Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VC28017
Jones, P.J.
Appellant George Lewis Kendall appeals from the trial court’s January 22, 2007 order denying his petition for Penal Code section 1203.4 relief.
Unless otherwise noted, all further statutory references are to the Penal Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 9, 1990, appellant pleaded no contest to two counts of lewd conduct with a child of 14 or 15 and at least 10 years younger than the accused (§ 288, subd. (c)) and to one count of furnishing marijuana to a minor over 14 (Health & Saf. Code, § 11361, subd (b)). The court sentenced appellant to five years’ probation.
In February 1993, the Solano County Probation Department moved for early termination of appellant’s probation and for relief pursuant to section 1203.4. At that time, section 1203.4 provided that a probationer who fulfilled the conditions of probation or who received an early discharge from probation was “‘entitled as a matter of right to have the plea . . . 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; quoting People v. Chandler (1988) 203 Cal.App.3d 782, 787; see also People v. Hawley (1991) 228 Cal.App.3d 247, 250, fn. omitted [“If the petitioner establishes either of the necessary factual predicates [to section 1203.4], the trial court is required (original italics) to grant the requested relief”]; In re Griffin (1967) 67 Cal.2d 343, 347 & fn. 3.) After a hearing on March 12, 1993, the court terminated appellant’s probation but did not grant section 1203.4 relief. The relevant portion of the minute order entered on March 12, 1993 provides: “[x] Probation is [ ] revoked denied [ ] continued [ ] same terms and conditions [x] terminated [ ] pursuant to 1203.4 P.C.” Appellant did not appeal the court’s denial of the request for section 1203.4 relief.
When the Solano County Probation Department applied for section 1203.4 relief in 1993, that statute provided in relevant part, “‘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 . . . 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. . . . 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. . . . This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.’” (People v. Frawley (2000) 82 Cal.App.4th 784, 788 & fn. 4 (Frawley).) Like the Frawley court, we note that section 1203.4 uses the word “dismiss” rather than “expunge.” (Frawley, supra, at p. 787, fn. 2.) While we recognize that the parties — and numerous courts — “have used forms of the word ‘expunge’ to describe the relief made available by section 1203.4” (Frawley, supra, at pp. 790-791), we will use language of the statute to avoid mischaracterizing the legal effect of a grant of relief under section 1203.4.
In 1997, the Legislature amended section 1203.4 “to make section 1203.4 relief unavailable to those convicted of certain sex offenses, including a violation of section 288.” (People v. Arata (2007) 151 Cal.App.4th 778, 783; People v. Paredes (2008) 160 Cal.App.4th 496, 508, review den., June 11, 2008.) Section 1203.4, subdivision (b) now provides that “[s]ubdivision (a) of this section does not apply to . . .any violation of . . . Section 288 . . . .”
In May 2005, appellant filed a petition for writ of error coram nobis seeking to vacate his conviction. He argued, among other things, that he was not advised before he pleaded guilty that he would be required to register as a sex offender. The court denied the petition in February 2006. No appeal was taken from the denial of this petition.
In April 2006 — over 13 years after the court originally denied section 1203.4 relief and eight years after amendment to section 1203.4 took effect — appellant filed a section 1203.4 petition to withdraw his plea, to “enter a plea of not guilty,” and to have the court “dismiss the accusations or information against [him]” and “release[ ] him from all penalties and disabilities resulting from the offense.” He explained that his probation was terminated in March 1993, and that “[r]elief pursuant to [section] 1203.4 [] was requested” but “not addressed at the [probation] termination hearing” because of his trial counsel’s “failure to appear at the hearing.”
Before the court ruled on the April 2006 petition, appellant tried, for the third time, to obtain section 1203.4 relief. In June 2006, he filed a “Renewed Petition for Relief Pursuant to [section] 1203.4” (Renewed Petition). The Parties assume the Renewed Petition superseded the April 2006 petition and we engage in the same assumption. In the Renewed Petition, appellant argued that he was entitled to relief pursuant to the version of section 1203.4 that was in effect in 1993. According to appellant, because of “an honest mistake on the court clerk’s part,” the minute order was not marked correctly “and therefore there are no clerk’s minutes reflecting either the grant or denial of the [section] 1203.4 motion.” At a hearing on January 22, 2007, appellant informed the court that he was “asking the Court to . . . correct the record” nunc pro tunc. The court reviewed the transcript from the March 12, 1993 hearing and denied the Renewed Petition. The court explained that the law did not allow him to dismiss appellant’s conviction nunc pro tunc “despite . . . inequities or not.”
The transcript of the March 12, 1993 hearing is no longer available. At the hearing on the Renewed Petition, the court did not comment on the contents of the March 1993 transcript.
DISCUSSION
Appellant concedes that the Legislature amended section 1203.4 in 1997 and that as a result, section 1203.4 relief is no longer available for individuals convicted of violating section 288. He also acknowledges that the Renewed Petition is his third attempt to seek section 1203.4 relief. Appellant argues, however, that he is entitled to relief notwithstanding the amendment to section 1203.4 — and notwithstanding his previous unsuccessful attempts to seek section 1203.4 relief — because he was entitled to such relief in 1993, when the court terminated his probation. In response, the People agree that appellant “was entitled to have the proceedings expunged from the record pursuant to [ ] section 1203.4” in 1993. They argue, however, that appellant’s failure to appeal the 1993 order denying relief “means that such relief is no longer available.”
As noted above, the initial petition for section 1203.4 relief was filed in 1993. Appellant filed a second petition in April 2006 and a third petition, styled as a “Renewed Petition,” in June 2006. If we disregard appellant’s prior requests for section 1203.4 relief and construe the Renewed Petition as a “new” petition, it is clear that appellant is not entitled to section 1203.4 relief. (People v. Acuna (2000) 77 Cal.App.4th 1056, 1060-1062.) In Acuna, the defendant pleaded guilty to violating section 288, subdivision (a) in 1993, and the trial court placed him on probation. (Acuna, supra, at p. 1058.) In 1999 — after the Legislature amended section 1203.4 — defendant moved for relief pursuant to that statute. (Acuna, supra, at p. 1059.) The trial court denied the petition.
The Acuna court affirmed. It held that applying the amended version of section 1203.4 to defendant’s case did not violate the ex post facto clause, nor did it violate defendant’s right to due process or equal protection. (Acuna, 77 Cal.App.4th at pp. 1060-1061.) The court explained that “[b]ecause the petition was decided under the law as it existed at the time [the petition] was filed, there was no retroactive application of the amended statute.” (Id. at p. 1061.) The same is true here. When appellant filed his Renewed Petition in June 2006, section 1203.4 no longer provided relief for individuals — including appellant — who had been convicted of violating section 288. (Acuna, supra, at p. 1061.) Here, as in Acuna, the trial court applied “the law as it existed at the time” appellant filed the Renewed Petition and properly denied it.
Appellant relies heavily on Arata, supra, 151 Cal.App.4th at page 788, but that case does not alter our conclusion. There, the defendant pleaded guilty to violating section 288 some time prior to 1997 and the court placed him on probation. (Acuna, supra, at p. 781.) After the Legislature amended section 1203.4, defendant moved for section 1203.4 relief, claiming he sought to enforce his plea bargain. (Arata, supra, at p. 781.) He contended that he was advised of the promise of 1203.4 relief before he pleaded guilty, and that he relied on that promise. To support this argument, defendant submitted two declarations. (Arata, supra, at pp. 781-782.) Defendant’s declaration stated that he discussed his plea agreement with his trial counsel and that counsel told him that if he completed probation, he would be able to withdraw his plea and have his case dismissed pursuant to section 1203.4. (Arata, supra, at pp. 781-782.) Trial counsel submitted a declaration averring that it was his habit and custom to discuss section 1203.4 relief with his clients and that “[t]he advisement of section 1203.4 relief appeared on the probation papers and these would have been discussed with defendant.” (Arata, supra, at p. 782.)
The trial court denied the motion and defendant appealed. On appeal, he contended that retroactive application of the amended version of section 1203.4 to his case violated his plea bargain and his right to due process because “he entered his plea of guilty with the understanding that after successful completion of probation, he would be permitted to withdraw his plea and the court would dismiss the information.” (Arata, supra, 151 Cal.App.4th at p. 786 .) The Arata court agreed. It determined that section 1203.4 relief was an implied term of defendant’s plea bargain (Arata, supra, at p. 787) and that denial of relief pursuant to that statute was “significant in the context of the entire plea bargain.” (Id. at p. 788.) According to the court, “defendant’s plea rested in a significant degree on the promise of eventual section 1203.4 relief” and, as a result, “such promise must be fulfilled. [Citation.]” (Arata, supra, at p. 788.)
Unlike the defendant in Arata, appellant has not established that 1203.4 relief was a significant term of his plea bargain. His plea bargain contains no express provision mentioning section 1203.4 relief. (See Acuna, supra, 77 Cal.App.4th at p. 1062 [rejecting defendant’s argument that he was deprived of the benefit of his plea bargain where he “point[ed] to no express provision in his plea bargain that mentions expungement”].) And we cannot conclude that section 1203.4 relief was an implied term of his plea agreement. In his Renewed Petition, appellant claimed his decision to accept the plea bargain was made with the understanding that “the conviction would be overturned and set aside, when probation was terminated.” But in contrast to the defendant in Arata, appellant did not submit any evidence in connection with his Renewed Petition to support this claim. His counsel did not submit a declaration averring that he discussed the promise of section 1203.4 relief with appellant, nor did appellant offer a declaration of his own stating that he was promised section 1203.4 relief and that he relied on that promise. The order granting probation does not refer to section 1203.4 relief and his “probation papers” are not part of the record. As a result, appellant cannot demonstrate that section 1203.4 relief was “significant in the context of the entire plea bargain.” (Arata, supra, 151 Cal.App.4that p. 788.)
In a declaration submitted in support of his petition for writ of error coram nobis, appellant stated the following: “[b]efore I entered my plea . . . counsel advised me that the charge of . . . [s]ection 288(c) could be considered a ‘wobbler’ as it could be charged as a felony or a misdemeanor. [¶] Counsel further advised me that I would be placed on felony probation but that the conviction would be for a misdemeanor, and he advised me that once my probation was completed or terminated my misdemeanor conviction would be set aside. [¶] He further stated: “[b]efore I entered my plea . . . I was not advised . . . I would be required to register as a sex offender.” After learning that appellant would have to register as a sex offender, appellant’s trial counsel promised to file a motion for early termination of appellant’s probation. Appellant stated that counsel informed him that “the motion for early termination would be granted and that [his] conviction would then be set aside, and [he] would not have to register [as a sex offender].” Appellant further averred that the motion to terminate probation was granted in March 1993 but that his conviction was not “set aside as was agreed.”
Appellant fares no better if we construe the Renewed Petition as an effort to reverse the 1993 denial of section 1203.4 relief. Section 1237 provides that an appeal may be taken “[f]rom a final judgment of conviction” or “[f]rom any order made after judgment, affecting the substantial rights of the party.” (§ 1237, subds. (a), (b).) An order denying a petition made pursuant to section 1203.4 is an appealable order “made after judgment affecting the substantial rights of the defendant. [Citation.]” (Hawley, supra, 228 Cal.App.3d at p. 248, fn. 2; see also Chandler, supra, 203 Cal.App.3d at p. 787.) It is well-settled that “[i]f a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal.” (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; see also People v. DeLouize (2004) 32 Cal.4th 1223, 1232 [“A party’s failure to file a timely appeal from an appealable order generally shows acquiescence in the ruling. . . .”].) Appellant failed to appeal the court’s 1993 denial of the application for section 1203.4 relief. His failure to appeal precludes him from challenging that order on appeal now. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1427.)
If we construe the Renewed Petition as an effort to correct the record, we conclude the lower court properly denied the Renewed Petition. As the People correctly note, we are unable to grant relief nunc pro tunc. A nunc pro tunc order “is generally limited to correcting clerical errors; [it] “‘cannot declare that something was done which was not done.’” (People v. Borja (2002) 95 Cal.App.4th 481, 485; quoting Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256; see also 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 65, p. 593 [describing when nunc pro tunc orders are appropriate].) A nunc pro tunc order “may not be used as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order to enter a new one. [Citations.]” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891.)
Borja, supra, 95 Cal.App.4th at page 485, is on point. In that case, the defendant was granted probation on the condition that he spend 365 days in jail. Almost six years later, and after he completed probation, the defendant sought and obtained a nunc pro tunc modification of the probation condition. The appellate court reversed and held: “[t]his case does not involve a clerical order.” (Id. at p. 485.) The Borja court explained that defendant was seeking a “retroactive change” in the sentence which had already been “imposed and served.” (Ibid.) The same is true here. This case does not involve the correction of a clerical error. Instead, appellant is attempting to change the court’s 1993 order from a denial of the request for section 1203.4 relief to a grant of that relief. Under Borja, we are unable to “correct” the 1993 order nunc pro tunc.
For this reason and the reasons stated above, we conclude that the trial court properly denied appellant’s Renewed Petition for section 1203.4 relief.
DISPOSITION
The January 22, 2007 order denying appellant’s petition for section 1203.4 relief is affirmed.
We concur: Simons, J. eardon, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant characterizes the court’s 1993 denial of section 1203.4 relief in a variety of ways. For example, in his petition for writ of error coram nobis, appellant concedes the trial court denied section 1203.4 relief. But in his April 2006 petition to withdraw his plea, appellant claims the court failed to “address” the request for section 1203.4 relief because his attorney was not present at the hearing. And in his Renewed Petition, appellant contends the minute order was not marked properly. Notwithstanding the different characterizations offered by appellant, we conclude the court denied the request for section 1203.4 relief in 1993. The box on the March 12, 1993 minute order indicating that “probation is terminated pursuant to section 1203.4” is not checked.
This declaration was not before the trial court when it ruled on appellant’s Renewed Petition and appellant has not appealed the court’s denial of his petition for writ of error coram nobis. As a result, the declaration is not properly before this court.