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United States of America v. Jose Jesus Pacheco Banda

August 31, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE JESUS PACHECO BANDA, DEFENDANT.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

O

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT

[Dkt. No. 26]

Presently before the court is defendant Jose Jesus PachecoBanda's Motion to Dismiss Indictment. Having considered the submissions of the parties and heard oral argument, the court grants the motion and adopts the following order.

I. Background

cc: all the parties on a J&C

In 2003, Defendants was charged with one count of possession for sale of a controlled substance, namely, methamphetamine, in violation of California Health and Safety Code Section 11378, one count of unlawful possession of cocaine base for purpose of sale, in violation of Health and Safety Code Section 11351.5, and one count of possession of marijuana for sale, in violation of Health and Safety Code Section 11359. (Chargig Complaint, Mot. Ex. O). After initially pleading not guilty, Defendant withdrew his plea and, according to the minute order of the change of plea hearing, pled nolo contedere (no contest) to "a violation of Section 11378 H&S in Count 01." (Minute Order, Mot. Ex. Q.) The minute order further stated that Defendant made his plea pursuant to People v. West. (Id.) According to the abstract of judgment, Defendant was convicted of one count of "Poss Cont Substance for Sale" in violation of "HS 11378." (Abstract of Judgment, Mot. Ex. P.) Neither the minute order nor the abstract of judgment make any reference to a particular controlled substance. At the plea colloquy, the following exchange took place:

The Court: September 16 in possession of a controlled substance, methamphetamine or - - that's possession for sale?

[The Government]: Sale.

The Court: Which count do you want? [Defense Counsel]: One.

The Court: Possession [for] sale of methamphetamine, in violation of section 11378 of the health and safety code, a felony.

Defendant: No contest.

The Court: You understand no contest is the same thing ...


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