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Name: People v. Parker
Case #: B243010
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/24/2013

Where a prison sentence is imposed but suspended in execution, a qualified defendant remains a “probationer” within the meaning of Penal Code section 1203.4, and is eligible for expungement of conviction. Parker filed a section 1203.4 petition to set aside his 2006 conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The trial court found Parker ineligible for relief because a prison term had been imposed but suspended in execution. He appealed. Held: Reversed. Section 1203.4 applies to probationers. Parker is a probationer even though the court imposed a prison term because it was not executed. Under section 1203, subdivision (a), “probation” means the suspension of imposition or execution of a sentence. In denying the motion the trial court relied on People v. Howard (1997) 16 Cal.4th 1081, which is factually distinguishable; it stands for the rule that when sentence has been imposed but suspended in execution incident to a grant of probation, the trial court lacks jurisdiction to reduce the sentence upon revocation of probation and execution of the sentence. However, where execution of a sentence remains suspended, the sentencing court retains jurisdiction over the defendant, which includes the jurisdiction to set aside the conviction under section 1203.4.