The immigration effects of a dismissal order granted under Penal Code § 1385 depend on three aspects of the order:

 

            (a)  the nature of the charge or allegation that has been dismissed,

 

            (b)  the stage in the criminal case at which the dismissal occurs, and

 

            (c)  the nature of the ground upon which the dismissal is based.

 

                 Dismissal of a conviction may eliminate a conviction-based ground of removal or bar to relief if it is granted, at least in part, on a ground of legal invalidity.  See § 6.66, infra.  Dismissal of a sentence enhancement or sentence will eliminate the immigration consequences of 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.

Other

CAL POST CON"VEHICLES"PENAL CODE 1385"LIMITATIONS
People v. Tuck (1st Dist. Mar. 27, 2012) 204 Cal.App.4th 724, 730, 139 Cal.Rptr.3d 407 (rejecting argument that mandatory registration as a sex offender, under Penal Code 290, can be stricken in the interest of justice under Penal Code 1385: The registration requirement is neither an action, a criminal count, nor a factual allegation. Nor is registration under section 290 considered to be punishment.). In People v. Tuck (1st Dist. Mar. 27, 2012) 204 Cal.App.4th 724, 730, 139 Cal.Rptr.3d 407, the court held that the trial court had no authority, under Penal Code 1385, to strike the mandatory requirement that a defendant register as a sex offender under Penal Code 290. The court reasoned: The registration requirement is neither an action, a criminal count, nor a factual allegation. Nor is registration under section 290 considered to be punishment. (Ibid.) The courts reasoning, in full, was as follows: Tuck contends the trial court could have relieved him of the registration requirement under section 1385 and incorrectly believed it lacked the discretion to do so. There is no merit to this argument. Section 1385, subdivision (a), authorizes a trial court to dismiss a criminal action in furtherance of justice. [T]he power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Tuck points to no case in which the trial court's authority under section 1385 has been applied to the lifetime registration requirement of section 290, and we are aware of none. Tuck quotes People v. Picklesimer, supra, 48 Cal.4th at page 344, for the proposition that there is no constitutional bar to having a judge exercise his or her discretion to determine whether [a defendant] should continue to be subject to registration. This quote is taken entirely out of context. There, the court was holding only that the decision of the United States Supreme Court in Apprendi v. New Jersey (2000) 533 U.S. 466 did not require a jury rather than the court to find that a person committed an offense not listed in section 290, subdivision (c) as a result of sexual compulsion or for purposes of sexual gratification for the purpose of imposing registration under section 290.006. (48 Cal.4th at pp. 343"344.) The court was not addressing the authority of courts to strike a statutory consequence of a conviction. The registration requirement is neither an action, a criminal count, nor a factual allegation. Nor is registration under section 290 considered to be punishment. (People v. Castellanos (1999) 21 Cal.4th 785.) Rather, it is a consequence of conviction of certain enumerated crimes. In Hofsheier, the court noted that [t]he duty to register as a sex offender under section 290, subdivision (a), cannot be avoided ... through the exercise of judicial discretion. (Hofsheier, supra, 37 Cal.4th at p. 1196.) Section 1385 does not give the trial court discretion to modify statutorily prescribed consequences of a conviction or to strike the registration requirement. (Cf. In re Parnell (2003) 30 Cal.4th 1132, 1139 [a trial court's power to dismiss an action under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation]; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, superseded by statute on other grounds as stated in People v. Carlson (1974) 37 Cal.App.3d 349, 355, fn. 4 [subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch].) (Id. at 730-31.)