People v. Daffeh

• Docket Number: A166899
• Decision Date: 29 August 2024
• Citation: 325 Cal.Rptr.3d 295,104 Cal.App.5th 790
• Parties: The PEOPLE, Plaintiff and Respondent, v. Baboucar Henri DAFFEH, Defendant and Appellant.
• Court: California Court of Appeals

325 Cal.Rptr.3d 295

104 Cal.App.5th 790

The PEOPLE, Plaintiff and Respondent,

v.Baboucar Henri DAFFEH, Defendant and Appellant.

A166899

Court of Appeal, First District, Division 5.

Filed August 29, 2024

Trial Court: Contra Costa County Superior Court, Trial Judge: Laurel S. Brady(Contra Costa County Super. Ct.No. 05001800895)

Karriem Baker, Folsom, under appointment by the First District Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General, for Plaintiff and Respondent.

CHOU, J.

DefendantBaboucar Henri Daffeh appeals from an order denying his petition for dismissal of his misdemeanor conviction pursuant to Penal Code section 1203.4, which provides relief when a defendant has fulfilled the conditions of his probation throughout the probation period.¹The prosecutor had urged the trial court to deny the petition because the issue of direct victim restitution was reserved at Daffeh’s sentencing.(§ 1202.4, subd. (f).)Although the prosecutor did not bring the victim’s restitution claim to the court’s or Daffeh’s attention before his probation period ended and the courtnever ordered Daffeh to pay a specific amount of restitution, the prosecutor nonetheless contended, and the court apparently agreed, that Daffeh’s failure to pay constituted a failure to comply with a condition of his probation.We will reverse the order denying his section 1203.4 petition.

I.FACTS AND PROCEDURAL HISTORY

Daffeh was charged with driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) and receiving stolen property (§ 496d, subd. (a)).According to the victim’s testimony at Daffeh’s preliminary hearing, the victim’s work truck went missing on or about August 13, 2017 and was recovered on August 19, 2017.

On January 11, 2018, the victim provided the prosecutor’s office with a restitution claim for $440, seeking recovery for "work key replacement," two days of wage loss, a baseball cap, a special knife for electricians, and gas money to get to court.The appellate record does not contain any documentation for the losses.Nor is there any indication that the prosecutor alerted Daffeh to the restitution claim before his probation expired.

On February 28, 2018, Daffeh signed a written agreement to plead no contest to misdemeanor vehicle theft (Veh. Code, § 10851, subd. (a)).His plea form did not mention victim restitution.

At the plea and sentencing hearing that same day, the trial court accepted Daffeh’s plea, dismissed the second count, and stated the terms of his sentence as follows: "I am going to place you on three years of court probation, so you don’t have a probation officer, but you do have to obey all laws.I will impose 120 days county jail, but you have credit for 92 actual, to which I will add 92 conduct credits, so you have credit [for] time served on that.[¶] The law does require me though to impose a $150 restitution fine, and impose but stay another $150 fine that only goes into effect if you violated probation.Plus the legislature requires me to impose a $30 court conviction fee and a $40 court administrative fee.[¶] Now, bear with me here.Am I reserving any actual restitution?"The prosecutor replied, "Yes, your Honor."The court then stated: "Okay.I’ll reserve any actual restitution."(Italics added.)The prosecutor did not mention the victim’s restitution claim, and the court did not state that payment of victim restitution would be a condition of probation.The court concluded by telling Daffeh: "So we’re gonna give you some paperwork, and in three years you will come back in and you’ll be successful, and I will take this off your record.Deal?"Daffeh replied, "I will.Deal."The court instructed Daffeh to "[j]ust have a seat, and we’ll get you the minute order."²

Daffeh’s three-year term of probation expired on February 27, 2021.At no time during that probation period had the trial court ordered Daffeh to pay any amount of direct victim restitution, let alone as a condition of his probation.Indeed, the prosecutor had done nothing to pursue a restitution claim or even advise Daffeh that a claim existed.

In October 2021, Daffeh filed a petition for dismissal under section 1203.4, alleging that he was entitled to dismissal of the charges because he had fulfilled the conditions of his probation for the entire probation period.

In February 2022, the probation department recommended that Daffeh’s petition be granted, confirming that Daffeh "met all the terms of his/her probation grant[,]"he had not committed any offenses after being placed on probation, and "victim restitution was not ordered."(Italics added.)

Nonetheless, at a hearing on June 3, 2022, the prosecutor objected to Daffeh’s petition.The prosecutor told the trial court that "[t]he defendant still owes $440 in restitution" even though no such restitution order had ever been entered.The court continued the matter so Daffeh’s attorney could contact Daffeh and consider the restitution claim.

At a hearing on June 24, 2022, Daffeh’s counsel explained that the prosecutor had given him a "request for victim restitution that was filled out by the victim in January of 2018" for $440, but neither Daffeh nor his counsel had received the request previously.Because the "$440 was never ordered" as a probation condition, Daffeh urged that his petition for dismissal be granted.The trial court asserted: "So I’m looking at the minute order from the date of the plea, which was 2-28 of '18.Victim restitution was reserved….There isn’t any further action on this before probation expired.So someone should have taken action on that."The court continued the matter for the parties to brief whether it had jurisdiction to impose restitution after the probation period.

Daffeh filed a "motion opposing the claim for victim restitution."(Capitalization omitted.)He asserted that the trial court lacked jurisdiction to impose restitution after his probation term ended and, even if the court did have jurisdiction, his petition to dismiss should be granted because he had fulfilled the conditions of his probation.

On July 20, 2022—over four years after Daffeh’s sentencing and roughly 17 months after his probation had ended—the prosecutor finally filed a motion for victim restitution.The prosecutor contended not only that the trial court retained jurisdiction to order restitution, but that Daffeh’s petition should be denied because he had not paid the $440 that he was never ordered to pay.

At a further hearing two days later, Daffeh reiterated that his petition should be granted because "restitution was never requested and never ordered before probation expired, nor was [ ] Daffeh ever given notice of this 440-dollar amount."The prosecutor insisted that the petition should be denied.The trial court observed that "Number 6 on the minute order says, with a check-box, [‘]Pay victim restitution of,[’] and there’s a dollar amount and a line, and it says, [']Reserved, PC1202.4(f).’ "Questioning whether a restitution claim could continue indefinitely despite "zero action" taken on it, the court noted that, "as a practical matter, at least in this county, every disposition includes restitution reserved.That’s sort of a default position for all."The court again took the matter under submission.

By written order filed on July 28, 2022, the trial court denied Daffeh’s petition for dismissal.Daffeh filed a notice of appeal on October 11, 2022, which we filed as timely in light of a representation by Daffeh’s attorney that she had not received notice of the court’s decision until October 10, 2022.

II.DISCUSSION

Daffeh’s petition for dismissal is governed by section 1203.4, subdivision (a)(1), which reads: "When a defendant has fulfilled the conditions of probation for the 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 defendantshall, 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 courtshall 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 [s]ection 13555 of the Vehicle Code[regarding revocation of driver’s licenses]."(Italics added.)

[1]This statutory provision is clear.If the defendant"fulfilled the conditions of probation for the entire period of probation,"the trial court"shall" allow the defendant to withdraw their guilty plea and "shall thereupon dismiss the accusations or information."(§ 1203.4, subd. (a)(1).)Dismissal in this circumstance is mandatory.(People v. Seymour(2015)239 Cal.App.4th 1418, 1430, 192 Cal.Rptr.3d 113;People v. Holman(2013)214 Cal.App.4th 1438, 1459, 155 Cal.Rptr.3d 164;People v. Chandler(1988)203 Cal.App.3d 782, 788, 250 Cal. Rptr. 730(Chandler).)

[2] Here, as the probation department informed the trial court, Daffeh fulfilled the conditions of his probation for the entire probation period.At no time during the probation period had the court ordered Daffeh to pay any amount in victim restitution as a condition of probation.

Moreover, Daffeh did not know about the victim’s restitution claim and bore no responsibility for his alleged failure to pay that claim before his probation expired.Because his failure to pay victim restitution was the only argument raised against Daffeh’s petition for dismissal, the...