The opinion
Filed 6/9/21 P. v. Brown CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306099
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089354)
v.
SHELLEE BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Richard M. Goul, Judge. Reversed and
remanded with directions.
A New Way of Life Reentry Project and CT Turney for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Shellee Brown appeals from the
denial of her petition for dismissal pursuant to Penal Code
section 1203.4. We reverse and remand for further proceedings
consistent with this opinion.
BACKGROUND
In June 2011, defendant had an altercation with one of her
sons, who was 17 years old at the time. The son reported to
police that defendant bit his arm during an argument, sprayed
him in the face with mace and then splashed his back with bleach
while he was washing his face.
Defendant agreed to plead no contest to two counts of child
abuse (Pen. Code, § 273a, subd. (a)) and one count of assault with
a chemical (§ 244). The probation report stated defendant had no
prior felony or misdemeanor convictions and was suitable for a
grant of probation.
On October 24, 2011, the court placed defendant on
five years formal probation. The terms of defendant’s probation
included psychological counseling and a protective order in favor
of her two sons and her mother (B.A.) who apparently assisted in
caring for the boys.
On September 13, 2012, defendant’s counsel requested the
court set a hearing for modification of probation. The next day,
defendant’s mother (B.A.) sent a letter to the court making
various accusations against defendant, including that defendant
yelled at B.A. in front of the courthouse and “grabbed” and held
onto one of her sons in violation of the protective order.
The modification hearing took place on September 20, 2012.
The minute order for that date provides that “[o]n defendant’s
motion, protective order is modified as reflected on it’s [sic] face.”
The face page of the form protective order bears the initials of
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Judge Romero near box 13 pertaining to peaceful contact with the
protected persons identified in the order.
In June 2015, defendant’s probation officer reported to the
court, in connection with defendant’s request for permission to
leave the country for a brief period, that defendant was attending
psychological counseling, making payments on her financial
obligations and was otherwise “in compliance with all terms and
conditions of probation.” Defendant’s request for permission to
travel was granted by the court.
Defendant’s probation term ended in October 2016.
In March 2020, defendant filed a petition for dismissal
pursuant to Penal Code section 1203.4, requesting the
withdrawal of her no contest pleas to the three 2011 felonies and
the dismissal of those charges on the grounds she fully performed
the conditions of her probation for the entire five-year term. In
the declaration attached to her petition, defendant stated, among
other things, that she and her son were living together and “in a
really good place” and had been doing well together for several
years; that she was attending classes; and that she hoped to clear
her record so that it would not be a hindrance when applying for
jobs and housing.
The record does not contain any opposition by the People to
defendant’s petition.
On March 16, 2020, the court denied defendant’s petition
without a hearing. The denial order does not identify any
grounds for the denial.
Defendant appealed. We grant defendant’s request for
judicial notice of her CLETS report (California Law Enforcement
Telecommunications System). We also grant defendant’s request
for that report to be filed under seal.
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DISCUSSION
Under Penal Code section 1203.4, subdivision (a)(1), a
defendant who “has fulfilled the conditions of probation for the
entire period of probation” may file a petition seeking permission
“to withdraw his or her plea of guilty or plea of nolo contendere
and enter a plea of not guilty” and “the court shall thereupon
dismiss the accusations or information against the defendant,”
releasing the defendant “from all penalties and disabilities
resulting from the offense of which he or she has been convicted.”
It has long been held the statutory language of Penal Code
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 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 (Chandler), italics
added; accord, People v. Johnson (1955) 134 Cal.App.2d 140, 144
[discussing former version of statute].)
We see nothing in the record to support denial of
defendant’s statutory right to expungement. There is nothing in
the record to suggest the probation department reported any
violation, the prosecutor alleged any violation, or the court found
any violation of the terms of defendant’s probation during the
five-year probationary term. Defendant’s CLETS report shows
no arrests or convictions after the 2011 convictions arising from
the altercation with her son. Shortly before the end of the five-
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year probationary term, the court granted defendant’s request for
permission to travel outside of the country which request was
supported by defendant’s probation officer who reported that
defendant was in full compliance with the terms of her probation.
Respondent speculates the trial court modified probation in
September 2012 because it found defendant violated probation
based on the B.A. letter. Nothing in the record supports that
speculative contention. Apparently, the letter was in the court
file, but there is no indication the trial court ever relied on it to
make any finding or order. The September 2012 probation
modification hearing was set at defendant’s request. The court’s
minute order granting the modification states, “[o]n defendant’s
motion, protective order is modified as reflected on it’s [sic] face.”
The face page of the protective order bears Judge Romero’s
initials near paragraph 13 which permits peaceful contact
between defendant and the protected persons. It appears to us
the court modified the protective order on September 20, 2012, at
defendant’s request to allow her to have peaceful contact with her
sons and mother.
Respondent relies on Chandler, supra, 203 Cal.App.3d 782,
which is distinguishable from this case. Respondent cites the
case for the proposition that a court’s decision not to formally
revoke probation does not preclude a later denial by the court of a
defendant’s petition for dismissal under Penal Code
section 1203.4. But in Chandler, the probation officer reported
the defendant had not completed payment of the victim
restitution. (Chandler, at p. 785.) The court revoked probation
and set a formal violation hearing. (Id. at pp. 785–786.) At the
hearing, the court found the defendant had not satisfied the
probationary term to pay victim restitution, but the court
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exercised its discretion to neither extend the probationary period
nor revoke probation. The Court of Appeal affirmed the court’s
subsequent denial of the defendant’s petition for dismissal,
because “the court specifically found defendant had not satisfied
the probation condition on restitution.” (Id. at p. 789.) We do not
understand why respondent cited Chandler in this case, since the
probation officer and the court here found defendant complied
with the probationary terms.
In sum, we find nothing in the record to justify the trial
court’s denial of the petition for dismissal, and we are flummoxed
by respondent’s brief opposing reversal.
DISPOSITION
The order denying defendant’s petition for dismissal is
reversed. The case is remanded to the superior court with
directions to grant defendant’s petition and undertake any
necessary further proceedings, consistent with this opinion, to
effectuate the dismissal of the felony charges identified in
defendant’s petition.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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