NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

JOHNSON, J.

In 2002, Samir Hanna (Hanna) was convicted of violating Penal Code section 289, subdivision (d), a felony offense.1 Hanna has long since served his one-year jail term on that conviction and successfully completed probation in 2004. In 2012, this court handed down People v. Lyu (2012) 203 Cal.App.4th 1293 (Lyu). Based on Lyu, Hanna contended he was factually innocent of the section 289 offense and asked the trial court to set aside his conviction. Specifically, Hanna requested that the trial court dismiss his case in the interest of justice under section 1385. The trial court denied Hanna's motion. As section 1203.4 is the exclusive method for a trial court to dismiss the conviction of a defendant who has successfully completed probation, we affirm.

BACKGROUND2

Hanna was employed by Physical Therapy Rehab Association in Pasadena as a physical therapy aide and office manager. In March 2001, Debra J. began receiving treatments at the clinic from Hanna. She developed a rapport with Hanna and discussed aspects of her personal life with him.

Ms. J. came to the clinic for treatment on May 25, 2001, complaining of pain in her back. Hanna told Ms. J. that he would give her a massage. He provided her with a gown and instructed her to leave on her underclothes. Ms. J. did so and got onto the massage table, lying facedown. Hanna entered the room and started to massage Ms. J., stating that sometimes back pain goes down into the legs and buttocks. Hanna asked Ms. J. for permission to massage her legs and asked her to spread her legs a little bit. He also had Ms. J. move to the edge of the table closest to him. As the massage progressed, Ms. J. could feel pressure from Hanna's penis against her leg and she began to sense that Hanna should not be as close to her as he was. The massage continued on Ms. J.'s legs and moved to her buttocks. Hanna then put his hand into Ms. J.'s underpants and inserted two of his fingers into her vagina. Ms. J. was shocked and "pushed [her] body up away from the table. Hanna asked if everything was all right, and Ms. J. said, "No." Hanna then said, "Good session," and left the room.

After Ms. J. got dressed and was preparing to leave the clinic, the receptionist asked her to exit through the back door. Although she normally went through the front, Ms. J. complied with this request. In defense, the clinic receptionist testified that Ms. J. did not appear nervous or agitated as she left the clinic that day. The receptionist asked where Ms. J. was parked. When Ms. J. said that she was parked behind the office, the receptionist suggested that she leave through the back door. Following a bench trial, the trial court convicted Hanna of sexual penetration by a foreign object on an unconscious person (§ 289, subd. (d)), a felony offense. The trial court also convicted Hanna of misdemeanor battery (§ 242).3 The trial court acquitted Hanna on the remaining counts and sentenced Hanna to one year in county jail followed by three years of formal probation.

On appeal, Hanna claimed the evidence was insufficient to establish the elements that Ms. J. was unconscious of the nature of the act and that he knew Ms. J. was not aware of its nature.4 We affirmed. We first held that Ms. J. was unconscious of the nature of Hanna's act because she was not aware of the essential characteristics of that act due to Hanna's fraudulent representation that he intended to give her a massage. We further held that Hanna knew full well that from her facedown position that Ms. J. could not see what he was doing and was unaware of the sexual assault he was about to perpetrate. Accordingly, we held, sufficient evidence was presented to convince a rational trier of fact beyond a reasonable doubt that Hanna had violated section 289, subdivision (d).

SUBSEQUNT PROCEDURAL HISTORY

Hanna's probation ended on December 13, 2004. On June 24, 2011, Hanna filed a petition for writ of coram nobis with this court.5 We denied the petition without prejudice, directing Hanna to refile the petition with the trial court. On October 25, 2011, Hanna filed a petition for writ of coram nobis with the trial court. The trial court denied the petition without prejudice on November 29, 2011.

On December 23, 2013, Hanna filed a second petition for writ of coram nobis with this court. We denied the petition because Hanna had failed to state grounds for relief. However, our denial order also stated that: "This denial is without prejudice to petitioner's seeking other relief that is appropriate. Petitioner may wish to address the effect of People v. Lyu (2012) 203 Cal.App.4th 1293 on this case, if any."6

On November 16, 2015, Hanna filed a motion with the trial court entitled "Motion to Declare Defendant Samir Hanna Factually Innocent of Pen. Code § 289, subd. (d), Offense and to Set Aside His Conviction." Relying on Lyu, Hanna argued that he was factually innocent of unlawful penetration of an unconscious person and asked the trial court to set aside his conviction under sections 851.86 and 1385.7 At the motion hearing, the trial court first asked Hanna's attorney, "How do I grant a factual innocence finding, counsel?" Hanna's attorney noted that he could not take the usual approach—filing a habeas petition—since Hanna was no longer in custody. Nevertheless, counsel contended, the trial court could dismiss the case in the interest of justice under section 1385 or "at the very least, reduce it and then set it for review down the road where perhaps the court could entertain a 1203.4 motion."8

"I guess I'm in the same place I have been all along," the trial court observed. "I don't know what the remedy is for the change in the law. I really don't." Nevertheless, the court stated, "I don't think a finding of factual innocence is appropriate." "I don't know that [section] 1385 would be an appropriate vehicle either," the court noted. In the end, the trial court said, "I don't know frankly what the appropriate way to handle this would be. So I'm just going to leave it. It is above my pay grade quite frankly. I don't have an answer." With that, the trial court denied the motion. Hanna timely appealed.

DISCUSSION

I. Hanna Sought Relief Under the Incorrect Statute

At its core, the present appeal poses a seemingly straightforward question—what is the appropriate procedural vehicle for a defendant challenging his conviction after he has completed his probationary sentence? The Third District Court of Appeal recently answered this question, holding that section 1203.4 is the exclusive method for a trial court to dismiss the conviction of a defendant who has successfully completed probation. (People v. Chavez (2016) 5 Cal.App.5th 110, 113, review granted Mar. 1, 2017, S238929 (Chavez).)

In Chavez, supra, 5 Cal.App.5th 110, the defendant pleaded no contest to charges that he offered to sell a controlled substance and failed to appear. The trial court suspended imposition of sentence and placed the defendant on probation for four years. After the defendant successfully completed his probation in 2009, he filed a motion pursuant to section 1385, asking the trial court to dismiss the action in the interests of justice based on ineffective assistance of counsel and asserted legal errors. The trial court concluded that because the motion was brought pursuant to section 1385 rather than section 1203.4, it did not have authority after probation ended to grant the requested relief and thus denied the motion to dismiss. (Id. at p. 113.) On appeal, the People contended that the trial court's denial was not an appealable order. The defendant maintained that the order was appealable and that the trial court erred in ruling it lacked authority to dismiss under section 1385. (Ibid.)

The appellate court concluded that while the denial was an appealable order, section 1203.4 is the exclusive method for a trial court to dismiss the conviction of a defendant who has successfully completed probation. (Chavez, supra, 5 Cal.App.5th at pp. 114-115, 122.) Accordingly, the trial court was without discretion to dismiss the defendant's conviction under section 1385. (Id. at p. 122.) With respect to the threshold issue—whether the denial was an appealable order—the appellate court noted that under section 1237, subdivisions (a) and (b), a defendant may appeal from a final judgment of conviction or from any order made after judgment that affects the substantial rights of the party.9 (Id. at p. 114.) When a defendant is granted probation and the probationary period expires without revocation, the order granting probation is a final judgment within the meaning of section 1237, subdivision (a), and thus an appealable order.10 (Id. at p. 114.)

Next, the court traced the legislative history of section 1385, noting that section 1203.4 was enacted after section 1385 and is more specific. (Chavez, supra, 5 Cal.App.5th at pp. 117-118.) While section 1383 is a general statute, relating to the broad scope of dismissal, section 1203.4 relates to the limited power of dismissal for purposes of probation—the very matter at issue. (Id. at p. 118.) The 1971 amendment of section 1203.4 supported the court's conclusion that 1203.4 is the exclusive method for a trial court to dismiss the conviction of a defendant who has successfully completed probation. (Id. at p. 119.) That year, the Legislature expanded the class of defendants who could obtain section 1203.4 relief to include those who had not successfully completed probation but who should be granted relief in the court's discretion and in the interests of justice. "It would not have been necessary for the Legislature to amend section 1203.4 . . . if courts had retained authority to dismiss `in furtherance of justice' under section 1385 after the Legislature enacted the original section 1203.4." (Id. at pp. 119-120.)

The court also noted that California Supreme Court cases supported its conclusion that section 1203.4, and not section 1385, governs dismissal in a case where the defendant is granted probation and seeks dismissal after the expiration of the probationary period. (Chavez, supra, 5 Cal.App.5th at p. 120.) For example, In re Herron (1933) 217 Cal. 400, 405, addressed whether a trial court could set aside a conviction and dismiss an action after expiration of the probation period. There, the Supreme Court held that the power to dismiss an action under that circumstance was found in the original version of section 1203.4. Likewise, in In re Phillips (1941) 17 Cal.2d 55, 59 and People v. Banks (1959) 53 Cal.2d 370, 384-388, 391, the Supreme Court reiterated that section 1203.4 established the authority of a trial court to set aside the verdict after satisfactory completion of probation. (See People v. Barraza (1994) 30 Cal.App.4th 114, 121 ["Section 1203.4 . . . is the only postconviction relief from the consequences of a valid criminal conviction available to a defendant"]; People v. Picklesimer (2010) 48 Cal.4th 330, 337, fn. 2 [§ 1203.4 motion is rare exception to rule precluding postjudgment motions].) Moreover, subsequent amendments to section 1203.4 have only narrowed the applicability of the statute. (Chavez, at pp. 120-121.) As noted by the Third District, "it would nullify the restrictions imposed by the Legislature and interpreted by the courts if we were to construe the statutes as preserving a trial court's discretion under section 1385 to completely erase a probationer's conviction." (Id. at p. 121.)

The reasoning in Chavez, supra, 5 Cal.App.5th 110 is persuasive as is the supporting authority cited therein. While section 1385 has potentially broad application, the California Supreme Court has cautioned that a trial court's power "is by no means absolute." (People v. Orin (1975) 13 Cal.3d 937, 945.) Indeed, the Legislature can expressly restrict a trial court's discretion to dismiss under the statute. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 518.) Moreover, "[a]lthough the discretion of a trial judge to dismiss a criminal action under . . . section 1385 in the interests of justice `may be exercised at any time during the trial, including after a jury verdict of guilty' [citation], this statute has never been held to authorize dismissal of an action after the imposition of sentence and rendition of judgment." (Barraza, supra, 30 Cal.App.4th at p. 121, fn. 8.) "Use of section 1385 in that manner would be inconsistent with the Supreme Court's strict focus on the language of the statute." (People v. Kim (2012) 212 Cal.App.4th 117, 122.) While section 1203.4 specifically grants the trial court continuing jurisdiction to act after a defendant's conviction has become final, by service of his or her sentence, section 1385 does not grant the trial court this jurisdiction. (See id. at p. 125 [once defendant completed sentence, trial court could not dismiss action under § 1385].)

Here, as in Chavez, supra, 5 Cal.App.5th 110, the defendant sought relief under section 1385, not 1203.4.11 Although Hanna's counsel alluded to filing a 1203.4 motion at a later date, the motion before the trial court sought a dismissal only under section 1385. Thus, the trial court was without discretion to dismiss Hanna's conviction.12 (See id. at p. 122.)

II. The People's Alternative Arguments

The People contends that nether section 851.86 nor section 1385 establish a right to seek relief in the trial court. We agree. As discussed above, the trial court was without discretion to dismiss the defendant's conviction under section 1385.13 Section 851.86 is also an inappropriate vehicle for the relief sought by Hanna. The statute contains no language permitting a defendant to petition the court for a finding of factual innocence. Instead, it simply allows case records to be sealed after a conviction is set aside based on a determination of factual innocence. To the contrary, section 851.8 specifies who may petition the court for a finding of factual innocence and when. (§ 851.8, subds. (a)-(e).) However, establishing factual innocence under section 851.8 "entails establishing as a prima facie matter not necessarily just that the [defendant] had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place." (People v. Matthews ( 1992) 7 Cal.App.4th 1052, 1056.) Given that Hanna has based his factual innocence claim on a case decided a decade after his arrest and conviction, he cannot possibly satisfy this standard.

Lastly, the People contends, Hanna's present appeal must be dismissed because it is based on the same facts as his direct appeal and seeks to overrule our prior opinion affirming his conviction. The People correctly notes that the central issue raised in the instant appeal—whether sufficient evidence supported Hanna's section 289 conviction—was raised in the prior appeal. However, Hanna has cited new case law in support of the present claim, which means it cannot precisely duplicate the arguments on direct appeal. A habeas petitioner may raise "an issue previously rejected on direct appeal when there has been a change in the law affecting the petitioner." (In re Harris (1993) 5 Cal.4th 813, 841.) While Hanna is no longer in custody, neither the language of section 1203.4 nor the cases examining the statute prohibit a defendant from arguing that a change in law compels the requested relief. Once again, however, the problem is not with the basis of Hanna's claim but rather the procedural vehicle he employed when before the trial court.14

The trial court did not have an opportunity to evaluate the merits of Hanna's claim pursuant to section 1203.4 or 1473.7. Although Hanna asks this court to construe this appeal as a writ petition in order to prevent another round of motions and appeals, we decline to do so in the first instance. Nevertheless, our opinion should not be interpreted as precluding Hanna from filing a section 1203.4 or 1473.7 motion with the trial court.

DISPOSITION

The order is affirmed.

CHANEY, Acting P. J. and LUI, J., concurs.