Filed 3/21/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                              2d Crim. No. B290589
                                      (Super. Ct. No. 2010031209)
     Plaintiff and Respondent,             (Ventura County)

v.

MISAEL VENCES MAYA,

     Defendant and Appellant.



      A model prisoner is not necessarily a model citizen.
      Misael Vences Maya appeals an order denying a motion to
expunge his misdemeanor conviction for possession of
methamphetamine. (Pen. Code, § 1203.4a [rehabilitation of
misdemeanants]; Health & Saf. Code, § 11377, subd. (a).)1 We
affirm.
      This appeal concerns the trial court’s denial of Maya’s
request to expunge his conviction for possession of
methamphetamine following his successful motion to reduce the
felony conviction to a misdemeanor. In ruling against Maya, the


       All statutory references are to the Penal Code unless
        1

otherwise stated.
trial judge stated that Maya could not establish that he had lived
“an honest and upright life” as required by section 1203.4a,
subdivision (a) because he has been in continuous state or federal
custody following his 2011 conviction. The court later denied
Maya’s motion for reconsideration, noting that it was denying
relief in the exercise of its discretion. Maya now appeals the
denial of his expungement motion and motion for reconsideration.
            FACTUAL AND PROCEDURAL HISTORY
       On June 30, 2011, Maya pleaded guilty to driving under the
influence with six prior driving-under-the-influence convictions,
and possession of methamphetamine. (Veh. Code, §§ 23152,
subd. (a), 23550; Health & Saf. Code, § 11377, subd. (a).) Maya
also admitted that he had served two prior prison terms.
(§ 667.5, subd. (b).) During the plea colloquy, the prosecutor
advised Maya of the immigration consequences of his plea,
including possible deportation.
       On July 7, 2011, the trial court denied probation and
sentenced Maya to four years eight months imprisonment,
consisting of a three-year upper term for the driving-under-the-
influence conviction, an eight-month consecutive term for the
drug conviction, and a consecutive one-year term for one prior
prison term allegation. The court struck the remaining prior
prison term allegation and granted the prosecutor’s motion to
dismiss the remaining charges and allegations. The court also
imposed various fines and fees and awarded Maya 571 days of
presentence custody credit.
       On December 25, 2012, Maya completed his term of
imprisonment. On that date and continuously since that time,
the United States Department of Homeland Security received
custody of Maya. The Department issued a removal notice




                                2
stating that Maya was subject to removal as a lawful permanent
resident of the United States because he had suffered a
conviction for possession of a controlled substance other than 30
grams or less of marijuana for personal use. (8 U.S.C. § 1227
(a)(2)(B)(i); Padilla v. Kentucky (2010) 559 U.S. 356, 368 [176
L.Ed.2d 284, 295] [Immigration and Nationality Act commands
removal for all controlled substance convictions except the “most
trivial of marijuana possession cases”].)2
       In 2015, Maya filed an application to reduce his
methamphetamine drug possession conviction to a misdemeanor,
pursuant to section 1170.18, subdivisions (f) and (g) (“Proposition
47”). The court granted the application on October 1, 2015.
       On April 11, 2018, Maya sought to have the now-
misdemeanor drug possession conviction expunged pursuant to
section 1203.4a. The appellate record does not contain Maya’s
expungement motion or its supporting evidence. During
argument of the motion, however, Maya’s counsel stated that
Maya declared that he has attended Alcoholics Anonymous
meetings while detained and has participated in fire camp.
       Following the trial court’s denial of the motion, Maya filed
a motion for reconsideration. The reconsideration motion
contained a probation report dated April 6, 2018, stating: “There
remains no demonstrated, or measurable level of compliance in
the community [by Maya], and there has been no way to evaluate
his ability to obey all laws.” The court denied the motion for
reconsideration. In ruling, the trial judge decided that being “in
custody for substantial periods of time” cannot be considered

      2 Expungement of a drug conviction may have no effect on
the federal immigration consequences of the conviction. (People
v. Martinez (2013) 57 Cal.4th 555, 560.)



                                 3
leading an “honest and upright life” as required by statute: “Mr.
Maya has never been released from custody [and there was] no
opportunity . . . to determine whether he leads a law-abiding life
when out of custody.”
                            DISCUSSION
       Maya contends that the trial court erred by not considering
his good behavior during federal custody as evidence of “an
honest and upright life” within section 1203.4a, subdivision (a).
He also asserts that the court erred by considering that he did
not receive a grant of probation at sentencing and that he also
was convicted of driving under the influence. Maya relies upon
People v. Khamvongsa (2017) 8 Cal.App.5th 1239, 1244-1247
[completed prison sentence for offense reclassified as
misdemeanor does not preclude relief pursuant to section
1203.4a]. He adds that section 1203.4a does not define “an
honest and upright life.”
       Section 1203.4a, subdivision (a) provides: “Every defendant
convicted of a misdemeanor and not granted probation . . . shall,
at any time after the lapse of one year from the date of
pronouncement of judgment, if he or she has fully complied with
and performed the sentence of the court, is not then serving a
sentence for any offense and is not under charge of commission of
any crime, and has, since the pronouncement of judgment, lived
an honest and upright life and has conformed to and obeyed the
laws of the land, be permitted by the court to withdraw his or her
plea of guilty or nolo contendere and enter a plea of not guilty . . .
and . . . the court shall thereupon dismiss the accusatory pleading
against the defendant . . . .” The discretionary expungement
provision of section 1203.4a, subdivision (b) states: “If a
defendant does not satisfy all the requirements of subdivision (a),




                                  4
after a lapse of one year from the date of pronouncement of
judgment, a court, in its discretion and in the interests of justice,
may grant the relief pursuant to subdivision (a) . . . if [defendant]
has fully complied with and performed the sentence of the court,
is not then serving a sentence for any offense, and is not under
charge of commission of any crime.” A defendant who later has
his felony conviction reduced to a misdemeanor is eligible for
relief pursuant to section 1203.4a. (People v. Khamvongsa,
supra, 8 Cal.App.5th 1239, 1244-1245 [reclassified drug
conviction is a misdemeanor for all purposes, including
expungement relief pursuant to section 1203.4a].)
       The trial court did not abuse its discretion by concluding
that Maya has not established that he has led an honest and
upright life during his state and federal custody. Compliance
with prison regulations in an institutional setting does not satisfy
the requirement of an honest and upright life. A custodial setting
necessarily restricts an inmate’s exercise of free will; an honest
and upright life demands more than mere compliance with prison
regulations or participation in prison classes and activities.
Prison confinement necessarily precludes evidence of inmate
behavior in the face of outside temptation. (See People v. Zeigler
(2012) 211 Cal.App.4th 638; id. at pp. 652, 654 [certificate of
rehabilitation pursuant to section 4852.05 requires evidence that
person lived “an honest and upright life,” a high standard to
meet].)
       Maya asserts that the language allowing a defendant to
seek relief “at any time after the lapse of one year from the date
of pronouncement of judgment” implies that a trial court
considering an expungement motion may consider custodial
behavior in assessing “an honest and upright life.” (§ 1203.4a,




                                 5
subd. (a).) Reading the words of the statute in context, however,
the reference to “one year” refers to the earliest time a defendant
may seek expungement of his misdemeanor conviction. (People ex
rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301 [in
construing a statute, words must be read in context].)
       We disagree that the trial court’s comments regarding
Maya’s lack of a grant of probation or his conviction for felony
driving under the influence indicates that the court was confused
regarding the requirements of section 1203.4a. A fair reading of
the court’s statements in context indicates that it could not
evaluate whether Maya had lived an honest and upright life since
the pronouncement of judgment because he has been in custody
continuously since 2011.
       The trial judge stated: “There’s been no opportunity by the
Court or probation or by parole officials to determine whether he
leads a law-abiding life when out of custody and I think that’s
what probation and parole and Post Release Supervision is all
about.” The court also agreed with Maya that he was eligible for
expungement although he had also suffered a felony conviction
for driving under the influence. We presume that the court
knows and understands the law and applies it correctly. (Ross v.
Superior Court (1977) 19 Cal.3d 899, 913.) We also must review
the court’s statements in context. (People v. Mehserle (2012) 206
Cal.App.4th 1125, 1158 [court’s comments in denying probation
must be read in context].)
       Maya’s reliance upon People v. Galvan (2007) 155
Cal.App.4th 978, 983-984, and People v. Cervantes (2009) 175
Cal.App.4th 291, 295-297, is misplaced. Those decisions conclude
that a defendant’s failure to report to his probation officer or
attend a court hearing is not willful when the defendant is




                                6
detained by immigration authorities. The decisions involve
probationers and the violation of court orders and are not
relevant here.
       In response to the dissent, we are mindful that Maya is in
custody because of his immigration status, and not because he
committed a new crime. But he bears responsibility for that
status. His being in a controlled custodial environment does not
allow for proper evaluation of how Maya would conduct himself
in society.
       The order is affirmed.
       CERTIFIED FOR PUBLICATION.




                        GILBERT, P. J.


I concur:



      YEGAN, J.




                                7
TANGEMAN, J.:

                                           1
     I respectfully dissent. Penal Code section 1203.4a,
subdivision (a) mandates relief if certain conditions are satisfied.
The majority concedes that Maya (1) was convicted of a felony
                                               2
which was later reduced to a misdemeanor and not granted
probation, (2) complied with and performed the sentence of the
court, (3) is not serving a sentence for any offense, and (4) is not
charged with a new crime. That leaves only one remaining
condition: that he lived an honest and upright life and obeyed
the laws of the land since the pronouncement of judgment.
      It is settled that the conditions imposed by section 1203.4a,
including living an honest and upright life, “must be read as
relating to one year from the date of pronouncement of
judgment.” (People v. Chandlee (1979) 90 Cal.App.3d Supp. 13,
20.) This is so because section 1203.4a evinces an “intention to
secure law compliance from a misdemeanant not placed on
probation, but instead sentenced outright (by fine or jail term)
who stays out of trouble with the law for one year after his
misdemeanor conviction.” (Ibid.)
      The majority opinion concludes that “[c]ompliance with
prison regulations in an institutional setting does not satisfy the
requirement of an honest and upright life.” (Maj. opn. ante, at p.
5.) No authority is cited for this conclusion because none exists.


      1
          All further statutory references are to the Penal Code.
      2
        A defendant convicted of a felony and sentenced to prison
who later has the felony conviction reduced to a misdemeanor is
eligible for relief pursuant to section 1203.4a. (People v.
Khamvongsa (2017) 8 Cal.App.5th 1239.)



                                   1
      The plain language of section 1203.4a compels the opposite
result. The statute requires only that the misdemeanant comply
with the law for one year following conviction (see People v.
Chandlee, supra, 90 Cal.App.3d at p. Supp. 20). This includes
time spent in custody, for the language plainly applies to
misdemeanants denied probation and sentenced outright,
commencing “from the date of pronouncement of judgment,” not
                                  3
the date of release from custody. A misdemeanant may be
incarcerated for up to one year after conviction. (§ 19.2.)
       Where the statutory language is clear, “‘“‘courts must
generally follow its plain meaning unless a literal interpretation
would result in absurd consequences the Legislature did not
intend.’”’” (Meza v. Portfolio Recovery Associates, LLC (2019) 6
Cal.5th 844, 856.) Following the plain meaning of section
1203.4a would not lead to absurd results. It is no secret that
persons in custody can, and often do, commit crimes or violate
institutional rules. (See, e.g., §§ 243.1 [battery against custodial
officer], 4573.6 [possession of controlled substance in jail].) It is
not absurd to encourage their compliance with the law and
institutional rules pending their release.
       On the other hand, withholding relief from persons who
conform their behavior to the law solely because they are being
detained by immigration authorities is inconsistent with the
recognized objective of encouraging them “to stay[] out of trouble
with the law for one year after” their conviction.

      3
         Cf. People v. Zeigler (2012) 211 Cal.App.4th 638
[certificate of rehabilitation requires successful completion of
sentence and an additional sustained period of rehabilitation
“commenc[ing] upon the discharge of the petitioner from custody”
(§ 4852.03, subd. (a))].



                                  2
      I would reverse and remand for an evidentiary hearing on
whether Maya conformed his behavior to the laws of the land for
one year following the pronouncement of judgment.
      CERTIFIED FOR PUBLICATION.




                                   TANGEMAN, J.




                               3
                     Bruce A. Young, Judge

               Superior Court County of Ventura

                ______________________________


      Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb, Noah P. Hill and
Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and
Respondent.
