Superior Court of California, Appellate Division, Fresno
APPEAL from a judgment of the Fresno Superior Court, Department 95, Nos. F98918404-5, F98914875-0, David Gottlieb, Judge.
HON. F. BRIAN ALVAREZ JUDGE
Twice convicted by plea of misdemeanor domestic-violence charges 14 years prior, appellant requested the trial court grant him relief under Penal Code section 1385. The trial court declined his request, ruling that it no longer had jurisdiction to act under the statute. Appellant now brings these appeals from the trial court’s orders denying his invitation to dismiss his misdemeanor convictions. We have consolidated his appeals for purposes of decision. We agree the trial court could not grant relief under section 1385, and we thus affirm.
Appellant pled guilty to one misdemeanor count of violating section 273.5 in 1998 (Case No. 2449) and no contest to one misdemeanor count of violating that same section in 1999 (Case No. 2448). He received suspended sentences of three years of probation for both offenses. Probation terms were never formally revoked and they expired on October 21, 2001, and January 20, 2002.
In 2011, appellant, a noncitizen, came to the attention of immigration authorities, who began detention proceedings. On September 17, 2013 appellant filed a “Motion to Dismiss Pursuant to Penal Code section 1385” in each Superior Court case. In the motions he contended that the trial court had the authority pursuant to section 1385 to dismiss his convictions for violating section 273.5 in the interests of justice. The motions were heard together on November 21, 2013, and denied by the trial court on the grounds it lacked jurisdiction to act under section 1385 as requested.
In these appeals, appellant contends that because section 1385 contains no limiting language, nor does an enactment of the legislature extinguish the jurisdiction of the Superior Court over his misdemeanor cases, the trial court retained jurisdiction to vacate his guilty pleas and convictions subsequent to rendering judgment and imposing sentence. Thus, in his view, the trial court’s failure to exercise discretion under section 1385 is an abuse of discretion, and the appropriate relief on appeal is to remand the matter “in order that the trial court may exercise its discretion to determine whether underlying Penal Code section 273.5 charge[s] should be dismissed in the interest of justice.” We reject this contention.
A. Standard of Review
The question before us is whether a trial court retains the ability to dismiss a conviction under section 1385 after it has become final. While we apply an abuse of discretion standard to a review a trial court's decision to deny relief under section 1385 (People v. Carmony (2004) 33 Cal.4th 367, 374-376), this application is premised on the court’s ability to grant relief under the statute. Thus, when the trial court’s decision is based on a ruling that it lacked post-judgment jurisdiction under a statute to grant the relief requested, the question involves statutory interpretation, a question of law which we review de novo. (In re Martinez (2012) 210 Cal.App.4th 800, 809.)
B. The Trial Court Properly Denied Relief Under Section 1385
Section 1385, subdivision (a), in relevant part, provides “[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Section 1385 contemplates only dismissal of criminal actions, or a part thereof (People v. Hernandez (2000) 22 Cal.4th 512, 521-522, 523, 524), but not sentencing factors or historical facts (In re Varnell (2003) 30 Cal.4th 1132, 1137). While the statute has potentially broad application, the California ...