THE PEOPLE v. MARTIN BRIONES

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MARTIN BRIONES, Defendant and Appellant.

2d Crim. No. B233441

Decided: January 23, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Martin Briones appeals from a May 9, 2011 order denying his petition to withdraw his guilty plea and dismiss the action pursuant to Penal Code section 1203.4, subdivision (a).1  We affirm because no proof of service was filed showing timely service of the petition on the Ventura County District Attorney. (§ 1203.4, subd. (e).)

On July 20, 1990, appellant was convicted by plea of misdemeanor battery and annoying or molesting a child. (§§ 242;  647.6.) The trial court suspended imposition of sentence and granted 36 months probation with 180 days county jail and sex offender registration (§ 290) and restitution terms.

In 1992, a notice of violation of probation (VOP) was filed alleging that appellant failed to register as a sex offender, changed residences without prior approval of the probation department, and failed to pay restitution.   The record does not show whether the VOP was adjudicated.

On May 9, 2011, appellant filed a petition to set aside his plea and dismiss the action on the ground that appellant “has fulfilled the conditions of probation for the entire period thereof․”  The trial court summarily denied the petition.

Because this is a judgment roll appeal, it is presumed that ample evidence was presented to support the judgment.  (See 9 Witkin, Cal. Procedure (5th ed.   2008) Appeal, § 359, pp. 414–415;  People v. American Bankers Ins. Co. (1989) 215 Cal.App.3d 1363, 1369.)   Appellant speculates that the petition was denied based on unajudicated allegations of a probation violation.   The argument is based on a silent record rather than any affirmative showing of reversible error.  (See e.g., Denham v. Superior Cour t (1970) 2 Cal.3d 557, 564.)

What the record does show is that the petition was not served on the district attorney by the probation department as is required.   Lack of notice requires that “relief shall not be granted.” (§ 1203.4, subd. (e).) 2  The summary denial of the petition was without prejudice and did not violate appellant's due process rights.

Appellant's counsel claims that the probation department has been less than diligent in notifying the district attorney when section 1203.4 petitions are filed.   This is an administrative matter that should be addressed to the superior court.  (See Cal. Rules of Court, rule 10.952 [superior court to conduct regular meetings with the district attorney, public defender, defense bar, court personnel and probation department to identify and eliminate problems in criminal court system].)   Until the matter is administratively resolved, counsel may serve section 1203.4 petitions on the district attorney, as is the practice in other counties.  (See e.g., Orange County Superior Court Form No. 1073;  Monterey Superior Court Form SCR–181;  San Luis Obispo Superior Court, Proof of Service PC § 1203.4 form.

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Ventura

Stephen P. Lipson, Public Defender Count of Ventura, Michael E. McMahon, Chief Deputy and Kenneth N. Hamiton, Deputy Public Defender, for Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. Section 1203.4, subdivision (e)(1), (2), states:  “Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days' notice of the petition for relief.   The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.   [¶] It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.”  (Emphasis added.0.  FN2. Section 1203.4, subdivision (e)(1), (2), states:  “Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days' notice of the petition for relief.   The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.   [¶] It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.”  (Emphasis added.0

COFFEE, J. PERREN, J. Ferdinand D. Inumerable, Judge