Tooby's California Post-Conviction Relief for Immigrants

The prosecutor may move to dismiss the charges, or the court may do so on its own motion, on certain grounds under Penal Code § 1385.[63]  The court must set forth its reasons in the minutes, and failure to do so renders the dismissal invalid.[64]  Defense counsel should ask the court to exercise its power to dismiss on its own motion, rather than make a defense motion to dismiss.[65]  The court may order dismissal over the objection of the prosecution, and may consider many factors in reaching its decision whether the dismissal is in furtherance of justice.[66]  A suggestion that the court dismiss a case under Penal Code § 1385 may be made at any time before, during, or after trial.[67]  Dismissals in the furtherance of justice, however, must be made before judgement is imposed.[68]  See § § 6.73, supra.

            PRACTICE TIP: After the conviction of a minor charge has been vacated, in which the client has long since paid the penalty and probation (if any) has been terminated, the court frequently will be willing to dismiss the charges under Penal Code § 1385, even over the objection of the prosecution.

            There are many other grounds for forced dismissal of criminal charges, including violation of the client’s rights.[69]

            The immigration effect of a dismissal under Penal Code § 1385 varies.  If the dismissal comes after charges have been filed, but before there has been any verdict or plea of guilty or no contest, then there is no conviction for immigration purposes.[70]  If there has been a conviction, by plea or verdict, followed by an order setting aside the conviction, plea or judgment on some ground of legal invalidity, that order is sufficient to eliminate the conviction for immigration purposes.[71]  If a conviction has occurred, however, by plea or verdict, followed by dismissal under § 1385 without a prior order vacating the conviction as legally invalid, the DHS might not accept the § 1385 dismissal as eliminating the conviction for immigration purposes, at least if “rehabilitation” played a part in the court’s decision to grant the order.  Counsel could argue in immigration court, however, that Penal Code § 1385 is not a state “rehabilitative” statute, since it covers dismissals for a wide variety of purposes aside from rehabilitation, and that a dismissal under that statute is therefore not covered by the rule that orders dismissing convictions under “state rehabilitative statutes” are ineffective to eliminate the immigration consequences of a conviction.[72]

[63] For a listing of proper grounds, see C.E.B., California Criminal Law: Procedure And Practice § § 26.9‑26.36 (2008); see generally Erwin, Millman, et al., Calif. Criminal Defense Practice § § 51.20 ff.

[64] People v. Orin (1975) 13 Cal.3d 937, 943, 120 Cal.Rptr. 65, 69.

[65] See People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 137, 262 Cal.Rptr. 576, 582 (defendant made “motion”; court’s dismissal was reversed because record did not reflect that court expressly exercised its own authority under § 1385).

[66] People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501, 72 Cal.Rptr. 330, 337.

[67] People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 503, 72 Cal.Rptr. 330, 337 (after jury returned verdict of guilty); People v. Polk (1964) 61 Cal.2d 217, 228, 37 Cal.Rptr. 753, 760 (after defense had begun); People v. Valenti (1957) 49 Cal.2d 199, 202, 316 P.2d 633, 634 (after prosecution had begun its case); In re Krieger (1969) 272 Cal.App.2d 886, 77 Cal.Rptr. 822 (after entry of guilty plea); People v. Silva (1965) 236 Cal.App.2d 453, 455, 46 Cal.Rptr. 87, 89 (before trial to enable prosecution to recharge two crimes in one accusatory pleading; appellate court ruled this was an improper reason because it was in response to trial court’s refusal to join the two charges); C.E.B., California Criminal Law -- Procedure And Practice, § 26.29, p. 633 (2008).

[68] People v. Orin (1975) 13 Cal.3d 937, 946, 120 Cal.Rptr. 65, 533 P.2d 193 (before and during trial); People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 503, 72 Cal.Rptr. 330, 446 P.2d 138 (after trial); but see People v. Johnson (1979) 95 Cal.App.3d 352, 359, 157 Cal.Rptr. 150 (not on appeal).  See generally California Criminal Defense Practice § 51.22[1], p. 51‑53 (2009).

[69] See generally C.E.B., California Criminal Law: Procedure And Practice § § 26.34 ff. (2008).

[70] 8 U.S.C. § 1101(a)(48)(A).

[71] See Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999)(en banc)(orders vacating convictions under “state rehabilitative statutes” are not effective to eliminate a conviction for immigration purposes); Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998)(state order vacating conviction under writ of audita querela, where there was no claim of legal invalidity, was ineffective to eliminate a conviction for immigration purposes); United States v. ex rel. Freislinger on Behalf of Kappel v. Smith, 41 F.2d 707 (7th Cir. 1930)(order vacating invalid conviction eliminates it for immigration purposes); accord, Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[72] See Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999)(en banc).