People v. Haro

Filed 11/21/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C071328

v. (Super. Ct. No. 11F00681)

MARCOS HARO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, John P. Winn, Judge. Affirmed as modified.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Marcos Haro appeals from the judgment entered following his plea of no contest to the crime of stalking (Pen. Code, § 646.9, subd. (a)) and admission to

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having a prior juvenile adjudication for robbery, a serious felony within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subd. (a)-(d); 667, subd. (b)-(i)). Prior to the plea, the trial court denied defendant’s motion to dismiss the strike allegation based on the fact that the delinquency petition supporting the allegation was dismissed by the juvenile court pursuant to Welfare and Institutions Code, section 782.1 This juvenile adjudication was used to double his sentence for the stalking conviction. On appeal, defendant renews his argument that the dismissal under section 782 of the petition underlying his robbery adjudication precludes the use of that adjudication as a strike under the three strikes law. We agree. As we explain, section 782 “is a general dismissal statute” that is similar in its operation to Penal Code section 1385. (Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 232-233 (Derek L.).) “[D]ismissal under [Penal Code] section 1385 of the charge underlying a prior conviction operates, as a matter of law, to erase the prior conviction as if the defendant had never suffered the conviction in the initial instance.” (People v. Barro (2001) 93 Cal.App.4th 62, 66 (Barro).) Thus, “dismissal under [Penal Code] section 1385 of the charge underlying a prior conviction which would otherwise qualify as a strike precludes the use of that prior conviction as a strike under the Three Strikes law.” (Id. at p. 64.) We conclude a dismissal under section 782 of the petition underlying a juvenile adjudication has the same effect. We therefore modify the judgment to dismiss the strike finding, vacate defendant’s four-year sentence, substitute the two-year middle term, and affirm the modified judgment.