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Granting of Motion to Withdraw Plea, Vacate Judgment Does Not Compel Dismissal—Court of Appeal
By a MetNews Staff Writer
The granting of a motion by a criminal defendant who is no longer in custody to withdraw a plea of “guilty” or “no contest” does not bar the prosecution from reinstating the original complaint and bringing the accused to trial, the Sixth District Court of Appeal has declared.
Although Eduardo Perez Villegas purported to appeal from the denial of his motion in the Santa Clara Superior Court for a dismissal of the 2016 complaint charging him with criminal threats with an enhancement based use of a knife, the opinion points out that the order is nonappealable, but the appeal was treated as a writ petition, and was denied. The opinion, filed Monday and not certified for publication, was authored by Justice Cynthia C. Lie.
She noted that a person convicted of a crime who is no longer in custody is ineligible for habeas corpus relief, but may file a motion under Penal Code §1473.7(a), as Villegas did. It authorizes “a motion to vacate a conviction or sentence for any of the following reasons: [¶] (1) The conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”
Judge William Monahan granted the motion, releasing Villegas from his no-contest plea and vacating the judgment, but rejected the defendant’s contention that once having so ruled, dismissal of the charges is obligatory. Agreeing with Monahan, Lie said:
“Section 1473.7 does not require the dismissal of the complaint….[N]othing in the statute mentions dismissal of the complaint….The interpretation urged here by Villegas would thus engraft onto the statute a remedy the Legislature did not provide.”
That conclusion, she pointed out, is in line with that reached last year by Div. Four of the First District Court of Appeal in People v. Vaca.
“This is not to say that dismissal will never be warranted under another law when a defendant is entitled to relief under section 1473.7, subdivision (a) or that the facts warranting section 1473.7 relief could not inform the case for dismissal,” Lie wrote. “But we agree with Vaca that section 1473.7 is not itself a dismissal provision.”
Villegas in 2016 was placed on formal probation for three years with a 60 days of jail time, to be spent on weekends through work. Lie did not rule out the prospect of adding to the sentence if defendant is retried and convicted, saying:
“[A]t this stage of the proceedings, whether the state may seek additional punishment is not before us—we are reviewing the denial of a dismissal order under section 1473.7. Double jeopardy concerns accordingly do not influence our interpretation of section 1473.7.”
The case is People v. Villegas, H050245.
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