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.




1      Undesignated statutory references are to the Welfare and Institutions Code.

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                                           FACTS
       As mentioned, defendant pled no contest to the crime of stalking and admitted the
prior juvenile adjudication.2
       While he was a minor, defendant committed a robbery and was adjudicated a
delinquent ward of the court. Following defendant’s successful completion of probation
and termination of the wardship, the juvenile court dismissed the delinquency petition
pursuant to section 782.
       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 section 782. In accordance with the plea
agreement, the trial court sentenced defendant to serve four years in state prison (middle
term of two years, doubled) and imposed other orders. The plea agreement entitled
defendant to challenge this decision on appeal. A certificate of probable cause was
issued for this purpose.
                                       DISCUSSION
       Defendant claims the dismissal under section 782 of a petition underlying a
juvenile delinquency adjudication precludes the use of that adjudication as a strike under
the three strikes law. We agree.
       Section 782 provides in relevant part: “A judge of the juvenile court in which a
petition was filed, at any time before the minor reaches the age of 21, may dismiss the
petition or may set aside the findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require such dismissal, or if it finds that
the minor is not in need of treatment or rehabilitation.” This provision “is a general




2      The facts of the current offense are not relevant to the issue raised on appeal.

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dismissal statute” that is similar in its operation to Penal Code section 1385.3 (Derek L.,
supra, 137 Cal.App.3d at pp. 232-233; In re Greg F. (2012) 55 Cal.4th 393, 416 [“similar
to section 782, Penal Code section 1385 grants trial courts the power to dismiss a
criminal action ‘in furtherance of justice’ ”].)
       In Barro, supra, 93 Cal.App.4th 62, the Court of Appeal held that “dismissal
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.” (Id. at p. 66.) In reaching this conclusion, the court
compared Penal Code section 1385 to Penal Code section 1203.4, which provides for
release of a defendant “from all penalties and disabilities resulting from the offense of
which he or she has been convicted” upon successful completion of probation with
certain exceptions, including an exception for the use of such conviction “in any
subsequent prosecution of the defendant for any other offense.” (Pen. Code, § 1203.4,
subd. (a)(1)4; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1430 [prior convictions


3     Penal Code section 1385, subdivision (a), provides in relevant part: “The 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.”
4       Penal Code section 1203.4, subdivision (a)(1), provides in relevant part: “In any
case in which a defendant has fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of the period of probation, or in
any other case in which a court, in its discretion and the interests of justice, determines
that a defendant should be granted the relief available under this section, the defendant
shall, at any time after the termination of the period of probation, if he or she is not then
serving a sentence for any offense, on probation for any offense, or charged with the
commission of any offense, be permitted by the court to withdraw his or her plea of
guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in
either case, the court shall thereupon dismiss the accusations or information against the
defendant and except as noted below, he or she shall thereafter be released from all
penalties and disabilities resulting from the offense of which he or she has been
convicted, except as provided in Section 13555 of the Vehicle Code. . . . However, in

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dismissed under Penal Code section 1203.4 may qualify as strikes in a subsequent
prosecution].) The Barro court noted that, “in contrast to [Penal Code] section 1203.4,
[Penal Code section 1385] does not address the effect of the dismissal of a prior
conviction on the sentence of the defendant in a different case,” and reasoned that “if the
Legislature had intended a dismissal under [Penal Code] section 1385 to have the same
prospective adverse consequences as [Penal Code] section 1203.4, the Legislature would
have amended [Penal Code] section 1385 by adding language to that effect.” (Barro,
supra, 93 Cal.App.4th at pp. 66-67.) 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.)
       Our research has disclosed no decisional authority addressing whether a dismissal
under section 782 similarly erases the prior juvenile adjudication, precluding the use of
that adjudication as a strike under the three strikes law. However, we conclude the
reasoning of Barro, supra, 93 Cal.App.4th 62 applies equally to the question now before
us. Just as section 782 is similar in its wording to Penal Code section 1385, the courts
have found section 1772 to be comparable to Penal Code section 1203.4. (See People v.
Jacob (1985) 174 Cal.App.3d 1166, 1174, fn. 3; People v. Shields (1991) 228 Cal.App.3d
1239, 1243; People v. Daniels (1996) 51 Cal.App.4th 520, 525.)
       Section 1772, subdivision (a), provides: “Subject to subdivision (b), every person
honorably discharged from control of the Youth Authority Board who has not, during the
period of control by the authority, been placed by the authority in a state prison shall
thereafter be released from all penalties and disabilities resulting from the offense or



any subsequent prosecution of the defendant for any other offense, the prior conviction
may be pleaded and proved and shall have the same effect as if probation had not been
granted or the accusation or information dismissed.”

                                              5
crime for which he or she was committed, and every person discharged may petition the
court which committed him or her, and the court may upon that petition set aside the
verdict of guilty and dismiss the accusation or information against the petitioner who
shall thereafter be released from all penalties and disabilities resulting from the offense or
crime for which he or she was committed, including, but not limited to, any
disqualification for any employment or occupational license, or both, created by any
other provision of law.” Subdivision (b)(4) provides that, notwithstanding subdivision
(a), “[t]he conviction of a person described by subdivision (a) may be used to enhance the
punishment for a subsequent offense.” (§ 1772, subd. (b)(4).)
       Thus, like Penal Code section 1203.4, section 1772 contains language that the
person “shall thereafter be released from all penalties and disabilities resulting from the
offense,” and both provisions provide an exception for use of the dismissed conviction in
subsequent prosecutions. Moreover, even before subdivision (b)(4) was added to section
1772 (compare Stats. 1994, ch. 453, § 20, pp. 2556-2557 with Stats. 1982, ch. 778, § 2,
pp. 3034-3035), the Court of Appeal explained in People v. Jacob, supra, 174
Cal.App.3d 1166, that “the legislative history and the express language in [this provision]
state[s] that the purpose of a dismissal is to release a defendant from all penalties and
disabilities resulting from the offenses for which he [or she] was committed, and not from
penalties or disabilities resulting from future offenses.” (Id. at p. 1174, fn. 3; see also
People v. Shields, supra, 228 Cal.App.3d at p. 1243.) Thereafter, the Legislature added
subdivision (b)(4), making abundantly clear that a dismissal under section 1772 may be
used to enhance the punishment for a subsequent offense. (Stats. 1994, ch. 453, § 20,
pp. 2556-2557.)
       Unlike section 1772, section 782 does not address whether or not the dismissal of
a juvenile petition may be used to enhance the punishment for a subsequent offense. To
borrow from the Barro court’s reasoning, “if the Legislature had intended a dismissal



                                               6
under section [782] to have the same prospective adverse consequences as section [1772],
the Legislature would have amended section [782] by adding language to that effect.”
(Barro, supra, 93 Cal.App.4th at p. 67.) Indeed, it could have done so at the same
time it amended section 1772.
       Nevertheless, the Attorney General argues that cases interpreting section 1772 and
Penal Code section 1203.4 should inform our interpretation of section 782. We disagree.
As we have explained, section 782 is more analogous to Penal Code section 1385 than
either section 1772 or Penal Code section 1203.4. Nor are we persuaded by the fact
Penal Code section 1385 provides for dismissal “in furtherance of justice,” while section
782 provides for dismissal where either “the interests of justice and the welfare of the
minor require such dismissal” or “the minor is not in need of treatment or rehabilitation.”
Based on this difference in language, the Attorney General argues: “The court’s decision
in [Barro, supra, 93 Cal.App.4th 62] relied on the fact that the charge underlying the
prior conviction had been dismissed in the interest of justice.” Not so. The dispositive
consideration in Barro was not that the charge underlying the defendant’s conviction was
dismissed in furtherance of justice under Penal Code section 1385, but instead that the
charge was dismissed pursuant to a statute that, unlike Penal Code section 1203.4, “does
not address the effect of the dismissal of a prior conviction on the sentence of the
defendant in a different case.” (Barro, supra, 93 Cal.App.4th at pp. 66-67.) Here, it is
unclear whether the juvenile court dismissed the petition underlying defendant’s juvenile
adjudication because “the interests of justice and the welfare of the minor require[d] such
dismissal” or because “the minor [was] not in need of treatment or rehabilitation.”
(§ 782.) But in either case, the petition was dismissed pursuant to section 782, a
provision that does not have the same prospective adverse consequences as section 1772.




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       We conclude the juvenile court’s dismissal under section 782 of the petition
underlying defendant’s robbery adjudication precluded the use of that adjudication as a
strike under the three strikes law.
                                        DISPOSITION
       The judgment is modified by dismissing the strike finding, vacating defendant’s
four-year sentence, and substituting the two-year middle term. As modified, the
judgment is affirmed.



                                                      HOCH          , J.



We concur:



       BLEASE           , Acting P.J.



      MURRAY            , J.




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