September 17, 2013 appellant filed a “Motion to Dismiss Pursuant
to Penal Code section 1385” in each Superior Court case. In the
motions he contended that the trial court had the authority
pursuant to section 1385 to dismiss his convictions for violating
section 273.5 in the interests of justice. The motions were heard
together on November 21, 2013, and denied by the trial court on
the grounds it lacked jurisdiction to act under section 1385 as
requested.
In these appeals, appellant contends that because section
1385 contains no limiting language, nor does an enactment of the
legislature extinguish the jurisdiction of the Superior Court over
his misdemeanor cases, the trial court retained jurisdiction to
vacate his guilty pleas and convictions subsequent to rendering
judgment and imposing sentence. Thus, in his view, the trial
court’s failure to exercise discretion under section 1385 is an
abuse of discretion, and the appropriate relief on appeal is to remand the matter “in order that the trial court may exercise its
discretion to determine whether underlying Penal Code section
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273.5 charge[s] should be dismissed in the interest of justice.”
We reject this contention.
II.
DISCUSSION
A. Standard of Review The question before us is whether a trial court retains the
ability to dismiss a conviction under section 1385 after it has
become final. While we apply an abuse of discretion standard to a
review a trial court's decision to deny relief under section 1385
(People v. Carmony (2004) 33 Cal.4th 367, 374-376), this application is premised on the court’s ability to grant relief
under the statute. Thus, when the trial court’s decision is based
on a ruling that it lacked post-judgment jurisdiction under a
statute to grant the relief requested, the question involves
statutory interpretation, a question of law which we review de
novo. (In re Martinez (2012) 210 Cal.App.4th 800, 809.)
B. The Trial Court Properly Denied Relief Under Section 1385
Section 1385, subdivision (a), in relevant part, provides
“[t]he judge or magistrate may, either of his or her own motion or
upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.” Section
1385 contemplates only dismissal of criminal actions, or a part
thereof (People v. Hernandez (2000) 22 Cal.4th 512, 521-522, 523,
524), but not sentencing factors or historical facts (In re
Varnell (2003) 30 Cal.4th 1132, 1137). While the statute 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.)
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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 (Romero).) Moreover, “[a]lthough the discretion of a trial judge to dismiss a
criminal action under Penal Code 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. [Citation.]” (People v.
Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8. (Barraza).) “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 (Kim).) Appellant first argues that it would be “inconsistent, and
defy logic” to permit a court to dismiss an action under section
1203.4, but to prevent it from dismissing that same action under
section 1385. This result is neither inconsistent nor illogical.
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.
Appellant’s argument would seemingly render nugatory sections
1203.4, 1203.4a, 4852.01 (certificate of rehabilitation and pardon
in felony matters), and California Constitution, article V,
section 8 (Governor’s pardon authority). None of these statues or
powers would be needed if a trial court perpetually maintained the ability to make a conviction simply disappear under section 1385.
We will restrictively interpret section 1385 “where there is a
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statutory scheme designed to effect a particular result and where
the invocation of section 1385 would nullify that result.” (People
v. Luckett (1996) 48 Cal.App.4th 1214, 1219.) Moreover, the power to eliminate a conviction under section
1385 as envisioned by appellant would be more expansive and
enduring than that granted under section 1016.5, or petitions for
writ of habeas corpus, coram nobis, and mandate – none of which
are available to appellant. (See People v. Villa (2009) 45 Cal.4th
1063, 1072-1074; People v. Kim (2009) 45 Cal.4th 1078, 1099;
People v. Shokur (2012) 205 Cal.App.4th 1398, 1406-1407.) Appellant claims that these cases are inapposite because he is not
bringing petitions for habeas corpus, coram nobis, or a
nonstatutory motion, and these cases do not address or foreclose
section 1385 relief. We do not believe section 1385 can be
construed as a stop-gap statute meant to address cases where all
other forms of post-judgment relief might fail. Instead, relief
under section 1385 must be sought promptly while there is still an
on-going action or pending proceeding.
As our Supreme Court explained in People v. Picklesimer (2010) 48 Cal.4th 330, 337:
‘There is no statutory authority for a trial court to entertain a postjudgment motion that is unrelated to any proceeding then pending before the court. [Citation.] Indeed, a motion is not an independent remedy. It is ancillary to an on-going action and “‘implies the pendency of a suit between the parties and is confined to incidental matters in the progress of the cause. As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy.’” [Citation.] In most cases, after the judgment has become final, there is nothing pending to which a motion may attach.' [Citation.]
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Picklesimer acknowledged there were some exceptions to this rule:
These exceptions generally arise in instances where the Legislature has expressly authorized such a motion. (See, e.g., § 17, subd. (b)(3) [motion to reduce a ‘wobbler’ to a misdemeanor]; § 1016.5, subd. (b) [motion to vacate judgment and withdraw a plea based on the immigration consequences of the plea]; § 1203.4 [motion by probationer to vacate plea and dismiss charges]; § 1473.6 [motion to vacate judgment based on newly discovered evidence of fraud].)
(Id. at p. 337, fn. 2.)
Here, we see nothing in section 1385 that expressly grants the
trial court post-judgment jurisdiction to dismiss a long-final
conviction.
Appellant also argues that because his matters were probation
cases, the trial court retained jurisdiction under section 1385.
This is because the “matter remained a viable action as there
remained legal remedies which the law of the State of California
permitted [the trial court] to grant or deny,” and he gives as an
example jurisdiction to dismiss under section 1203.4. This
argument, however, ignores the fact that section 1203.4
specifically confers limited jurisdiction over a probationary
case, once probation has terminated, either by operation of law or
by order of the court. That jurisdiction extends solely to grant
relief of dismissal in an appropriate case. Such a dismissal does
not make the conviction disappear and it is not considered an
“expungement” under either California law (People v. Frawley (2000) 82 Cal. App. 4th 784, 790-791) or federal immigration law
(Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1175). Section 1385, however, wipes a defendant’s record clean and “[t]he
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defendant stands as if he had never been prosecuted for the
charged offense.” (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136.)
Case law affirms our view that a trial court lacks post-
judgment jurisdiction to dismiss a final conviction under section
1385. In Kim, supra, 212 Cal.App.4th 117, the trial court granted defendant’s post-judgment request to dismiss his long final
convictions, under section 1385, so that defendant could avoid the
adverse immigration consequences of that conviction. The
reviewing court reversed, holding “a trial court has no authority
to dismiss an action after judgment has been imposed and the
defendant has served his or her sentence.” (Id. at p. 119.)
Appellant seeks to distinguish Kim on the basis that it involved a prison sentence, and not a grant of probation. In our view, this
is a distinction without a difference.
Appellant relies on People v. Orabuena (2004) 116 Cal.App.4th
84 (Orabuena) to bolster his claim. In Orabuena, the issue was whether the trial court, having granted probation, could dismiss a
misdemeanor conviction, for purposes of granting defendant
probation under Proposition 36. The reviewing court concluded
that in the procedural posture of that case, the trial court could
dismiss that conviction. The defendant had admitted a misdemeanor
Vehicle Code violation early in the proceedings and was granted
probation as to that count, and it was several months later that
he pled no contest to two drug charges. However, the Vehicle Code
conviction precluded a grant of Proposition 36 probation. (Id. at pp. 89-90.) On appeal, defendant argued the trial court had the
ability under section 1385 to dismiss the Vehicle Code conviction
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and abused its discretion when it did not do so.
Orabuena concluded defendant was correct: In our view, the fact that the court had suspended imposition of sentence and ordered defendant to probation on the misdemeanor Vehicle Code section 14601 conviction before it ordered defendant to probation on the nonviolent drug offenses does not preclude the court from exercising its authority under section 1385 to dismiss the disqualifying misdemeanor conviction in the furtherance of justice so that defendant may become eligible for sentencing under Proposition 36.
(Orabuena, supra, 116 Cal.App.4th at p. 98.)
In Orabuena, however, the defendant had not completed his probationary term; the order granting probation suspended the
imposition of the defendant’s sentence. (Orabuena, supra, 116
Cal.App.4th at p. 97.) Orabuena stated:
“While we do not quarrel with ... Barraza, it does not apply to this case since the court had not rendered judgment or sentenced defendant. As noted previously, imposition of sentence ... was suspended and defendant was ordered to probation.... In such cases, no judgment has been entered and no sentence has been imposed. [Citation.]”
(Ibid., fn. omitted.)
The Orabuena court held it therefore still had jurisdiction to act. Here, however, appellant’s probationary terms expired more
than ten years ago. The trial court simply did not have
jurisdiction to act under section 1385. Appellant’s cases were
final more than ten years ago and there is nothing - no on-going
action or pending proceeding - which makes his cases subject to
section 1385 relief.
To further his jurisdictional arguments, appellant contends that “[j]udgment was never imposed in the instant action[s].
Rather it was suspended.” This is an incorrect statement of the
8
law. “Where, as here, the probationary period expires without
revocation, the order granting probation must be considered the
final judgment under the provisions of section 1237, subdivision
(a) [i.e., the final judgment of conviction].” (People v. Chandler
(1988) 203 Cal.App.3d 782, 787; see also §§ 1191, 1201; People v.
Ibanez (1999) 76 Cal.App.4th 537, 543 [“In a criminal case, judgment is rendered when the trial court ... pronounces
sentence].)
Appellant next relies on language in Romero, supra, 13 Cal.4th 497, for the proposition that the literal language of
section 1385 does not limit when a court may exercise its
discretion to order an action dismissed in the furtherance of
justice. While this is true, the Romero court clearly did not contemplate or authorize post-judgment dismissals. First, the
issue in Romero was whether a court could, on its own motion, strike prior felony conviction allegations in cases arising under
the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.) It did not consider the trial court’s ability to dismiss a conviction
after judgment had been entered, sentence had been imposed and
served, and the judgment was final. It is axiomatic that a case
cannot be considered authority for a proposition it does not
consider. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Second, Romero recognized section 1385 relief did not exist post- judgment, by noting that “it is well established that a court may
exercise its power to strike under section 1385 ‘before, during or
after trial,’ up to the time judgment is pronounced.” (Romero, supra, 13 Cal.4th at p. 524 fn. 11 (emphasis added), citing People
v. Orin, supra, 13 Cal.3d at p. 945; People v. Superior Court
9
(Howard) (1968) 69 Cal.2d 491, 505.) Accordingly, Romero provides no support for appellant’s position.
III.
DISPOSITION
The orders denying appellant’s request to dismiss pursuant to
section 1385 are affirmed.
Dated this 2nd day of December, 2014
_____________________________________ Hon. F. Brian Alvarez Judge
We Concur:
_____________________________________ Hon. Donald S. Black Presiding Judge, Appellate Division of the Fresno Superior Court
_____________________________________ Hon. W. Kent Hamlin Judge
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APPEAL from a judgment of the Fresno Superior Court,
Department 95, David Gottlieb, Judge.
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AI Brief
AI-generated · verify before citing
Holding. A trial court lacks jurisdiction to grant a motion to dismiss a criminal conviction under Penal Code section 1385 after the judgment has become final and the sentence has been served.
Issues
Does a trial court retain jurisdiction to dismiss a criminal conviction under Penal Code section 1385 after the judgment has become final?
Does the expiration of a probationary period without revocation constitute a final judgment for the purposes of section 1385 jurisdiction?
Disposition. affirmed
Quotations verified verbatim against the opinion
“this statute has never been held to authorize dismissal of an action after the imposition of sentence and rendition of judgment.”
“a trial court has no authority to dismiss an action after judgment has been imposed and the defendant has served his or her sentence.”
“relief under section 1385 must be sought promptly while there is still an on-going action or pending proceeding.”