1

Filed 12/14/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
JAMES ALBERT RICCI,
Defendant and Appellant. A151291

(Sonoma County Super. Ct. No. SCR22536)

This appeal presents the following issue: May a defendant who has suffered both

felony and misdemeanor conviction s in the sam e case seek the dismissal of the

misdemeanor convictions under section 1203.4a? 1 The Attorney General concedes a
felony conviction does not disqualify a defendant from seeking relief as to misdemeanor

convictions in the same case . Finding the concession to be appropriate, we reverse the

trial court’ s order denying appellant ’s petitions for dismissal and direct the court to

consider those petitions on their merits.

I. BACKGROUND
“[S]ection 1203.4 permits convicted felons or misdemeanants who have been

granted probation to petition the court for release from the penalties and disabilities

resulting from the conviction after their probationary period has terminated.

. . . [¶]

. . . [S]ection 1203.4a provides similar relief for persons convicted of misdemeanors and not
granted probation.” ( People v. Mendez (1991) 234 Cal.App .3d 1773, 1778.) The relief

afforded by these provisions is requir ed when specified conditions are met. ( People v.

1 Further statutory references are to the Penal Code unless otherwise indicated.2

McLernon (2009) 174 Cal.App.4th 569, 574

– 575 ; § 1203.4, subd. (a)(1), § 1203.4a, subd.

(b).) In other situations, relief is available in t he court’s discretion in the interest s of

justice. ( Ibid .) 2

In 1989, in case number MCR97449, appellant was placed on probation after

being convicted of one misdemeanor count of evading a peace officer under Vehicle

2 Section 1203.4 provides in relevant part: “(1 ) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probatio n, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of proba ti on, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.”
Section 1203.4a provides in relevant part : “(a) Every d efendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime, and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, b e permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; or if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and
in either case the court s hall thereupon dismiss the accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Chapter 3 (commencing with Se ction 29900) of Division 9 of Title 4 of Part 6 of this code or Section 13555 of the Vehicle Code. [¶] (b) If a defendant does not satisfy all the requirements of subdivision (a), after a lapse of one year from the date of pronouncement of judgment, a co urt, in its discretion and in the interests of justice, may grant the relief available pursuant to subdivision (a) to a defendant convicted of an infraction, or of a misdemeanor and not granted probation, or both, if he or she has fully complied with and

p erformed the sentence of the court, is not then serving a sentence for any offense, and is not under charge of commission of any crime.”3

Code sectio n 2800.1 . In 1996, in case number SCR22536, appellant was convicted after

a jury trial of one felony count of criminal threats under section 422 and three

misdemeanor counts : child abuse under section 273a , subdivision (b), vandalism under

section 594, subdivision (a), and being un der the influence of a controlled substance

under Health and Safety Code section 11550, subdivision (a). He was denied probation

and sentenced to prison.

In 2016, appellant filed amended petitions for dismissal of his misdemeanor

convictions in case num

bers MCR97449 and SCR22536. The petition in case number

MCR97449 alleged appellant had suffered a misdemeanor conviction for evading a peace

officer, had been granted probation, and was entitled to relief in the interests of justice

under section 1203.4. The petition in case number SCR22536 alleged appellant had been

convicted of three misdemeanors, had not been placed on probation, and was entitled to

relief in the interests of justice under section 1203.4a. Because probation had not been

granted in cas e number SCR22536, and because section 1203.4a applied only to

misdemeanors, the petition in case number SCR22536 sought dismissal only of the

misdemeanor counts in that case and did not seek any relief with respect to the felony

count

. 3

The trial court i ssued a written order denying the petition in case number

SCR22536. It concl uded the relief authorized by section 1203.4a was not available when

a defendant had been convicted of both misdemeanors and a felony, noting (1) the title of

section 1203.4a was “ Rehabilitation of M isdemeanants ” (italics added) ; 4 and (2) the

3 At the hearing on the motions, defense counsel indicated that if the court
dismissed the misdemeanors under section 1203.4a, appellant would seek a certificate of rehabilitation under section 4852.01 on the remaining felony count.

4 The language quoted in the order does not appear in the West’s Annotated or Deering’s version of the Penal Code. The title of the statut e in the Deering ’s version is: “Change of plea and dismissal of charges against nonprobationed misdemeanant or
defendant who has committed an infraction after performance of sentence; Release from penalties and disabilities; Subsequent offenses; Applicabil ity; Reimbursement; Petition by written declaration.” ( Deering ’s Ann. Penal Code (2016 ed.) § 1203.4a, p. 29 (2017 Pocket Supplement, issued December, 2016) .) The title of the statute in the West’s4

remedy under section 1203.4a called for the dismissal of the accusatory pleading, and an

accusatory pleading could not be dismissed in its entirety in cases where one or more

felony counts remained. Although the court’s written order included case nu mber

MCR97449 in its caption, the court did not purport to rule on the section 1203.4 petition

for dismissa l filed in that case

.
II. DISCUSSION

T he parties agree the trial court had the autho rity to rule on the merits of the

petition under section 1203.4a in case number SCR22536 , notwithsta nding that appellant

was convicted of a felony count in addition to the three misdemeanor counts for which

relief was sought

. Section 1203.4a, subdivision (a), applies to “[e]very defendant
convicted of a misdemeanor and not granted probation” who meets certain criteria.

Because appellant was convicted of misdemeanors in case number SCR22536 and was

not granted probation, section 1203.4a applies to those ch arges by its plain terms

. “ ‘ If
the language of the statute is not ambiguous, the plain meaning controls[.]” ( In re

Jennings (2004) 34 Cal.4th 254, 263.) The title of section 1203.4 quoted in the trial court

order , which referred to “misdemeanants,” doe s not change the plain m eaning of the

statute itself . “ ‘ Title or chapter headings are unofficial and do not alter the explicit

scope, meaning or intent of a statute. ’ ” ( People v. Wheeler (1992) 4 Cal.4th 284, 293

–
294 ; see also In re Gina S. (2005) 133 Cal.App.4th 1074, 1083, fn. 9 .)

Our interpretation of section 1203.4a is supported by People v. Mgebrov (2008)

166 Cal.App.4th 579

, 582 ( Mgebrov )

, in which the court affirmed an order granting relief

under related section 1203.4 as to two of t he three felony counts for whic h probation had

been granted, even though the third conviction was a violation section 288, which was

explicitly excluded from the provisions of section 1203.4. The court rejected an

argument by the People that defendants wh o stood convicted of multiple counts were not

Annotated version is: “ M isdemeanor or infraction sentenc e served ; dismissal of charge; release from penalties and disabilities; discretion of the court; exceptions .” (West’s Ann.
Code (2016 ed.) § 1203.4a, p. 20 ( 2017 Pocket Part).)5

entitled to relief under section 1203.4 if any of the counts were ineligible

. “ ‘ “[S] tatutes
which are in pari materia should be read togeth er and harmonized if possible. ” ’ ”

( Mgebrov

, supra , 166 Cal.App.4th at p. 587.) Section 1203 .4a, which concerns the same

subject matter as section 1203.4, should be similarly construed to allow relief to be

granted as to individual counts.

In concluding that relief was not available on individual misdemeanor counts

whe n the defendant was convicted of felony counts in the same case, the trial court noted

that section 1203.4a calls for the court to “dismi ss the accusatory pleading

. ” The court

reasoned that in a case involving both misdemeanor and felony counts, it could not

provide such relief because granting the petition as to the misdemeanor counts would not

result in the dismissal of the entire accusatory pleading. But nothing in the statute

precludes the court from dismissing only misdemeanor counts in cas es involving both

felonies and misdemeanors , and a s a matter of logic, a court can dismiss individual

counts as readily as an entire accusatory pleading. (See Mgebrov

, supra , 166

Cal.App.4th at p. 595 [in case where relief granted as to some but not all f elony counts

under section 1203.4, court should have entered order dismissing those charges without

dismissing remainder of accusatory pleading] .)

The trial court erred in concluding it was not authorized to r ule on the merits of
appellant’s section 1203. 4a petition in case number SCR 22536. It also failed, apparently

through an oversight, to issue a ruling on the section 1203.4 p etition in case number

MCR97449, which involved only a single misdemeanor conviction for which probation

was granted. Remand is required so the court can rule on both petitions on their merits.

III. DISPOSITION

The trial court’s order is vacated and the matter is remanded with instructions to

reconsider appellant’s petitions in case numbers SCR22536 and MCR97449 and to issue

a ruling on each petition on the merits.6 NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.

(A151291)7

Sonoma County Superior Court, No. SCR22536, Patrick Broderick, Judge.

New Beginnings Law Center, Elissa C. Lasserre on behalf of Defendant and Appellant.

Attorney General, Xavier Becer ra; Chief Assistant Attorney General Gerald A. Engler;

Senior Assistant Attorney General Jeff r e y M. Laurence; Supervising Deputy Attorney

General, Donna M. Provenzano, Deputy Attorney General Arthur P. Beever, on behalf of

Plaintiff and Respondent.