California Court of Appeals, Third District, Sacramento
APPEAL from a judgment of the Superior Court of Sacramento County No. 11F00681, John P. Winn, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marcos Haro appeals from the judgment entered following his plea of no contest to the crime of stalking (Pen. Code, § 646.9, subd. (a)) and admission to having a prior juvenile adjudication for robbery, a serious felony within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subd. (a)-(d); 667, subd. (b)-(i)). Prior to the plea, the trial court denied defendant’s motion to dismiss the strike allegation based on the fact that the delinquency petition supporting the allegation was dismissed by the juvenile court pursuant to Welfare and Institutions Code, section 782. This juvenile adjudication was used to double his sentence for the stalking conviction.
On appeal, defendant renews his argument that the dismissal under section 782 of the petition underlying his robbery adjudication precludes the use of that adjudication as a strike under the three strikes law. We agree. As we explain, section 782 “is a general dismissal statute” that is similar in its operation to Penal Code section 1385. (Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 232-233 [186 Cal.Rptr. 870] (Derek L.).) “[D]ismissal under [Penal Code] section 1385 of the charge underlying a prior conviction operates, as a matter of law, to erase the prior conviction as if the defendant had never suffered the conviction in the initial instance.” (People v. Barro (2001) 93 Cal.App.4th 62, 66 [112 Cal.Rptr.2d 797] (Barro).) Thus, “dismissal under [Penal Code] section 1385 of the charge underlying a prior conviction which would otherwise qualify as a strike precludes the use of that prior conviction as a strike under the Three Strikes law.” (Id. at p. 64.) We conclude a dismissal under section 782 of the petition underlying a juvenile adjudication has the same effect. We therefore modify the judgment to dismiss the strike finding, vacate defendant’s four-year sentence, substitute the two-year middle term, and affirm the modified judgment.
As mentioned, defendant pled no contest to the crime of stalking and admitted the prior juvenile adjudication.
While he was a minor, defendant committed a robbery and was adjudicated a delinquent ward of the court. Following defendant’s successful completion of probation and termination of the wardship, the juvenile court dismissed the delinquency petition pursuant to section 782.
Prior to the plea, the trial court denied defendant’s motion to dismiss the strike allegation based on the fact that the ...