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Los Angeles Superior Court Appellate Department:
Withdrawing Plea After Dismissal Is an Impossibility
Where a Defendant Successfully Completes Judicial Diversion, a Plea No Longer Exists, Judge Kumar Writes, So There’s Nothing to Nullify
By a MetNews Staff Writer
A motion to set aside a no-contest plea on the ground that the movant did not grasp the potential immigration consequences was properly denied, the Los Angeles Superior Court’s Appellate Department has held, where a man, charged with two misdemeanor marijuana offenses, entered the Los Angeles Deferral of Sentencing Pilot Program and, after one year, having complied with the terms of the diversion, had the case dismissed.
The decision affirms an order by Los Angeles Superior Court Judge Spurgeon E. Smith denying Ilia Kuzmichey’s motion pursuant to Penal Code §1473.7. That section may be invoked on the ground that a “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.”
Appellate Department member Sanjay T. Kumar wrote:
“Defendant’s successful completion of the Sentence Deferral Program nullified his plea well before he brought his section 1473.7 motion. This left no plea or conviction for which section 1473.7 could provide relief.”
He elaborated:
“The threshold question in deciding the propriety of the trial court’s ruling is whether defendant had a conviction or sentence when he made his motion. Defendant was never sentenced so we turn to whether he sustained a conviction within the meaning of section 1473.7, subdivision (a). Under well-settled law, defendant sustained a conviction when the trial court accepted and entered his plea of no contest. Nonetheless, section 1473.7 relief was inapplicable because, at the time the motion was litigated, defendant’s plea (or ‘conviction’) no longer existed. In other words, there was no conviction to ‘vacate.’ ”
Kumar said the only time that a conviction or sentence, that was wiped out following judicial diversion, may be taken brought up and taken into account is where the defendant applies for employment as a peace officer. This means, he remarked, that “[f]or all intents and purposes,” the dismissal of a case following successful completion of judicial diversion “renders the conviction a complete nullity.”
The Los Angeles program is authorized by Penal Code §1001.94 et seq.
Kumar’s opinion was filed Oct. 28 and certified for publication by the Appellate Department two days later. On Nov. 20, Div. Four of the Court of Appeal for this district found that transfer of the case to itself was unnecessary and the opinion was publicly posted on Thursday.
The case is People v. Kuzmichey, 2024 S.O.S. 3709.
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