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Filed 6/27/23 P. v. Phelps CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

ALEX ALLEN PHELPS,

Defendant and Respondent.

E078698

(Super.Ct.No. INF059428)

OPINION

APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge. 

Reversed.

Michael A. Hestrin, District Attorney, and Sophia Choi, Deputy District Attorney, 

for Plaintiff and Appellant.

Britton Donaldson, under appointment by the Court of Appeal, for Defendant and 

Respondent.
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INTRODUCTION

A trial court granted defendant and respondent Alex Allen Phelps’s petition for 

dismissal of all charges against him filed pursuant to Penal Code1section 1203.4b. The 

People appeal, and in its opening brief contend that the court had no authority to grant the 

petition since defendant failed to meet the statutory requirements for relief. 

On May 1, 2023, on our own motion, we requested supplemental briefing on 

whether the amendment to section 1203.4b, subdivision (a)(1), which expanded relief and

became effective on September 29, 2022, had any effect on the appeal. The parties 

submitted supplemental briefing as requested, which we have considered in deciding this 

case.

We agree with the People that defendant has failed to meet the statutory 

requirements for relief and reverse.

FACTUAL AND PROCEDURAL BACKGROUND2

Defendant’s son (the child), who was two and one-half months old, was left in 

defendant’s exclusive care and custody, while the child’s mother left to check on their 

other child. When she returned, the child was not breathing. They took the child to the 

hospital, where she died as a result of blunt-force trauma to the head. Defendant initially 

denied knowing how the child sustained a head injury, but then claimed the injury may 

1

 All further statutory references will be to the Penal Code unless otherwise 

indicated.

2

 Because defendant pled guilty pursuant to a plea agreement, the factual 

background is derived from the People’s request for disposition/ruling filed on August 

18, 2021.
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have occurred when she rolled off the couch and onto the carpet. During an autopsy, the 

medical examiner observed multiple retinal hemorrhages, a subdural hematoma, bruises 

and swelling to the brain, and a bruise on the child’s right eyelid. The medical examiner 

opined that the injuries were consistent with being struck or thrown against a soft object.

On December 1, 2008, the People filed an information charging defendant with 

murder (§ 187, subd. (a), count 1) and assault resulting in the death of a child under the 

age of eight (§ 273ab, count 2). On August 12, 2010, the People filed a first amended 

information charging defendant with voluntary manslaughter (§ 192, subd. (a), count 1) 

and four counts of infliction of cruel and inhuman corporal punishment on a child 

(§ 273d, subd. (a), counts 2-5). Pursuant to a plea agreement, defendant pled guilty to all 

five counts. The court sentenced him to 16 years four months in state prison, in 

accordance with the terms of the agreement.

On July 29, 2021, defendant filed a petition for dismissal pursuant to section 

1203.4b, alleging that he successfully participated in a conservation camp program called 

“Firefighter Training Program” from September 18, 2020, to the present. He also 

requested early termination of parole. Defendant attached a personal letter to the court 

stating that he served as an institutional firefighter from November 9, 2019, to September 

18, 2020, with the California Rehabilitation Center Fire Department. He also stated that

he was currently enrolled in the CAL-FIRE Ventura Training Center (VTC) Fire 

Academy in Camarillo, California. Defendant asked the court to dismiss his case so that 

he could obtain his Emergency Medical Technician (EMT) license. He attached 

documentation showing he was currently participating in the Firefighter Training and 
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Reentry Program at the VTC. A letter from Parole Agent Angelica Garcia indicated 

defendant was accepted into the voluntary 18-month program on November 16, 2020, 

and a letter from an administrative specialist at VTC also said he started in November 

2020. The documentation also included a letter from Fire Captain Mikeal Gates, who 

worked at the California Rehabilitation Center in Norco, stating that defendant was 

assigned to his institutional firefighter program on November 9, 2019, and defendant was 

“paroled in good standing from” the program on September 4, 2020. Defendant also 

attached copies of various certificates he earned.

The People opposed the petition. On August 20, 2021, the court held a hearing, 

and the prosecutor pointed out that one of the requirements of section 1203.4b is that the 

Secretary of the California Department of Corrections and Rehabilitation (CDCR) certify 

to the court that a defendant has successfully completed the required program, before the 

court exercises its decision on whether to grant or deny the petition. The prosecutor 

further argued that based on the facts of the case and the nature of what defendant pled to, 

it was not in the interests of justice to grant the petition. Defense counsel asserted that 

defendant had completed an 18-month program and took advantage of various programs 

in custody. The court noted that the form submitted by defendant said he was asking to 

terminate his parole, and it was unsure about doing that. The People responded that 

perhaps it would be better for defendant to request dismissal after completing his parole, 

and further noted the facts of the case were egregious. The court denied the petition.

On November 9, 2021, defendant filed another petition for dismissal pursuant to 

section 1203.4b, alleging that he successfully participated in a conservation camp 
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program called “Firefighter Training Program” from September 18, 2020, to October 

2021, and stating he had been released from custody. He attached the same 

documentation from the prior petition. The People again opposed the petition.

On or about November 10, 2021, the superior court clerk sent a notice of filing of 

petition for dismissal (Pen. Code, § 1203.4b) and request for certification to the 

California Rehabilitation Center in Norco, stating that defendant had filed a petition. The 

notice further stated: “Pursuant to statute, when a petition is filed, the court is required to 

provide a copy of the petition to the responsible authority to obtain certification of the 

petitioner’s participation [in] fire camp. CDCR is then required to certify whether the 

petitioner successfully participated in the incarcerated individual conservation camp and 

has been released from custody. [¶] Please provide certification of the petitioner’s 

participation to the court indicated above by: 11/24/2021.”

On November 30, 2021, the court continued the hearing on the petition to obtain 

the certification from the CDCR.

On December 16, 2021, a certification of participation of fire camp form was filed. 

It was signed by a CDCR Classification and Parole Representative and stated that 

defendant “[d]id not participate in the above-listed fire camp.” The fire camp listed was 

the California Rehabilitation Center in Norco.

Defendant moved to continue the hearing two more times, and it was eventually

held on February 7, 2022. That day, a memorandum from Fire Captain Mikeal Gates, 

dated January 25, 2022, was filed, in which he answered a series of questions from the 

defense attorney. Gates’s responses included that defendant was incarcerated and 
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participated in the institutional firefighter program from November 9, 2019, until 

September 18, 2020, “when he paroled.” Gates explained the difference between the 

institutional firefighter program and fire camp, stating that institutional firefighters 

protect prison infrastructure, and are available to respond to any incident in the county if 

requested, whereas fire camp firefighters only respond to wildfires, flooding, and forest 

restoration. Gates also stated that defendant responded to a wildland fire and several fires 

within the prison grounds in Norco. 

After reviewing the evidence and the law, the court stated: “Although I will say 

that [defendant] does not fit within the specific letter of the law, I do believe he clearly 

fits within the spirit of the law. There is apparently a difference between one who is an 

institutional firefighter, meaning that they actually staffed the fire department within the 

institution and respond to fires within the institution that are structural fires, and someone 

who is part of the California Conservation Corps [sic] fire—conservation camp 

firefighting wildfires—or wildland firefighters. [¶] In [defendant’s] position, he was part 

of the institutional firefighters, but he also responded to wildland firefighters and was 

trained in that as well. . . . [¶] . . . [¶] To say that [defendant] does not fall within the 

spirit of the law by virtue of him having the institutional firefighter training versus the 

wildland firefighter training, I think puts form before substance, and I don’t think that 

would be the equitable and the just resolution in this particular case.”

The People acknowledged the certificates and letters defendant submitted in 

support of his petition and commended him for all he had done, but argued that he was 

not eligible for relief since he did not participate in the specific program required by the 
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statute. Defense counsel stated that defendant participated in 10 months of training “in 

good faith as an incarcerated firefighter” with the expectation that he would have his 

record expunged for purposes of being employed, after he was paroled. Defense counsel 

added that defendant was already discharged and had completed 18 months of training at 

VTC, which was a California Conservation Camp program. The court reiterated that 

defendant fell within the spirit as opposed to the letter of the law. Thus, it granted the 

requested relief and ordered dismissal of the underlying charges.

DISCUSSION

Defendant Failed to Establish His Compliance with the Statutory Requirements

The People argue that the trial court was without authority to exercise its 

discretion and grant defendant’s petition for dismissal pursuant to section 1203.4b since 

he did not meet the statutory requirements for relief. In its opening brief, the People 

contend that (1) defendant did not successfully participate in a California Conservation 

Camp program while incarcerated, and (2) the Secretary of the CDCR (the Secretary) did 

not provide the required certification. Defendant contends the court properly found that 

he came within the spirit of the law and that a reversal of the court’s order would be a 

violation of his Equal Protection rights. In its supplemental brief, the People 

acknowledge that section 1203.4b was amended to include relief for a defendant who 

participates in an institutional firehouse, and that defendant likely now qualifies. 

However, before the trial court may exercise its discretion and grant a dismissal, the 

Secretary must certify his successful participation. In his supplemental brief, defendant 

contends he has successfully participated in an approved institutional firehouse program, 
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and we should affirm the court’s order; however, if certification from the Secretary is 

required, this court should remand the case to the trial court to obtain the certification. 

Although we recognize defendant’s outstanding efforts, we agree with the People that the 

Secretary must certify defendant’s participation in the required program. Thus, we will 

reverse the order.

A. Principles of Statutory Interpretation

“Where a question of statutory interpretation based on undisputed facts is 

presented, we conduct an independent review of the statute in question.” (People v. 

Paige (2020) 51 Cal.App.5th 194, 200.) “We have long recognized that the language 

used in a statute or constitutional provision should be given its ordinary meaning, and 

‘[i]f the language is clear and unambiguous there is no need for construction, nor is it 

necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of 

the voters (in the case of a provision adopted by the voters).’ [Citation.] To that end, we 

generally must ‘accord[ ] significance, if possible, to every word, phrase and sentence in 

pursuance of the legislative purpose,’ and have warned that ‘[a] construction making 

some words surplusage is to be avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 

357 (Valencia).)

B. Section 1203.4b

Assembly Bill No. 2147 (Assem. Bill 2147), approved by the Governor on 

September 11, 2020, became effective January 1, 2021, and added section 1203.4b to the 

Penal Code. When enacted, this section provided: “If a defendant successfully 

participated in the California Conservation Camp program as an incarcerated individual 
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hand crew member, as determined by the Secretary of the Department of Corrections and 

Rehabilitation, or successfully participated as a member of a county incarcerated 

individual hand crew, as determined by the appropriate county authority, and has been 

released from custody, the defendant is eligible for relief pursuant to this section.”

(Former § 1203.4b, subd. (a)(1).) Section 1203.4b was subsequently amended and now 

provides, “If a defendant successfully participated in the California Conservation Camp 

program as an incarcerated individual hand crew member, as determined by the Secretary 

of the Department of Corrections and Rehabilitation . . . or participated at an 

institutional firehouse, as determined by the Secretary of the Department of Corrections 

and Rehabilitation, and has been released from custody, the defendant is eligible for 

relief pursuant to this section.” (§ 1203.4b, subd. (a)(1) (italics added), amended by Stats 

2022, ch. 771, §16 (Assem. Bill No. 160), eff. Sept. 29, 2022.)

“If the requirements of this section are met, the court, in its discretion and in the 

interest of justice, may permit the defendant to withdraw the plea of guilty or plea of nolo 

contendere and enter a plea of not guilty [and] the court shall thereupon dismiss the 

accusations or information against the defendant and the defendant shall thereafter be 

released from all penalties and disabilities resulting from the offense of which the 

defendant has been convicted, . . .” (§ 1203.4b, subd. (c)(1).)

C. Defendant Did Not Meet the Statutory Requirements of Section 1203.4b

In its opening brief, the People argue that defendant did not participate in a 

California Conservation Camp program while incarcerated, and the Secretary did not 

certify his successful participation in such, as required by the statute. However, in its 
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supplemental brief, the People acknowledge that the amendment to section 1203.4b 

expands relief to a defendant who participates at an institutional firehouse and thus likely 

includes defendant. Even so, the Secretary must determine and certify defendant’s 

participation in such program. We agree. Defendant has not established that he met the

statutory requirements, and it is even unclear from his petition and attachments how he 

was attempting to satisfy them.

Defendant’s petition, filed on November 9, 2021, alleged that he successfully 

participated in a conservation camp program called “Firefighter Training Program” from 

September 18, 2020, to October 2021, and stated that he had been released from custody.

The personal letter he attached to his petition requested the dismissal of his case under 

Assembly Bill 2147 and asserted that he was “currently . . . enrolled in the CAL-FIRE 

Ventura Training Center (VTC) Fire Academy.” He attached a letter from Parole Agent 

Angelica Garcia, indicating he was released on parole on September 18, 2020, and 

confirming his participation at VTC. Garcia stated that VTC was a voluntary, 18-month 

firefighter training and reentry program that emphasized rehabilitation. She further stated 

that defendant was accepted into that program on November 16, 2020. From Garcia’s 

description, the VTC Fire Academy does not appear to be a California Conservation 

Camp program that defendant participated in while incarcerated; rather, it was a 

voluntary training program, which defendant participated in while he was on parole. 

Moreover, the participation dates he alleged on his petition (September 18, 2020, to 

October 2021) do not match the acceptance date indicated by Garcia (November 16, 

2020).
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Defendant asserted in his letter, but not on his petition, that he served as an 

institutional firefighter from November 9, 2019, to September 18, 2020. We note that 

these dates also do not match the dates he alleged on his petition. Defendant attached a 

letter from Fire Captain Mikeal Gates from the California Rehabilitation Center in Norco,

stating that defendant was assigned to his institutional firefighter program on November 

9, 2019, while serving his sentence there. Notably, at the time defendant filed his 

petition, section 1203.4b, in relevant part, only applied to defendants who “participated in 

the California Conservation Camp program as an incarcerated individual hand crew 

member, as determined by the Secretary of the Department of Corrections and 

Rehabilitation.” The evidence did not clearly establish that the California Rehabilitation 

Center in Norco was a California Conservation Camp program. 

Furthermore, as to the statutory requirement that a defendant “participate[] in the 

California Conservation Camp program as an incarcerated individual hand crew member, 

as determined by the Secretary of the Department of Corrections and Rehabilitation” 

(§ 1203.4b, subd. (a)(1)), the only evidence of certification by the CDCR showed that 

defendant did not participate in a fire camp. The superior court clerk sent a request for 

certification to the California Rehabilitation Center in Norco, stating that defendant had 

filed a section 1203.4b petition and asking the CDCR to certify to the court whether he

successfully participated in the “incarcerated individual conservation camp.” In 

response, the CDCR representative filed a Certification of Participation of Fire Camp 

form, which stated that defendant “[d]id not participate in the above-listed fire camp.” 

(Italics added.) The camp listed was the California Rehabilitation Center in Norco. With 
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regard to the expanded relief under the amended statute, the evidence appears to 

demonstrate that defendant participated in an institutional firefighter program while he 

was incarcerated. However, section 1203.4b requires that such participation be 

“determined by the Secretary of the Department of Corrections and Rehabilitation” 

(§ 1203.4b, subd. (a)(1)), and there has been no attempt to have the Secretary certify 

defendant’s participation in an institutional firefighter program.

In sum, “courts must look first to the words of the statute, giving effect to their 

plain meaning. If those words are clear, we may not alter them to accomplish a purpose 

that does not appear on the face of the statute or from its legislative history.” (In re Jerry 

R. (1994) 29 Cal.App.4th 1432, 1437; see Hennigan v. United Pacific Ins. Co. (1975) 53

Cal.App.3d 1, 7 [“We may not disregard or enlarge the plain provisions of the statute, nor 

may we go beyond the meaning of the words used when they are clear and 

unambiguous.”].) Section 1203.4b does not require interpretation since it is not 

ambiguous. (Valencia, supra, 3 Cal.5th at p. 357.) Defendant’s petition and supporting 

documentation did not clearly allege or establish that he satisfied the requirements of the 

statute. Specifically, the petition alleges that he successfully participated in a 

conservation camp program, but the evidence does not establish such. Conversely, the 

petition does not allege that he participated at an institutional firehouse, although the 

evidence appears to show that he did; however, the Secretary has not determined or

certified such participation. Since the requirements were not met, according to the 

statutory terms at the time of the hearing, the court erred in granting him relief. 

(§ 1203.4b, subd. (c)(1) [“If the requirements of this section are met, the court, in its 
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discretion and in the interest of justice, may permit the defendant to withdraw the plea of 

guilty . . . .” (Italics added)].)3 Since the petition in this case does not allege that 

defendant participated at an institutional firehouse, and the Secretary has not determined 

such, the statutory requirements have still not been met.

We acknowledge defendant’s contention that the denial of his petition, based on 

the People’s argument, would violate his right to equal protection. He asserts that he 

participated in the California Conservation Camp at VTC after he was released on parole, 

while noting that only individuals who participate in a fire camp while incarcerated are 

entitled to relief under section 1203.4b. Defendant concedes that he did not raise an 

equal protection argument below. We conclude he forfeited his equal protection claim by 

failing to raise or develop it below. (People v. Hartshorn (2012) 202 Cal.App.4th 1145, 

1151.) Although we have discretion to address the claim, we decline to do so, especially 

since defendant alleged in his supplemental brief that he qualifies for relief based on his 

participation in an institutional firehouse program. 

We note the statute provides that “[a]ny denial of relief pursuant to this section 

shall be without prejudice.” (§1203.4b, subd. (a)(2).) Therefore, we will reverse the 

court’s order, and defendant may file another petition if he so chooses.

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 In light of our conclusion, we decline to further address defendant’s claims that 

the court properly found he came within the spirit of the law.
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DISPOSITION

The order granting defendant’s section 1203.4b petition is reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.