Tooby's California Post-Conviction Relief for Immigrants

"If the court has the authority pursuant to [Penal Code § 1385] subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)."[379]

Dismissal of a criminal charge, granted after a conviction has arisen by plea or trial, completely eliminates any sentence that may have been imposed.  Under immigration law, it is the final sentence that counts for immigration purposes, regardless of the reason for alteration of the sentence.[380]  Because California law treats a dismissal of a criminal charge, even after conviction, as though the defendant had never been prosecuted, the dismissal completely eliminates any sentence imposed on the defendant for that conviction.  Immigration law therefore also regards the sentence as having been completely eliminated, regardless of the reason given for the dismissal.

            The immigration effects of a sentence that has been imposed have been described at length elsewhere.[381]  They are summarized below.  Since the dismissal order places the defendant in the same position under California law as though s/he had never been prosecuted,[382] no sentence at all exists, and therefore the defendant should suffer none of the adverse immigration effects of sentence. 

[379] Penal Code § 1385(c)(1).

[380] Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005)(criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd 465 F.3d 263 (6th Cir. 2006).  See N. Tooby, Post-Conviction Relief For Immigrants § § 7.50-7.54 (2004); N. Tooby & J. Rollins, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.29 (2005). 

[381] See N. Tooby & J. Rollin, Criminal Defense of Immigrants Chapter 10 (2007).

[382] People v. Alvarez (1996) 49 Cal.App.4th 679, 691-692 (prior conviction that is dismissed in the interests of justice under Penal Code § 1385(a) is void for all purposes, but the defendant must prove that the conviction itself was dismissed, as opposed to dismissal of a later probation violation allegation in the same action being dismissed); cf. People v. Barro (2001) 93 Cal.App.4th 62 (after dismissal of prior mayhem charge, pursuant to Penal Code § 1385, in the interests of justice, the mayhem conviction could not qualify as a strike for purposes of doubling the sentence for a new felony conviction under the Three Strikes law).