Filed 12/2/14




                 TO BE PUBLISHED IN THE OFFICIAL REPORTS




                IN THE APPELLATE DIVISION OF THE SUPERIOR COURT

                      COUNTY OF FRESNO, STATE OF CALIFORNIA



THE PEOPLE,                    )             Case Nos. 2448 & 2449
                               )
     Plaintiff and Respondent, )             (Fresno Superior Court, Dept.
                               )             95, Nos. F98918404-5 &
      v.                       )             F98914875-0)
                               )
RAFAEL ESPINOZA,               )
                               )             OPINION
     Defendant and Appellant.  )
                               )
                               )
                               )
                               )



                                            I.

                                PROCEDURAL BACKGROUND
        Twice     convicted     by   plea   of    misdemeanor   domestic-violence

charges 14 years prior, appellant requested the trial court grant

him     relief     under   Penal     Code   section    1385.1   The   trial     court

declined his request, ruling that it no longer had jurisdiction to

act under the statute. Appellant now brings these appeals from the

trial       court’s    orders    denying    his    invitation   to    dismiss    his

misdemeanor        convictions.      We   have   consolidated   his   appeals    for
purposes of decision. We agree the trial court could not grant

1
    All further references are to the Penal
                                          1 Code unless otherwise noted.
relief under section 1385, and we thus affirm.

        Appellant pled guilty to one misdemeanor count of violating

section 273.5 in 1998 (Case No. 2449) and no contest                             to one

misdemeanor count of violating that same section in 1999 (Case No.

2448).       He      received   suspended         sentences      of    three   years   of

probation for both offenses.             Probation terms were never formally

revoked and they expired on October 21, 2001, and January 20,

2002.

        In 2011, appellant, a noncitizen, came to the attention of

immigration       authorities,     who   began      detention         proceedings.     On

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

                                             2
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.)

                                                 3
     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

                                        4
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.]

                                                    5
        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

                                        6
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

                                             7
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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