Filed 1/14/21 P. v. Rivera CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302300
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA405317
v.
ALBERT RIVERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sam Ohta, Judge. Affirmed.
Marks & Brooklier and Donald B. Marks for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Jonathan J. Kline and Shezad H.
Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Albert Rivera appeals a trial court order denying his
request to reduce his felony conviction to a misdemeanor.
We affirm.
On September 12, 2013, Rivera pleaded no contest to
a violation of Penal Code section 311.11(a), felony possession
of child pornography. (All the statutory citations that follow
are to the Penal Code.) The trial court suspended imposition
of sentence, and placed Rivera on five years of formal probation
with conditions including 180 days in county jail.
After he successfully completed his probation, on
September 16, 2019, Rivera filed a motion to dismiss the
complaint under section 1203.4, and to reduce his conviction to
a misdemeanor under section 17, subdivision (b). At a hearing on
October 8, 2019, the prosecutor stated the case involved Rivera’s
possession of 70 videos and 1,058 images of “forcible penetrative
assaults on young children.” The trial court granted the request
for dismissal, stating it had no discretion (“[I]f the defendant
successfully completes probation, I cannot stand in the way of
the expungement.”). The court pointed out it did have discretion
to deny reduction to a misdemeanor because “[t]hat’s a question
of the nature of the offense.” The court acknowledged Rivera had
no criminal history, and continued: “70 videos that show forcible
sex acts on minors—that’s not a misdemeanor.” The court denied
Rivera’s request to reduce the conviction to a misdemeanor.
DISCUSSION
A defendant who moves under section 1203.4 for
expungement of the record of conviction 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,’ ”
requiring the court to grant the motion when, as here, the
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defendant has shown exemplary conduct during the entire
probationary period. (People v. Chandler (1988) 203 Cal.App.3d
782, 788-789.) But a convicted defendant who successfully
completes probation is not entitled to a reduction to a
misdemeanor under section 17, subdivision (b), which “is an
act of leniency by the trial court.” (People v. Tran (2015) 242
Cal.App.4th 877, 892.) The court has discretion whether to
grant a request for reduction to a misdemeanor under section 17,
subdivision (b). (People v. Gollardo (2017) 17 Cal.App.5th 547,
561-562). We therefore review the trial court’s denial of relief
for an abuse of discretion, and the burden is on Rivera to show
the court’s decision was irrational or arbitrary. (People v. Medina
(2018) 24 Cal.App.5th 61, 65.)
The facts and circumstances of the offense are a relevant
consideration in the court’s decision whether to grant the request.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
Here, the court denied the request based on the nature and
circumstances of the offense, while mentioning Rivera’s lack
of criminal history. Rivera “present[s] no argument showing
the court’s determination was made ‘outside the perimeters
drawn by individualized consideration of the offense, the
offender, and the public interest.’ ” (People v. Bonilla (2018)
29 Cal.App.5th 649, 661-662 [affirming a denial of reduction
to a misdemeanor based solely on the nature of the offense]).
The trial court’s decision was neither irrational nor
arbitrary.
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DISPOSITION
The order denying defendant’s Penal Code section 17,
subdivision (b) motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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