Filed 3/22/22 P. v. Balboa CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A162473
v.
GILBERTO BALBOA, (Solano County
Super. Ct. No. FCR330837)
Defendant and Appellant.
Defendant Gilberto Balboa pled no contest to one count of lewd conduct
in public under Penal Code1 section 647, subdivision (a). The superior court
suspended sentence and imposed a probation term of three years pursuant to
the parties’ plea agreement. Three months before defendant’s probation was
set to expire, the court terminated his probation under section 1203a, as
amended by Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill
1950). Defendant then filed a motion to set aside his conviction and dismiss
the information pursuant to section 1203.4, which provides that a defendant
whose probation terminates successfully is entitled to expungement. The
motion was denied.
On appeal, the Attorney General concedes that the superior court erred
in denying the motion, and agrees that defendant is entitled to relief. We
1 All statutory references are to the Penal Code.
agree with the parties and reverse, remanding the matter to the lower court
with instructions to grant defendant the relief he seeks.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Because the facts underlying defendant’s conviction are irrelevant to
the issues on appeal, we do not discuss them.
The People filed an information charging defendant with two felony
counts of lewd and lascivious acts upon a child (§ 288, subd. (a)) in September
2017. Defendant later pleaded no contest to one misdemeanor count of lewd
conduct in public (§ 647, subd. (a)). The remaining charges were dismissed as
part of a negotiated disposition. In June 2018, the superior court suspended
imposition of sentence and granted defendant informal probation for a term
of three years, with various terms and conditions.
On November 23, 2020, defendant moved the superior court to
terminate his probation early and dismiss his conviction under
section 1203.4. The prosecution opposed the request, arguing that no
changed circumstance had arisen since the time of the plea to justify the
requested relief. The court denied the motion.
Effective January 1, 2021, Assembly Bill 1950 amended section 1203a
to limit misdemeanor probation to a maximum term of one year, with
exceptions that are not at issue here. (§ 1203a, subd. (b).)
On March 3, 2021, the superior court filed an “Order Terminating
Probation Pursuant to [Assembly Bill] 1950,” ending defendant’s probation
approximately three months before its natural expiration date.
On March 11, 2021, defendant renewed his request to dismiss his
conviction under section 1203.4. Defense counsel stated that defendant’s
probation had expired by operation of law, averring that he had completed all
2
terms of probation, paid all fines, and had not violated probation. The
prosecution objected for the same reason as previously stated, noting that
defendant had “entered into a contract” when he agreed to serve a three-year
probationary term in exchange for a reduced charge and no additional
custody time.
On April 14, 2021, the superior court denied defendant’s motion to
dismiss his conviction. Citing People v. Johnson (2012) 211 Cal.App.4th 252
(Johnson), the court reasoned that “Penal Code section 1203.4 was intended
as an award for good conduct,” and therefore “cannot be authorized to
interpret relief to defendants simply because probation was terminated
early.” The court concluded: “In this particular instance, [defendant] was not
terminated as successful. He was terminated by operations [sic] of law under
[Assembly Bill] 1950. Under [Assembly Bill] 1950 he can only serve for that
one year period. Under [section] 1203.4 he has to show that he has met all of
the conditions. All of the conditions indicate he has to serve that complete
three-year term, in order to be able to be eligible under [section] 1203.4.”
This appeal followed.
II.
DISCUSSION
Defendant correctly contends that because he “fulfilled the conditions of
probation for the entire period required of him,” he is eligible for relief under
to section 1203.4 as a matter of law. The Attorney General concedes the
merits of defendant’s claim. We agree with the parties and, accordingly, we
reverse the superior court’s order with directions to grant defendant relief
under section 1203.4.
Section 1203.4, subdivision (a)(1) provides, in relevant part: “In any
case in which a defendant has fulfilled the conditions of probation for the
3
entire period of probation, or has been discharged prior to the termination of
the period of probation, or in any other case in which a court, in its discretion
and the interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any time after
the termination of the period of probation . . . be permitted by the court to
withdraw their plea of guilty or plea of nolo contendere . . . and, in either
case, the court shall thereupon dismiss the accusations or information
against the defendant and except as noted below, the defendant shall
thereafter be released from all penalties and disabilities resulting from the
offense of which they have been convicted, except as provided in
Section 13555 of the Vehicle Code. ”
“As the statutory language makes clear, there are three situations in
which a defendant may be entitled to have his or her conviction dismissed.
The first two—when the defendant fulfilled the conditions of probation for the
entire probationary period or when the defendant was discharged before the
termination of the period of probation—require the court to grant the
requested relief if the conditions are met. The last requires the court to
determine whether, in its discretion and the interests of justice, the relief
should be granted.” (People v. McLernon (2009) 174 Cal.App.4th 569, 574.)
The first two situations are implicated here.
It has long been held the statutory language of section 1203.4 provides
for expungement as a matter of right for those defendants who fully perform
the terms of their probation for the entire probationary period. “[A]
defendant moving under Penal Code section 1203.4 is entitled as a matter of
right to its benefits upon a showing that he [or she] ‘has fulfilled the
conditions of probation for the entire period of probation.’ It was apparently
intended that when a defendant has satisfied the terms of probation, the trial
4
court should have no discretion but to carry out its part of the bargain with
the defendant.” (People v. Chandler (1988) 203 Cal.App.3d 782, 788, italics
added; accord, People v. Johnson (1955) 134 Cal.App.2d 140, 144 [discussing
former version of statute].) Additionally, a defendant whose probation is
“terminated before the original term had expired” is considered “ ‘discharged
prior to the termination of the period of probation’ ” for purposes of
section 1203.4. (People v. Hawley (1991) 228 Cal.App.3d 247, 250.)
Defendant was therefore entitled to the requested relief under the statute
because, as the superior court noted, his probation “was terminated by
operations [sic] of law under [Assembly Bill] 1950” before the original
probationary term had expired. Further, it is undisputed that defendant
fulfilled all of his probation conditions during his probation.
The case the superior court relied on, Johnson, supra, 211 Cal.App.4th
252, is inapposite. In Johnson, that defendant sought dismissal of a
misdemeanor complaint under section 1203.4 after his probation was
terminated early due to a pending prison term. The appellate court noted
that where “the defendant’s probation period terminates prior to the
expiration of the statutorily prescribed period, the defendant must establish
that he fulfilled the conditions of probation, or was excused from complying
with the conditions of probation, or discharged from the conditions prior to
the termination of probation. [Citation.] Otherwise, he or she has not been
‘discharged’ prior to termination of the period of probation.” (Johnson, at
p. 264.) The court concluded that the defendant “never fulfilled the
prescribed conditions of probation during the probationary term, and because
his period of probation was not terminated for good conduct, but, rather,
because a prison term had been imposed on him in other felony cases, he was
not eligible for relief under Penal Code section 1203.4.” (Ibid.)
5
Defendant’s case here is not comparable. He was discharged from
probation due to a statutory amendment, rather than his own continuing
criminal misconduct. And he was denied relief solely because, as a result of
this amendment, he did not serve the full three years; not because of any
other conditions of probation that he failed to meet. He is accordingly
entitled to relief pursuant to section 1203.4.
III.
DISPOSITION
The order denying defendant’s motion for dismissal is reversed. The
case is remanded to the superior court with directions to grant defendant’s
motion and undertake any necessary further proceedings, consistent with
this opinion, to effectuate the dismissal of the misdemeanor charge identified
in defendant’s motion.
6
EAST, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162473
People v. Balboa
Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
7