People v. Mendez

• Citation: 286 Cal.Rptr. 216,234 Cal.App.3d 1773
• Decision Date: 03 October 1991
• Docket Number: No. A051970,A051970
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Henry A. MENDEZ, Jr., Defendant and Respondent.

Page 216

286 Cal.Rptr. 216

234 Cal.App.3d 1773

PEOPLE of the State of California, Plaintiff and Appellant, v. Henry A. MENDEZ, Jr., Defendant and Respondent.

No. A051970.

Court of Appeal, First District, Division 5, California.

Oct. 3, 1991.

As Modified on Denial of

Rehearing Nov. 4, 1991.

Review Denied Jan. 8, 1992.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., Charles R.B. Kirk, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

Eric Weaver, Albany, for defendant and respondent.

HANING, Associate Justice.

The People appeal an order denying their motion to vacate orders setting aside respondent Henry A. Mendez, Jr.'s 1973 robbery conviction (Pen.Code, § 211), ¹ substituting a misdemeanor grand theft conviction (§ 487), and sealing the records of the resultant misdemeanor conviction. The People contend the superior court lacked jurisdiction to reopen the 1973 conviction and to order the record sealed. We reverse.

PROCEDURAL HISTORY AND FACTS

On January 12, 1973, respondent pled guilty to second degree robbery and was committed to the California Youth Authority (CYA). He was 19 years old at the time of the November 7, 1972 offense. In September 1975 he was honorably discharged from CYA and in November 1975 the superior court issued an order, nunc pro tunc, setting aside the guilty plea as of February 2, 1973, dismissing the information and releasing him from all penalties and disabilities resulting from the offense. (Welf. & Inst.Code, § 1772.)

On November 22, 1989, respondent filed a "Petition to Seal Minor's Records of Misdemeanor Conviction in Criminal Court and Other Records of Offense" (§ 1203.45), and an "Application to Withdraw Misdemeanor Conviction After One Year Without Probation, to Dismiss the Case, and for Relief From All Penalties and Disabilities Resulting From Offense." (§ 1203.4a.) The petition and application were apparently never acted upon and the record shows a line drawn through the first page of each. On December 12, 1989, respondent filed a "Petition and Order for Release from Penalties and Dismissal Under [Penal Code section] 1203.4a" and a second "Petition and Order for Sealing of Record Under [Penal Code section] 1203.45...."

On December 21, 1989, respondent, his counsel and the Alameda County District Attorney stipulated that respondent's robbery conviction be vacated and a misdemeanor grand theft charge be substituted. The parties further stipulated that respondent could plead guilty to the misdemeanor and thereafter seek to have the misdemeanor record sealed pursuant to section 1203.45. On the same day the superior court approved the stipulation and ordered the misdemeanor record sealed. On January 18, 1990, the court issued another order granting respondent's petition to seal the misdemeanor record pursuant to section 1203.45.

On February 2, 1990, respondent filed a "Petition for Reduction of Felony to Misdemeanor Pursuant to the Provisions of Section 17 Penal Code," declaring that he had been convicted of section 487, subdivision 2, and the court ordered the offense reduced accordingly. On the same day the court signed another order sealing the record. ²

On January 30, 1990, respondent received a gubernatorial pardon, except with respect to his right to possess a firearm. ³ A February 5, 1990 letter from the Governor to respondent stated, in relevant part: "You should understand, however, that this pardon does not seal your record but rather is merely added as another entry. You are still required to acknowledge your prior felony conviction(s)." An amended pardon was issued on May 2, 1990, making typographical changes only.

On September 14, 1990, seven months after the sealing order issued, the People filed a "Motion to Vacate Sealing and Other Orders," by which they challenged the court's jurisdiction to vacate respondent's robbery conviction and substitute a misdemeanor, and to seal the records. The thrust of the People's objection is that respondent has applied for various peace officer jobs within the state, and the sealing order conceals his robbery conviction from the inquiring law enforcement agencies. Respondent has also apparently applied for relief from federal firearms restrictions.

The trial court denied the People's motion, but granted a stay of its challenged orders.

DISCUSSION

Assuming the validity of a final judgment of conviction, any entitlement to post-conviction relief, and the form thereof, is governed by statute. Other than a gubernatorial pardon, the Legislature has established three avenues of post-conviction relief from criminal convictions.

First, section 1203.4 permits convicted felons or misdemeanants who have been granted probation to petition the court for release from the penalties and disabilities resulting from the conviction after their probationary period has terminated. Under this procedure, the probationer withdraws his or her plea of guilty or nolo contendere and enters a plea of not guilty or, if convicted after a plea of not guilty, the court sets aside the verdict or judgment of guilt and, in either case, the accusatory pleading is then ordered dismissed. Thereafter, the probationer is released from the penalties and disabilities resulting from the conviction with certain exceptions pertaining, inter alia, to restrictions on ownership and possession of firearms (§ 1203.4, subd. (a)), and the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery. (§ 1203.4, subd. (a).)

Second, section 1203.4a provides similar relief for persons convicted of misdemeanors and not granted probation. Neither section 1203.4 nor section 1203.4a apply to persons convicted of felonies and committed to CYA. Post-conviction relief for such persons is regulated by Welfare and Institutions Code section 1772.

Welfare and Institutions Code section 1772 provides that persons who have been honorably discharged from CYA may petition the court for release from all penalties and disabilities resulting from the offense for which they were committed, "including, but not limited to, any disqualification for any employment or occupational license, or both, created by any other provision of law...." (Welf. & Inst.Code, § 1772, subd. (a).) Although persons convicted of a felony and honorably discharged are disqualified from employment as peace officers of the state, a county, a city, or other political subdivision (Welf. & Inst.Code, § 1772, subd. (a); Gov.Code, § 1029), they may be employed as peace officers of the Department of the Youth Authority if (1) at least five years have passed since their honorable discharge, and they have had no misdemeanor or felony convictions except for traffic misdemeanors since being honorably discharged, or (2) they were employed as a peace officer by the Department of Youth Authority on or before January 1, 1983. (Welf. & Inst.Code, § 1772, subd. (b).) ⁴ Persons convicted of a felony, other than a felony punishable by death, who are honorably discharged from CYA, and demonstrate the ability to assist people in rehabilitation programs, may be employed as parole officers of the Department of Corrections or the Department of the Youth Authority, or in a county probation department if they have been granted a full and unconditional pardon for the felony for which they were convicted. (Gov.Code, § 1029, subd. (b).) However, Welfare and Institutions Code section 1772 does not release a person from the prohibition of section 12021, which prohibits persons convicted of a felony from owning or possessing a firearm.

Section 17 authorizes the trial court to reduce certain felonies to misdemeanors. Under subdivision (b), the court may reduce a felony to a misdemeanor "[w]hen a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail...." Under subdivision (c), "[w]hen a defendant is committed to [CYA] for a crime punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, the offense shall, upon the discharge of the defendant from [CYA], thereafter be deemed a misdemeanor for all purposes." Robbery is not an offense "punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail...." (§ 17, subd. (b).) Robbery is a straight felony, and section 17 does not authorize the reduction of straight felonies to misdemeanors (see People v. Beebe (1989) 216 Cal.App.3d 927, 930, 265 Cal.Rptr. 242), nor does it, or any other statute, authorize the modification of a final conviction of robbery to one of grand theft. ⁵

The power of the court to seal conviction records also derives solely from legislative authority. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 876, 132 Cal.Rptr. 464, 553 P.2d 624; People v. Glimps (1979) 92 Cal.App.3d 315, 321, 155 Cal.Rptr. 230; McMahon v. Municipal Court (1970) 6 Cal.App.3d 194, 199, 85 Cal.Rptr. 782.) With certain exceptions, section 1203.45 permits the court to seal the misdemeanor record of a person who was under the age of 18 at the time the misdemeanor was committed (or under age 21 if the offense occurred prior to March 7, 1973) and who is eligible for or has received relief under section 1203.4 or section 1203.4a. No similar relief is provided for an adult felon or misdemeanant, or a juvenile honorably discharged from CYA after commitment for a straight felony.

Respondent contends that Penal Code section 1203.4, subdivision (a) authorizes the trial court to grant him the relief he seeks in the interest of justice. Penal Code section 1203.4, subdivision (a), states, in pertinent part: "In any...