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Name: People v. Marinelli
Case #: H039416
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/27/2014

A defendant convicted of attempted lewd and lascivious acts on a child under 14 years (Pen. Code, §§ 664, 288, subd. (a)) is eligible for relief under Penal Code section 1203.4, subdivision (a). In 2008, appellant pled no contest to attempted lewd and lascivious acts on a child under 14 years (Pen. Code, §§ 664, 288, subd. (a)) and was granted formal probation. After successfully completing probation, he filed for relief under section 1203.4, subdivision (a), which was granted. The prosecution then appealed. Held: Affirmed. Section 1203.4, subdivision (a) permits a defendant who has successfully completed probation to withdraw his plea and receive a dismissal of the conviction. In subdivision (b), certain offenses are exempted from the statute’s relief, including violations of section 288. On its face, the statute does not expressly except attempted violations of section 288. Applying rules of statutory construction, the court observed that the statute references only violations, not attempted violations, and that it is well established that an attempt is an offense separate and distinct from the completed crime. So, under the plain language of the statute, section 1203.4, subdivision (b) does not apply to attempted violations of section 288, subdivision (a). This finding also comports with the legislative intent behind the statute. The history of section 1203.4, subdivision (a) indicates that the purpose of the specified exclusion is to prohibit those convicted of specified sex offenses to expunge his or her record under section 1203.4, thereby conserving significant investigative resources that would otherwise be expending in handling petitions filed by individuals convicted of sex offenses. This purpose is not thwarted if the section applies only to completed sex offenses and not attempts.