People v. Tran: A Judge May Consider Facts within a Presentence Report in Ruling on a PC 17B Motion.

Mr. Tran got into a fight with one Mr. Dao.  Dao came to Tran’s front door and shot into Tran’s home while Tran’s children and baby mamma were inside.  In retaliation, Tran went to Dao’s place and into it shot. 

Tran was charged with shooting into an inhabited dwelling, PC 246, a “strike” offense.   A plea bargain was reached whereby Tran would plead guilty to felony assault by means likely to cause great bodily injury, formerly PC 245(a)(1), a “non-strike” offense.  Tran received a three-year term of probation and completed his probation successfully. 

He then returned to court and moved the court to do two things; [1] reduce his conviction to a misdemeanor under PC 17B, and [2] allow Tran to withdraw his guilty plea and order the matter dismissed under 1203.4 (often incorrectly called an “expungement”).  The court denied both motions, telling Tran to come back after one year. 

One year on, Tran came back to court, making the same two motions.  The court granted the 1203.4 relief, but denied the motion to reduce the matter to a misdemeanor under 17B, making the rather foolish remark that he was denying the motion because there is “[t]oo much shooting going on in Sacramento [C]ounty. I sign a ton of warrants for people getting shot at. Enough is enough.” (I hope for the sake of the people of Sacramento County this comment was a transitory lapsus linguae and that their judges do not ordinarily use subsequent unrelated conduct by unrelated persons as a legal basis for ruling on motions).

Tran came back once more and made another 17B motion.  A judge again denied the motion, but this time gave a more legally acceptable reason; that Tran’s conduct in shooting into Dao’s house was too serious to be ruled a misdemeanor.  Tran appealed arguing that the court improperly considered the recitation of facts in Probation’s presentence report.  Tran argued that the trial court could only consider the record of conviction (which excludes post-plea reports) in making its ruling, analogizing Tran’s case to cases involving a court’s determination of whether a previous conviction constitutes a “strike” (where the court is limited to the record of conviction). 

This panel distinguishes the 17B motion here from judicial determinations of whether a past conviction constitutes a strike and affirms.   A court may use the facts within a presentence probation report in ruling on a 17B motion.