Filed 2/25/14 P. v. Carlton CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES CARLTON,

Defendant and Appellant.

 B247465

 (Los Angeles County

 Super. Ct. No. NA071567)

APPEAL from an order of the Superior Court of Los Angeles County, 

Mark C. Kim, Judge. Reversed and remanded with the directions.

William P. Daley for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and 

Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

James Carlton appeals the order entered after judgment denying his petition for 

a dismissal of the judgment pursuant to Penal Code section 1203.4, subdivision (a)(1), 

after he pled guilty to attempting to commit lewd or lascivious acts with a child under the 

age of 14. (Pen. Code, §§ 664, 288, subd. (a)).1

He contends that the trial court was compelled to order the dismissal as neither the 

trial court nor the People denied appellant had fulfilled the terms and conditions of 

probation and the offense of attempted lewd and lascivious acts with a child under the 

age of 14 was not an excluded offense listed in section 1203.4, subdivision (b). 

BACKGROUND

On May 17, 2007, appellant was convicted after a certified plea of guilty 

to attempted lewd or lascivious conduct with a child and was granted three years of 

formal probation.2 His probation supervision was transferred to a county probation 

officer in San Diego, California.

The probation report, as well as a psychological evaluation in the file, reveal that 

appellant was arrested for lewd conduct after he contacted a girl who told him she was 

13 years of age online in an Internet chat room. Discovering her father would be out of 

town, appellant made arrangements to go to the girl’s residence. Unbeknownst to 

appellant, the 13-year-old female was an National Broadcasting Company (NBC) decoy 

who was attempting to uncover pedophiles who were looking for underage women 

online. When appellant arrived at the girl’s residence, he was confronted by an NBC 

moderator and arrested by the Long Beach Police Department.

Section 288, subdivision (a), provides that “[a]ny person who willfully and lewdly 

commits any lewd or lascivious act, including any of the acts constituting other crimes 

 

1 All further statutory references are to the Penal Code unless otherwise designated. 

2 We take judicial notice of the contents of the superior court file in the Los Angeles 

County Superior Court case No. NA071567. (Evid. Code, §§ 452, subd. (d), 459, subd. 

(a)(1).) We have given the parties notice of our intention to take judicial notice of the 

superior court file.
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provided for in Part 1, upon or with the body, or any part or member thereof, of a child 

under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust,

or passions, or sexual desires of that person or of the child, is guilty of a felony and shall 

be Punished by imprisonment in the state prison for three, six, or eight years.”

Sometime thereafter, appellant apparently completed probation. On January 17, 

2013, he filed a “Petition for Dismissal” asking for a reduction of his offense to a 

misdemeanor and for a dismissal of the judgment pursuant to section 1203.4. In the 

petition, he declared under penalty of perjury he was not serving a sentence for any other 

offense, he was not on probation for another offense, nor was he charged with the 

commission of any crime. Further, he asserted that he had fulfilled the conditions of his 

probation during the entire period thereof.

On that same day, January 17, 2008, the trial court read and considered the 

petition in appellant’s absence and denied the petition. No reason for the denial was 

stated on the petition or in the trial court’s minute order evidencing the denial of the 

petition. 

On March 13, 2013, appellant filed a notice of appeal from the trial court’s order.

DISCUSSION

In his opening brief, appellant contends he has done all that is necessary to comply 

with the requirements of section 1203.4.3 He cites the decision in People v. Lewis (2006) 

 

3

Section 1203.4, subdivision (a)(1) provides: “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 probation, 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 probation, 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 
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146 Cal.App.4th 294 (Lewis) to demonstrate error. Therein, the Lewis court observed 

that while a person suffering a conviction for violation of section 288, subdivision (a), 

is specifically excluded by statute from the advantages of section 1203.4, a person 

convicted of an attempt of that offense is eligible for a dismissal. (Lewis, supra,

at p. 297.)

When a defendant has fulfilled the conditions of probation for the entire 

probationary period, he is entitled as a matter of right to have the plea or verdict of 

guilty changed to one of not guilty, to have the proceedings expunged from the record 

and to have the accusations dismissed. (People v. Covington (2000) 82 Cal.App.4th

1263, 1266.)

On appeal, the Attorney General agrees that the decision in Lewis generally is a 

proper statement of the law. However, the Attorney General speculates that the problem 

with appellant’s petition is that appellant failed in the trial court to attach to his petition 

any proof that he had fulfilled all the terms and conditions of probation. The court in 

Lewis, without a full discussion of that issue, placed the burden on the People and the 

trial court to verify a defendant’s compliance with all the terms and conditions of his 

probation. But the court in People v. Ignazio (1955) 137 Cal.App.2d Supp. 881 (Ignazio) 

 

resulting from the offense of which he or she has been convicted, except as provided in 

Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her 

probation papers, of this right and privilege and his or her right, if any, to petition for a 

certificate of rehabilitation and pardon. The probationer may make the application and 

change of plea in person or by attorney, or by the probation officer authorized in writing. 

However, in any subsequent prosecution of the defendant for any other offense, the prior 

conviction may be pleaded and proved and shall have the same effect as if probation had 

not been granted or the accusation or information dismissed. The order shall state, and 

the probationer shall be informed, that the order does not relieve him or her of the 

obligation to disclose the conviction in response to any direct question contained in any 

questionnaire or application for public office, for licensure by any state or local 

agency, or for contracting with the California State Lottery Commission. [¶] . . . [¶] 

(b) Subdivision (a) of this section does not apply to . . . any violation of subdivision (c) of 

Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) 

of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant 

to subdivision (d) of Section 261.5. . . .”
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held in a more complete, reasoned discussion held that a section 1203.4 petitioner has the 

burden of proof in providing the trial court with reliable evidence, other than his own 

statement under penalty of perjury in the petition, that he has fully and timely complied 

with the terms and conditions of his probation. 

With respect to the issue of the burden of proof, we agree with the decision in 

Ignazio. (See also People v. Johnson (2012) 211 Cal.App.4th 252, 261 [citing Ignazio on 

this point with approval].) Further, we note there is no declaration attached to the 

petition indicating that appellant timely served Los Angeles Office of the District 

Attorney with notice of the petition. (§ 1203.4, subd. (e).)

However, since no reason is stated for denial of the petition, we cannot determine 

whether the trial court erred. We will reverse the trial court’s order and remand the 

matter to the trial court to hold a hearing to reconsider the petition. Appellant and/or his 

attorney may attend the hearing.

 On remand, appellant will provide the trial court with proof of his full and timely 

compliance with the terms and conditions of his probation. 

Fifteen days prior to the hearing, appellant is to file and serve a notice of his 

petition on the Los Angeles County Office of the District Attorney. That notice must 

contain a copy of the proof of his timely fulfillment of the terms and conditions of his 

probation. 

If appellant complies with the directions in this opinion, and unless the People 

provide the trial court with other available grounds for refusing to grant appellant relief at 

the hearing, the trial court shall grant the petition.
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DISPOSITION

The order under review is reversed. The matter is remanded to the trial court for 

further proceedings in compliance with the directions contained in this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J