People v. Bradley

• Decision Date: 28 February 1967
• Docket Number: Cr. 5739
• Citation: 248 Cal.App.2d 887,57 Cal.Rptr. 82
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Norman BRADLEY, Defendant and Appellant.

Page 82

57 Cal.Rptr. 82

248 Cal.App.2d 887

PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Norman BRADLEY, Defendant and Appellant.

Cr. 5739.

Court of Appeal, First District, Division 2, California.

Feb. 28, 1967.

Thomas Norman Bradley, in pro. per.

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, John P. Oakes, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant, Thomas N. Bradley, in pro. per., appeals from an order dated April 8, 1966, denying his application to expunge the record of his prior conviction pursuant to section 1203.4 of the Penal Code. He contends that the trial court erred in denying him the mandatory relief provided by the statute.

The facts are not in dispute. On December 7, 1964, defendant was convicted on his plea of guilty to attempted burglary, a felony, in violation of section 459 of the Penal Code. ¹ The court suspended imposition of the sentence, placed defendant under the supervision of the probation officer and as a condition of probation ordered defendant to spend six months of the probationary period in the county jail. On April 16, 1965, on petition of the probation officer, the term was reduced to the time already served, probation was terminated and defendant released. On October 19, 1965, defendant was charged by information with robbery (Pen.Code, § 211), kidnapping (Pen.Code, § 207) and three prior convictions, the third being the 1964 attempted burglary. On December 7, 1965, defendant pled guilty to the charge of auto theft, an offense included within the offense charged in the first count of the information, and admitted the third prior, the attempted burglary. Thereafter, on the motion of the district attorney, the kidnapping count of the information and the first and second prior convictions were dismissed. Defendant's motion for probation was denied and he was sentenced to the state prison for the term prescribed by law. ² On March 30, 1966, defendant filed his application seeking withdrawal of his plea of guilty to the attempted burglary charge and dismissal of the accusation pursuant to section 1203.4 of the Penal Code.

Section 1203.4 of the Penal Code provides: 'Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.'

Defendant relies on People v. Johnson, 134 Cal.App.2d 140, 285 P.2d 74. In that case, the defendant was convicted of felony drunk driving, given probation and sometime after the expiration of the probationary period, applied for dismissal. The trial court denied the application on the ground that seven months after expiration of the probationary period, the defendant again violated the same Vehicle Code section. In reversing, the appellate court said at pages 143 and 144, 285 P.2d at page 76: 'The law does not require positive proof of total and permanent reformation or rehabilitation as a condition to surrender of the right to impose judgment and sentence, for there could be no such proof. * * * The theory seems to be that if one with a reasonably satisfactory background commits a crime, the experience of apprehension and processing through court, together with the restrictions imposed through probation upon unlawful or intemperate conduct, may effect a greater degree of reformation than jail or prison confinement, and a showing that the terms of probation have been complied with would support a hope, at least, that reformation had been accomplished.'

The court went on to...