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Name: People v. Smith
Case #: A139403
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 06/30/2014

Sex offender who had completed probation was eligible under Penal Code section 1203.4 for dismissal of his convictions for violating Penal Code sections 288a, subdivision (b)(2) and 289, subdivision (i). In 1995, Smith entered into a negotiated plea agreement, pleading no contest to violations of Penal Code sections 288, subdivision (c), 288a, subdivision (b)(2), 289, subdivision (i), and 261.5, subdivision (d). Smith was placed on formal probation, which he successfully completed in 1999. In February, 2013, Smith moved to dismiss the pre-1997 sex offenses under section 1203.4, and that motion was denied. Smith appealed. Held: Reversed in part. Under section 1203.4 and subject to certain exclusions, a defendant who has successfully completed probation is entitled as a matter of right to dismissal of his or her convictions. Although section 1203.4 has been amended to prohibit dismissal of convictions for certain sex offenses, convictions under section 289, subdivision (i), and section 288a, subdivision (b)(2) are not excluded under any amendments. Therefore, the trial court erred by denying Smith’s motion to dismiss those convictions.

Trial court correctly denied section 1203.4 relief as to Smith’s section 288, subdivision (c) conviction. Effective 1998, while Smith was still on probation, section 1203.4 was amended to exclude certain offenses from dismissal, including sex offenses under section 288. Because section 1203.4 relief was not an implicit term of Smith’s plea agreement, he is subject to subsequent legislative amendments to the statute. (Doe v. Harris (2013) 57 Cal.4th 64.) Therefore, Smith was properly disqualified from dismissing his conviction for the violation of section 288.

Smith may renew constitutional argument regarding relief as to his section 261.5, subdivision (d) conviction on remand. In 2000, after Smith successfully completed probation, the Legislature amended section 1203.4 to prohibit dismissal of convictions for felony violations of section 261.5, subdivision (d). On appeal, Smith argued that the 2000 amendment cannot be constitutionally applied retroactively to him because to do so would impair a substantive vested right. (See Doe v. Harris (2013) 57 Cal.4th 64, 68.) The court declined to consider this issue because Smith did not present this theory for relief in the trial court below. However, he may renew his vested rights argument in the trial court, as the court must remand the case in any event.