe, supra, 57 Cal.4th at p. 71.) Given this remand, we need not address defendant’s
alternative claim that denial of his motion for section 1203.4 relief violates the equal
protection clauses of the federal and state Constitutions.


                                       DISPOSITION


              The order denying defendant’s motion to withdraw his guilty plea under
section 1203.4 is reversed and case is remanded for the court to conduct an evidentiary
hearing to determine whether “the parties to [the] . . . plea bargain . . . affirmatively
agree[d] or implicitly underst[oo]d the consequences of a plea will remain fixed despite

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amendments to the relevant law” based on “an analysis of the representations made and
other circumstances . . . .” (Doe, supra, 57 Cal.4th at p. 71.)




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



IKOLA, J.




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