Filed 3/27/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039416
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. CC763357)
v.
ANTHONY JOSEPH MARINELLI,
Defendant and Respondent.
This appeal presents a single question of statutory construction: whether a
conviction for attempted lewd or lascivious acts on a child under 14 constitutes “any
violation of [Penal Code] Section 288,” which prohibits lewd or lascivious acts on a child
under 14, for purposes of Penal Code section 1203.4, subdivision (b).1 We agree with
our colleagues in the Fourth District that it does not. Accordingly, we affirm the superior
court’s order granting defendant Anthony Joseph Marinelli’s section 1203.4 motion for
leave to withdraw his guilty plea and dismissing Marinelli’s conviction.
I. BACKGROUND
In 2008, Marinelli pleaded nolo contendere to attempted lewd or lascivious act on
a child under 14 (§§ 664, 288, subd. (a)) and attempted distribution or exhibition of
harmful material to a minor (§§ 664, 288.2, subd. (b)). The trial court suspended
imposition of sentence and placed Marinelli on three years formal probation.
In 2012, after successfully completing probation, Marinelli filed a motion in the
trial court seeking to withdraw his plea and to have his conviction dismissed pursuant to
section 1203.4, subdivision (a). The government opposed the motion on the ground that
1
Further unspecified statutory references are to the Penal Code.
Marinelli was not eligible for section 1203.4, subdivision (a) relief because he was
convicted of a violation of section 288, and section 1203.4, subdivision (b) makes section
1203.4, subdivision (a) inapplicable to such violations.
The court granted the motion, as it was bound to do by the Fourth District’s
decision in People v. Lewis (2006) 146 Cal.App.4th 294, 298 (Lewis), which holds that
section 1203.4, subdivision (b) does not include attempted violations of section 288. The
government timely appealed. In Lewis, the government conceded that section 1203.4,
subdivision (b) did not apply to attempts, and therefore that court did not have the benefit
of a full discussion of the issue, as we do here. Nevertheless, for the reasons set forth
below, we conclude Lewis was correctly decided.
II. DISCUSSION
A. Section 1203.4
Section 1203.4, subdivision (a) allows a defendant to withdraw a plea of guilty or
nolo contendere and receive a dismissal from the court upon successful completion of
probation. “[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 (1988) 203
Cal.App.3d 782, 788.) In other words, when a defendant has satisfied the terms of
probation, the trial court has no discretion to deny a section 1203.4, subdivision (a)
motion, unless section 1203.4, subdivision (b) applies. (People v. Chandler, supra, at p.
788.)
Section 1203.4, subdivision (b) excepts certain violations from the relief provided
in subdivision (a), including “any violation of . . . Section 288.” (§ 1203.4, subd. (b).)
The section 1203.4, subdivision (b) exception for violations of section 288 was added to
the statute in 1997, along with exceptions for a number of other sex offenses. (See Stats.
1997, ch. 61.) On its face, section 1203.4, subdivision (b) “does not expressly except
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attempted violations of section 288” or other attempted sex offenses from the relief
provided by section 1203.4, subdivision (a). (Lewis, supra, 146 Cal.App.4th at p. 298.)
The purpose of the 1997 amendment was to “prohibit persons convicted of
specified sex offenses to expunge his or her record under Penal Code section 1203.4.”
(Sen. Com. on Public Safety, Analysis of Assem. Bill No. 729 (1997-1998 Reg. Sess.) as
amended May 5, 1997.) The legislative history notes that the amendment “may have
limited practical effect [because s]ection 1203.4 applies only to probationers, not to
parolees[, and] . . . [p]robation generally is prohibited for the [specified] sex offenses.”
(Ibid.) However, according to the legislative history, the amendment’s sponsor
maintained that the amendment would save “significant investigative resources [that
would otherwise be] expended in handling 1203.4 petitions” filed by individuals
convicted of sex offenses. (Ibid.)
B. Standard of Review and Principles of Statutory Construction
The interpretation of section 1203.4 is a question of law that we review de novo.
(People v. Failla (2006) 140 Cal.App.4th 1514, 1520 (Failla).)
“A fundamental rule of statutory construction is to interpret the statute consistent
with the intent of the Legislature.” (People v. Crowles (1993) 20 Cal.App.4th 114, 118
(Crowles).) We determine legislative intent by first examining the words of the statute,
giving them their usual, ordinary, and common sense meaning. (Failla, supra, 140
Cal.App.4th at p. 1520.) However, “[l]iteral construction should not prevail if it is
contrary to the legislative intent apparent in the statute. The intent prevails over the
letter, and the letter should, if possible, be read to conform to the spirit of the law.”
(Crowles, supra, at p. 118.) “The rule of strict interpretation of penal statutes does not
apply in California. The provisions of the Penal Code ‘. . . are to be construed according
to the fair import of their terms, with a view to effect its object and to promote justice.’ ”
(People v. Squier (1993) 15 Cal.App.4th 235, 241.)
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C. Analysis
It is undisputed that Marinelli fulfilled the conditions of his probation, and
therefore is entitled to section 1203.4, subdivision (a) relief unless section 1203.4,
subdivision (b) makes that provision inapplicable to him. Therefore, the sole question
presented is whether section 1203.4, subdivision (b) applies to attempted violations of the
statutes it enumerates. Put differently, does an attempted violation of section 288
constitute “any violation of . . . Section 288”? (§ 1203.4, subd. (b).)
As noted above, we begin with the statutory language. Section 1203.4,
subdivision (b) references only “violation[s],” not attempted violations. It is well
established that “ ‘[a]n attempt is an offense “separate” and “distinct” from the completed
crime.’ ” (Lewis, supra, 146 Cal.App.4th at p. 298, quoting People v. Reed (2005) 129
Cal.App.4th 1281, 1283; see also People v. Le (1984) 154 Cal.App.3d 1, 10.)
Accordingly, we are not persuaded by the government’s bald contention that attempts,
conspiracies, and completed violations are simply different types or varieties of
violations. Nor does the statute’s use of the word “any” before “violation” expand the
ordinary meaning of “violation” to included “attempted violation.” (§ 1203.4, subd. (b).)
In short, as the Fourth District concluded in Lewis, the plain language of the statute
indicates that section 1203.4, subdivision (b) does not apply to attempted violations of
section 288. (Lewis, supra, at p. 298.)
Next, we consider whether a literal construction of section 1203.4, subdivision (b)-
-under which it does not apply to attempts--is contrary to the statute’s apparent legislative
intent.2 If it is, then we must construe the statute as applying to attempts, despite the fact
that it does not explicitly identify them. (See, e.g., People v. Barrajas (1998) 62
Cal.App.4th 926 [holding that diversion statutes applicable to certain specified drug
offenses applied equally to attempts to commit those specified drug offenses, despite the
2
The Lewis court did not undertake this step of the analysis, perhaps because the
government conceded the issue there.
4
fact that attempts were not listed in the diversion statutes, because a literal reading of the
statutes--which would punish attempted drug offenses more severely than successful
ones--was absurd and did not advance the statutory purpose].)
As noted above, the legislative history indicates that the purpose of section 1203.4,
subdivision (b)’s exception of sex offenses is to “prohibit persons convicted of specified
sex offenses to expunge his or her record under Penal Code section 1203.4,” thereby
conserving “significant investigative resources [that would otherwise be] expended in
handling 1203.4 petitions” filed by individuals convicted of sex offenses. (Sen. Com. on
Public Safety, Analysis of Assem. Bill No. 729 (1997-1998 Reg. Sess.) as amended May
5, 1997.) That purpose is not thwarted if the section 1203.4, subdivision (b) exception
applies only to completed sex offenses. Nor does the exclusion of attempts from the
section 1203.4, subdivision (b) exception result in absurd consequences. To the contrary,
attempted crimes regularly are punished less severely than completed crimes. (§ 664
[establishing sentences for attempts at one-half the length of those for the completed
crime].) The Legislature reasonably could have concluded that perpetrators of attempted
sex offenses should have the opportunity to expunge their records, while those who
completed certain sex offenses should not. Accordingly, we conclude that the Legislature
intended to exclude attempts from the section 1203.4, subdivision (b) exception.
That conclusion that is buttressed by the fact that the Legislature has not amended
section 1203.4, subdivision (b) to expressly include attempts since Lewis was decided in
2006, despite having amended section 1203.4 numerous times. (See Stats. 2007, ch. 161
(A.B. 645), § 1; Stats. 2008, ch. 94 (A.B. 2092), § 1; Stats. 2009, ch. 606 (S.B. 676), § 7;
Stats. 2010, ch. 328 (S.B. 1330), § 166; Stats. 2010, ch. 178 (S.B. 1115), § 76; Stats.
2013, ch. 143 (A.B. 20), § 2).) “The Legislature is presumed to have knowledge of
existing judicial decisions when it enacts and amends legislation. When the Legislature
amends a statute that has been the subject of judicial construction, changing it only in
part, the presumption is that the Legislature intended to leave the law unchanged in the
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aspects not amended.” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th
629, 642-643.)
III. DISPOSITION
The order granting Marinelli’s Penal Code section 1203.4 motion for leave to
withdraw his guilty plea and dismissing Marinelli’s conviction is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Márquez, J.
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Trial Court: Santa Clara County Superior Court
Superior Court No. CC763357
Trial Judge: Hon. Rene Navarro
Counsel for Plaintiff/Appellant: Jeffrey Rosen
The People District Attorney
Christopher Boscia
Deputy District Attorney
Counsel for Defendant/Respondent: Law Offices of Higbee & Associates
Anthony Joseph Marinelli Mathew K. Higbee
Jennifer D. Strange
People v. Marinelli
H039416