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C.A. Declines to Read Unwritten Rules Into Statute Permitting Withdrawal of Plea
Opinion Says Section Does Not Act as Bar to Refiling Criminal Charges Even Where Accused Previously Successfully Expunged Record Following Completion of Probationary Term
By a MetNews Staff Writer
A defendant who pled guilty to two felonies, successfully petitioned the court to dismiss the case against him after he completed probation, and then filed a motion to withdraw his plea—under a statute permitting the request if the defendant did not understand the potential immigration consequences—is not entitled to avoid having the original charges reinstated in light of the unique procedural history, the Sixth District Court of Appeal has held.
Petitioning for relief from reinstatement was Cristian Martinez who, on June 10, 2009, pled no contest to inflicting corporal injury on the mother of his child and unlawful sexual intercourse with a minor, in addition to a misdemeanor charge. In exchange for his plea, the prosecutor agreed to dismiss a sentencing enhancement.
The imposition of his sentence was suspended and he was placed on formal probation for three years on the condition that he serve one year in county jail. In 2016, after completing probation, Martinez successfully moved to clear his record under Penal Code §1203.4, which provides:
“When a defendant has fulfilled the conditions of probation…, the defendant shall, …if they are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty…, the court shall thereupon dismiss the accusations or information against the defendant and…the defendant shall thereafter be released from all penalties and disabilities resulting from the offense….” In December 2021, he filed a motion to withdraw his guilty plea under Penal Code §1473.7(a)(1) which specifies that “[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence” if it 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.”
The petition was granted and the original information was ordered to be reinstated.
After the information was reinstated, Martinez filed a motion under §1473.7 for the dismissal of the charges. Santa Clara Superior Court Judge Jessica Delgado denied the motion, finding that the section does not allow for dismissal after a plea is set aside and saying that she would not “read into the statute something that is not there.”
Justice Charles Edward Wilson wrote the opinion, filed Thursday and published on the Court of Appeal website Friday, finding that the order denying the second §1473.7 motion is not appealable, but treating the purported appeal as a petition for writ of mandate. Denying relief, the opinion ordered the parties to proceed on the reinstated information.
Acting Presiding Justice Patricia Bamattre-Manoukian and Justice Adrienne Grover joined in the opinion. Wilson noted that §1473.7(f) provides that “[a]n order granting or denying the motion is appealable…as an order after judgment affecting the substantial rights of a party” but said that this “is not the order that Martinez is seeking to appeal.”
He explained:
“[Matinez’s] motion to set aside his plea and vacate his conviction pursuant to section 1473.7 was granted by the court on April 27, 2022 and Martinez, having obtained the relief he sought, is not appealing from that order. Instead, Martinez purports to appeal from the order denying his subsequent motion to dismiss the original charges, despite the fact that section 1473.7 provides no basis for granting that relief….”
Under these circumstances, he opined that “[s]ince Martinez has successfully vacated his conviction and withdrawn his plea, there is no longer a judgment in this case” and so “[t]he subsequent order denying his motion to dismiss the information is not an ‘order made after judgment’ and is thus not appealable.”
Having requested supplemental briefing on the issues presented, the court agreed with Martinez that it would be a waste of judicial resources to send the matter back to the trial court rather than exercising the discretion to reach the merits by treating the appeal as a petition for writ relief.
Not Statutory Remedy
The defendant argues that it would be inconsistent with the “intended purpose” of §1437 to allow for reinstatement of the original charges against a defendant who successfully moved to vacate their conviction under the section. Unpersuaded, Wilson wrote:
“Martinez’s construction of the statute, which relies almost entirely on his parsing of its legislative history, would require us to add language that does not exist, namely that a court, after granting a motion to vacate a conviction under section 1473.7, is further required to dismiss the charges underlying that (now-vacated) conviction. The statute does not say that and it is not appropriate for us to rewrite it so that it does. That power rests entirely with the Legislature, which has already provided specific directions as to what a court may do pursuant to section 1473.7, i.e., find a conviction legally invalid (or not) based on the statute’s criteria and, where that conviction arose from a plea, allow the moving party to withdraw that plea….Had the Legislature intended to mandate dismissal of the charges that led to the original plea or prohibit refiling of those charges under section 1473.7, it could have included such language in the statute.”
He continued:
“As explained above, the purpose of section 1473.7 is to provide those who lacked the sound legal advice necessary to ‘understand, defend against, or knowingly accept’ the collateral immigration consequences of their litigation options…an opportunity to remedy that prejudice by reconsidering those options with the benefit of the advice previously lacking….Construing the statute to require a court to dismiss pending charges goes well beyond the language of section 1473.7 and its limited purpose of protecting a defendant’s constitutional right to make informed decisions about their case, as opposed to immunizing them from the potential immigration consequences arising from their allegedly wrongful conduct.”
Earlier Expungement
Martinez alternatively argues that the expungement of his conviction under §1203.4 means that he was released from “all penalties and disabilities” resulting from that conviction, preventing the refiling of the original charges.
Saying that Section 1203.4 was never intended to remove all consequences from a defendant’s having been adjudged guilty of a crime, Wilson remarked:
“[W]hile section 1203.4 could potentially protect Martinez from being further punished for his crime(s), it would not and did not protect him from the ‘nonpenal restrictions’ that flow from a conviction, such as possible removal from the country….Assuming Martinez is ultimately convicted of a deportable offense, section 1203.4 affords him no relief from that consequence.”
He added:
“[T]he fact that Martinez successfully completed probation and obtained relief under section 1203.4 does not preclude the People from refiling the original charges now that he has withdrawn his plea pursuant to section 1473.7. We express no opinion on what sentence may be imposed below in the event Martinez is convicted on any refiled charges.”
The case is Martinez v. Superior Court (People), 2024 S.O.S. 3495.
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