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Name: People v. McLernon
Case #: B209952
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 05/29/2009

In determining whether relief under Penal Code section 1203.4 (expungement) is warranted, the court may consider any relevant information, including defendant’s post-probation conduct. Under Penal Code section 1203.4, a defendant who has been convicted of a crime and granted probation is entitled to have his record expunged, with the accusation dismissed, if (a) he has fulfilled the conditions of probation for the entire period of probation; (b) he has been discharged from probation before termination; or (c) the court, in its discretion, finds that defendant, in the interest of justice, is entitled to relief. In this case, appellant violated his pre 1995 grant of probation once with a “dirty” drug test, but thereafter complied with all the terms and ultimately completed probation. Some twelve years later, he requested the court, in the interests of justice, grant him relief under section 1203.4. The court denied the request, noting that appellant’s two prior requests had been denied as he has not successfully completed probation. The appellate court reversed, finding that the plain language of the 1971 amendment to the statute giving trial courts the power to set aside the conviction after the termination of probation in the interest of justice, permitted the court to consider any relevant information, including defendant’s post-probation conduct. The appellate court also rejected the Attorney General’s claim that res judicata prevented appellant from seeking relief after two prior denials. A request for relief under the interests of justice is based on facts as they exist at the time of the request and the facts may be different at different times, such that denial of a prior request for relief under the statute does not later preclude reconsideration of a request based on different facts.