Tooby's California Post-Conviction Relief for Immigrants

(A)

In General.  The superior court has authority to dismiss all or part of a criminal action in the interests of justice pursuant to Penal Code § 1385.  This applies to one or more individual counts or sentence enhancements,[363] or some unnecessary language from a charge.  The interests of justice is a very broad standard, and can encompass many different reasons ranging from constitutional violations and grounds of legal invalidity, see § 6.66, infra, on the one hand, to purely equitable considerations, see § 6.67, infra, such as immigration consequences, on the other.  Depending on the court's reasons for dismissal, the court's order can have several very important immigration effects.  If the dismissal is based, at least in part, on a ground of legal invalidity, it arguably eliminates a count of conviction for immigration purposes.  See § 6.60, infra.  A dismissal of a sentence enhancement or sentence, based on any ground, even purely equitable grounds, eliminates the immigration consequences of the sentence.  See § § 6.61-6.62, infra.  Eliminating certain surplus language from a criminal charge, before or even after a plea has been entered, may also eliminate certain immigration consequences of a conviction.  See § 6.63, infra.

[363] Some sentence enhancements can be dismissed under Penal Code § 1385, and the Legislature has specifically precluded § 1385 from applying to others.  See § 6.59, infra.