225 Cal. App. 4th 1
Cal. Ct. App.2014Background
- In 2008 Marinelli pleaded nolo contendere to attempted lewd or lascivious act on a child under 14 (Pen. Code §§ 664, 288(a)) and attempted distribution/exhibition of harmful material to a minor (Pen. Code §§ 664, 288.2(b)) and was placed on three years formal probation.
- After completing probation, Marinelli moved under Penal Code § 1203.4(a) to withdraw his plea and have the conviction dismissed; the trial court granted the motion.
- The People appealed, arguing § 1203.4(b) bars relief for “any violation of Section 288,” which they contended includes attempted violations.
- The sole legal question: whether an attempted violation of § 288 counts as “any violation of Section 288” within the § 1203.4(b) exception.
- The trial court relied on People v. Lewis, which held § 1203.4(b) does not apply to attempts; the appellate court considered statutory text, purpose, and legislative history and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an attempted violation of § 288 is covered by the § 1203.4(b) exception "any violation of Section 288" | The People: "any violation" includes attempts, so § 1203.4(a) relief is barred | Marinelli: "violation" means completed offenses; attempts are distinct and not listed, so § 1203.4(a) relief applies | Court: Attempts are distinct offenses and § 1203.4(b) does not bar relief for attempted § 288 offenses |
Key Cases Cited
- People v. Lewis, 146 Cal.App.4th 294 (Fourth Dist. 2006) (construed § 1203.4(b) as not applying to attempts)
- People v. Chandler, 203 Cal.App.3d 782 (defendant entitled to § 1203.4 relief after completing probation)
- People v. Failla, 140 Cal.App.4th 1514 (statutory interpretation of § 1203.4 reviewed de novo)
- People v. Reed, 129 Cal.App.4th 1281 (attempt is a separate and distinct offense)
- People v. Le, 154 Cal.App.3d 1 (addresses attempt as distinct from completed crime)
- People v. Barrajas, 62 Cal.App.4th 926 (statutory construction can include attempts where literal reading would be absurd)
- Flannery v. California Highway Patrol, 61 Cal.App.4th 629 (legislature presumed to know judicial constructions when amending statutes)
- People v. Squier, 15 Cal.App.4th 235 (Penal Code construed to effect object and promote justice)