PEOPLE v. CHAVEZAppellant’s Petition for ReviewCal.December 14, 2016$238929 flO IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, LORENZO CHAVEZ, Defendant and Petitioner. SUPREME COURT FILED DEC 14 2016 S Jorge Navarrete Clerk CO74138 Deputy (Yolo County Superior Court No.04-2140) PETITION FOR REVIEW After A Published Decision by the Court of Appeal, Third Appellate District Filed November3, 2016 MATTHEWA.SIROKA (State Bar No. 233050) 1000 Brannan Street, Suite 400 San Francisco, CA 94103 Telephone: (415) 522-1105 Attorney for Petitioner IN THE SUPREME COURTOF THESTATEOF CALIFORNIA PEOPLEOF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. S C074138 (Yolo County Superior Court No.04-2140) LORENZO CHAVEZ, DefendantandPetitioner. PETITION FOR REVIEW After A Published Decision by the Court of Appeal, Third Appellate District Filed November3, 2016 MATTHEWA. SIROKA (State Bar No. 233050) 1000 Brannan Street, Suite 400 San Francisco, CA 94103 Telephone: (415) 522-1105 Attorney for Petitioner TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......... 2.0 cece eee cece e ee eeees iv PETITION FOR REVIEW ......-...-00 0c eee e reece teen eens 1 ISSUES PRESENTED FOR REVIEW (Rule 8.500) ......----++++-- 2 INTRODUCTION .... 2.2ccctenet teenies 2 WHY REVIEW SHOULD BE GRANTED.......--. 00s e eee eeeee 4 STATEMENTOF THE CASE AND FACTS......--.- eee eee eee 8 ARGUMENT......... 2c cece cece eee n ene n ete ne eee enne 8 COURTSRETAIN DISMISSAL AUTHORITY OUTSIDE THE CONTEXT OF SECTION 1203.4 TO ACT IN THE INTERESTS OF JUSTICE FOR REMEDIAL RATHER THAN REHABILITATIVE PURPOSES......... 0. sees eee eee eee 8 A. Background ....... 6: eee cece reece eee e nett e renee ees 8 B. Section 1385 and Section 1203.4 are Addressed to Different Purposes and Courts Can Retain Their Authority Under Section 1385 Without Undermining Section 1203.4 .....-...9 C. Thereis Insufficient Evidence of Legislative Intent to Limit Courts’ Authority Under Section 1203.4 ........---..5-+- 11 1. The amendatoryhistory of section 1203.4 is in not adequateto infer legislative intentto limit the scopeof section 1385 1.1... cee eee eee teeta 12 2. People v. Tanner (1979) 24 Cal.3d 514 does not support the Court of Appeal’s conclusion .........-...+6+-- 15 TABLE OF CONTENTS(cont.) Page D. The Court of Appeal’s Conclusion Conflicts with Other Published Authority and is Not Supported by Case Law ... 18 E. The Court of Appeal’s Limitation of Authority Under Section 1385is Inconsistent With the Legislature’s Directive that Such Authority Be Exercised “In the Interests of Justice” ........ 25 CONCLUSION 3.... 0... e cece eect een een e eee e nee 29 CERTIFICATE OF WORD COUNT........ 20. ee eee eee e eee eee 30 APPENDIX A - OPINION BELOW .............-- ee ee eee ee eee 31 il TABLE OF AUTHORITIES CASES Herrera-Inirio v. INS (1st Cir. 2000) 208 F.3d 299 coc cceueteaeceenecennsssees+ 10 In re Disbarment ofHerron (1933) 217 Cal. 400 .......-. eee eee eee eee eee eee 20, 21 In re Pfeiffer (1968) 264 Cal.App.2d 470 ...... 6 cece eee eee eee ete n eee 25 In re Phillips (1941) 17 Cal.2d 55 1.1... cee eee eee cent tee eee nes 22 In re Stankewitz (1985) 40 Cal.3d 391 2.0.6.6 ccc eee eee teenies 27 Lockyer v. Shamrock Foods Company (2000) 24 Cal.4th 415 .....-.. esses ee eee 8 MatterofPickering (BIA 2003) 23 I. and Northern Dec. 621. .......+.+++-++05- 10 Matter ofRoldan (BIA 1999) 22 I. and Northern Dec. 512... 66. +0. sere renee es 10 Nunez-Reyes v. Holder (9th Cir. 2011) 646 F.3d 684 ........ 0. cree e eee ene eee 10 People v. Alvarez (1996) 49 Cal.App.4th 679 «0.0.0... cece eee cece ene ees 10 People v. Banks (1959) 53 Cal.2d 370.1... 6.6 cece ec eee eee eee eens 22, 27 People v. Barraza (1994) 30 Cal.App.4th 114 «1... 0... cee eee terre ee eee 23, 24 People v. Beasley (1970) 5 Cal.App.3d 617 ..... 6. eee cence eee eee e ener e es 11 People v. Field (1995) 31 Cal.App.4th 1778 .........oe eee vubeeeeenttnee 6,9 People v. Gilbert (1969) 1 Cal. 3d 475 1... e eee eee cece eee eterna 21 People v. Kim (2009) 45 Cal.4th 1078 «1.0.26... eee e cece e eee tence 3,25, 27, 28 People v. McAlonan (1972) 22 Cal.App.3d 982 ..... 6... cere renee enter neces 11 ili People v. McLernon (2009) 174 Cal.App.4th 569. ..... 6s eee eee eee eee ences 10 People v. Mgebrov (2008) 166 Cal.App.4th 579 «1.0... eee eee cece e eens 10 People v. Morrison (1984) 162 Cal.App.3d 995. ... 0... se eee eee e eter eee eens 9 People v. Orabuena (2004) 116 Cal.App.4th 84 .......... 22s eee eee 4,5, 18, 19, 20 People v. Orin (1975) 13 Cal.3d 937 «1.2... eee e cece eee eect eee ees 10 People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127 .......-.-.e+e ee eee 25 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ......-.- see eee eee 11, 26 People v. Superior Court ofMarin County (1968) 69 Cal.2d 491 .......-..+--++- 10 People v. Tanner (1979) 24 Cal.3d 514.0... .. 0. ccc eee eee 1,11, 15, 16,17, 18 People v. Thomas (1992) 4 Cal.4th 206 ...... 6.6 eee cence cent nen e nee ees 11 People v. Thorbourn (2004) 121 Cal.App.4th 1083 . 1.6.6.6 eee cere ee eee ees 25 People v. Vasquez (2001) 25 Cal.4th 1225.0... 6. cece cece e ete eeneeees 10 People v. Villa (2009) 45 Cal.Ath 1063 ....... 66sec e eee eee eee t cee es 26 Stephens v. Toomey (1959) 51 Cal.2d 864 .... 2... cece eee entre tee ete eee es 22 STATUTES Cal. Rules of Court, rule 8.500 (b)(1) 00... eeecece eet tenets 4 Penal Code, sections 1203 ........ cc cece cee terrence ener ene eees 27 Penal Code section 1203.4 2.0... cece cece cece eee ee eee eee eeees passim Penal Code Sections 1385.1... 2... cece cece eee e ence ee eneees passim iv IN THE SUPREME COURTOF THESTATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, S Plaintiff and Respondent, C074138 V. (Yolo County Superior Court No. 04-2140) LORENZO CHAVEZ, Defendant and Petitioner. PETITION FOR REVIEW TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner Lorenzo Chavezpetitions this Court for review following the published decision of the Court of Appeal, Third Appellate District, filed on November3, 2016, affirming thetrial court’s determination that it lacked authority under Penal Code section 1385 to dismiss Mr. Chavez’s case.’ 1 A copyof the Court of Appeal’s opinion is attached as Appendix A. Citations to the opinion are indicated by “Op.” followed by the page number.Statutory references are to the Penal Codeunless otherwise designated. Nopetition for rehearing wasfiled. (Rule of Court 8.504, subd.(b)(3).) ISSUE PRESENTED FOR REVIEW(Rule 8.500) Whether Penal Codesection 1203.4 eliminates a court’s discretion under Penal Code section 1385 to dismiss a matter in the interests of justice after a grant of probation? INTRODUCTION Lorenzo Chavez wasbroughtto the United States when he was only a month old. Hehaslived here ever since. In his early twenties he became involved with drugs, and wasarrested for agreeing to sell methamphetamineto a police officer, even though he had nonarcotics to sell and never attempted to consummatethesale. Heplead nocontest in 2005 to offering to sell methamphetamine (Health & Safety Code § 11379), unawarethat this conviction would permanently prevent him from obtaining any kind of immigration relief, and potentially force him to leave his entire family and return to Mexico with his young son. Mr. Chavez successfully overcame his addiction, completed his probation, and has been a productive and valued memberofhis community. Because he is no longer in custody, habeas corpusis not available, and pursuantto this Court’s decision in People v. Kim (2009) 45 Cal.4th 1078, 1108, the writ of error coram nobis is not available to him. Thus,in orderto obtain relief from the dire immigration consequencesofhis conviction, he asked the Superior Court to exercise its discretion under section 1385 to dismiss his case in furtherance of justice, as the remedy available undersection 1203.4 would notrelieve his immigration consequences. Thetrial court determined thatit lacked authority under section 1385 to dismiss the matter, holding that section 1203.4 was the exclusive meansfor a probationer to obtain post-conviction relief. The Court of Appeal, in its published decision, affirmed the order, and in so doingfailed to appreciate the important differences betweenthe statutory schemes,. and unnecessarily limited courts’ powerundersection 1385. Furthermore, the opinion below directly conflicts with other published authority on the subject. For the reasons discussed herein, review should be grantedto resolve the split of opinion and determine whatthe scope of a court’s authority is under section 1385 when a defendanthas been granted probation. WHYREVIEW SHOULDBE GRANTED This case presents an importantissueoffirst impression about the scope of a court’s authority undersection 1385 and therefore review is necessaryto settle an important questionof law. (Cal. Rules of Court, rule 8.500 (b)(1).) In addition, the opinion below cannot be reconciled with other published authority, People v. Orabuena (2004) 116 Cal.App.4th 84, and therefore review is necessary to secure uniformity of decision. (Cal. Rules of Court, rule 8.500 (b)(1).) The question here is whether under Penal Code section 1385 a trial court hasthe discretion to dismiss a criminal matter where no judgmenthas been imposed dueto a grant of probation, and the defendanthas not soughtrelief under Penal Code section 1203.4. This is a matterof state-wide significance and oneof grave importance to many Californians for whom dismissal under section 1385 maybe their only hope to avoid the severe collateral consequencesofanill-advised plea bargain. In its published opinion, the Court of Appeal concludedthat section 1203.4 effectively overrides the court's broad discretion undersection 1385 and provides the sole meansfor dismissal ofa criminal action where probation has been granted. For reasons discussedlater, the opinion below cannot be reconciled with People v. Orabuena (2004) 116 Cal.App.4th 84, which held that a court can use its authority under section 1385 to dismiss a case during the course of probation. As discussed below, because the opinion below fails to meaningfully engage withthe rationale of Orabuena,it lacks logical coherence and fails to providetrial courts any meaningful guidance asto the relationship between a grantof probation, section 1203.4 relief eligibility and a court’s authority undersection 1385. The opinion belowis flawed for a numberof other reasons. First, it fails to appreciate or even acknowledgethevastly different purposesand conditionsforrelief under section 1203.4 versus section 1385. Section 1203.4 is explicitly rehabilitative, and mandates relief for defendants who have metcertain conditions. (People v. - Field (1995) 31 Cal.App.4th 1778, 1787.) Section 1385, h owever, is remedial and reserved to the broad discretion of the courts to serve the interests of justice in individual cases; indeed, section 1385 may not be used in a rehabilitative fashion. (People v. McAlonan (197 2) 22 Cal.App.3d 982, 987.) The Court of Appeal believes that two such statutory schemes cannot exist simultaneously, and therefore elec ted to abrogate the more generalonein favor of the more specific one. Theopinion ignores the important differences between the two statutory schemes to conclude that permitting section 1385 relief to co-exist with section 1203.4 would nullify the later. (Op.at p. 12.) Such a position too easily dispenses with the broad grantof discretion undersection 1385 by ignoring the fundamentally different roles the two statutory schemesplay in ourjustice system. The opinion below also mistakenly concludesthat the history of section 1203.4 supports the conclusion that Legislature sought to limit courts’ power under section 1385. In essence, the opinion below relied on the history of the increasingly narrow rangeof benefits afforded by relief under section 1203.4 as evidencethatit is intendedto be the sole form of post-conviction relief for probationers. But again, this conclusionfails to recognize the important distinction that section 1203.4 creates a rehabilitative system designed to motivate good performance on probation, whereassection 1385 is remedial and designedto serve the interests of justice outside the rehabilitative system. It is uncontroversial to say that section 1203.4 provides the sole meansof relief for a probation within the rehabilitative frameworkof a grant of probation. That truth is not in tension with the importantpolicy of preserving the courts’ historically broad discretion to dismiss a case whentheinterests of justice so require. Finally, the Court of Appealtried extract supportforits conclusion from a numberof this Court's opinions in waysthat misconstrue those opinions. Mostof the authority on whichit relied nevereven consideredthe role of section 1385. This published opinion drawsbroad and unsupported conclusions from a number of this Court’s opinions, and review should be granted to address these conclusions, as well. STATEMENTOF THE CASE AND FACTS Petitioner adopts the statement of the case and facts as set forth in the opinion below. (Op. at pp. 1-3.) ARGUMENT COURTS RETAIN DISMISSAL AUTHORITY OUTSIDE THE CONTEXT OF PENAL CODESECTION1203.4 TO ACT IN THE INTERESTS OF JUSTICE FOR REMEDIAL RATHER THAN REHABILITATIVE PURPOSES The resolution of the issue here requiresan analysisof the relationship of section 1385 and 1203.4, a determination of whether the statutes can co-exist and whetherthere is sufficient evidence of legislative intent to override the broad authority of section 1385. A. Legal Standard The interpretation of a statute is a question of law subject to independent review. (People ex. rel. Lockyerv. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) B. Penal Code Sections 1385 and 1203.4 are Addressed to Different Purposes and Courts Can Retain Their Authority UnderSection 1385 Without Undermining Section 1203.4 Subject to certain exceptions, section 1203.4 is a mandatory grantof relief upon proofof rehabilitation through successful completion of probation. (People v. Field (1995) 31 Cal.App.4th 1778, 1787.) “A grantof relief under section 1203.4 is intended to reward an individual who successfully completes probation by mitigating someof the consequencesof his conviction ... .” (People v. Field, supra, 31 Cal.App.4th at p. 1787.) The court does havethe discretion to granttherelief “in any other case” so long as there wasa grantof probation. (People v. Morrison (1984) 162 Cal.App.3d 995.)? Thusfor example, section 1203.4 relief is proper even where the probationer has violated probation but nonetheless demonstrated genuine 2 Althougheventhatdiscretion is limited, as the statute specifically precludesrelief for probationers convicted of certain sex offenses and other enumerated offenses. (§ 1385, subd.(b).) 9 rehabilitation. (People v. McLernon (2009) 174 Cal.App.4th 569.)° In other words, the powerof relief under section 1203.4 is fundamentally a part of a rehabilitative inducement to successfully complete probation. By contrast, the power undersection 1385 is a n equitable powerto servethe interests of justice; a notion so broad that, as this Court has recognized, a court may enter a dismissal eve n after a jury’s guilty verdict. (People v. Superior Court ofMarin County (1968) 69 Cal.2d 491, 501; People v. Orin (1975) 13 Cal.3d 937, 946.) A dismissal undersection 1385 is fundamentally anact in equity, whichrequires “consideration both of the constitutionalrights of th e 3 “The statute does not purport to render the conviction a legal nullity.” (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584, quoting People v. Vasquez (2001) 25 Cal.4th 1225, 1230.) Indeed, the rehabilitative natureof section 1203.4 is what makesit ineffective for granting relief from immigration consequences in mostcases. (Nunez-Reyes v. Holder (9th Cir. 2011) 646 F.3d 684 (en banc); Matter of Roldan (BIA 1999)22 I. & N. Dec. 512; Matter ofPickering (BIA 200 3) 23 I. & N. Dec. 621.) By contrast, a section 1385 dismissal voids the conviction for all purposes. (People v. Alvarez (1996) 49 Cal.App.4th 679, 691-692.) As such, a section 1385 dismissalis far more likely to have ameliorative effects on the immigration consequencesof a conviction. (E.g., Matter of Pickering (BIA 2003) 23 I. & N. Dec. 62 1; Herrera-Inirio v. INS (1st Cir. 2000) 208 F.3d 299, 306.) 10 defendant, andthe interests of society represented by the People.” (People v. Beasley (1970) 5 Cal.App.3d 617, 636.) Althoughthere are manyvalid reasonsfor a judge to exercise the powerof dismissal undersection 1385, the one thingit is not is a tool of rehabilitation. (People v. McAlonan (1972) 22 Cal.App.3d 982, 987.) Thus, given the fundamental differences betweenthe statutes, section 1203.4 cannot be seen to infringe on the scope of a court’s discretion under section 1385. C. ‘Thereis Insufficient Evidence of Legislative Intent to Limit Courts’ Authority Under Section 1203.4 Courts will not “interpret a statute as eliminating courts’ powerundersection 1385 ‘absenta clear legislative direction to the contrary.’” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 518, quoting People v. Thomas (1992) 4 Cal.4th 206, 210.) Yet, the opinion below concludedthatthe Legislature did intend to limit _ courts’ authority undersection 1385 by reference to the amendatory history and by analogy to this Court’s decision in People v. Tanner (1979) 24 Cal.3d 514. Neitherofthis lines of argumentare evidence 11 ne id e of clearlegislative directive to limit courts’ authority undersection 1385. 1. The amendatory history of section 1203.4 is in not adequateto infer legislative intent to limit the scope of section 1385 The opinion below relied primarily on the history the amendatoryhistory of section 1203.4 to justify its conclusion that the Legislature intendedsection 1203.4 to divest courts of authority undersection 1385. (Op.at pp. 7-10.) What that history showsis an intent to create a comprehensiverehabilitative system that would offer specific, but limited, relief to probationers. Andnormally, that wouldbe the proper avenue ofrelief for a probationer to follow. However,the existence of this system is notitself sufficient evidence that the Legislature soughteliminate the court’s power undersection 1385 to providerelief when considerations of equity so require. The Court of Appeal’s argument regarding the amendatory history of section 1203.4 is that the Legislature could not have intended to preserve powerto dismiss under 1385 whenit passed 12 the original section 1203.4, because that had statute same impactas section 1385 - rendering the conviction a legal nullity. (Op. at p. 9) If there continued to be an identity between section 1203.4 and section 1385, then the Court of Appeal’s conclusion would have some weight. But then, the argument continues, because the Legislature continually narrowed the scopeof relief section 1203.4 provided,this is further evidence that section 1385 has been completely eclipsed by section 1203.4. (Op. at pp. 11-12.) Here the Court of Appeal’s logic worksagainstitself. The very history the opinion below relies on demonstrates that section 1203.4 occupies a completely different space in ourjustice system than doessection 1385. The Court of Appealfelt that because the Legislature has demonstrated an ongoing concern to narrow and limit the relief available to probationersas part of a rehabilitative process, that eclipsed the possibility of a court using a different equitable powerto grant a defendantrelief whentheinterests of justice so required. Yet there is nothing inconsistent about having a detailed scheme for promoting rehabilitation by granting a form of 13 post-conviction relief and preservinga court’s authority to do justic e for reasons unconnected to rehabilitation. Furthermore, even if the original passageof section 1203.4 eclipsed section 1385, when the Legislature beganlimiting the effec t of section 1203.4, such limitations musthaveactedto restore court' s authority under section 1385. Thatis, if the fact that the original section 1203.4 provided the samerelief as that available under section 1385 was whatlimited courts’ power undersecti on 1385, then oncethe natureofthe relief was diminished, that limitation should have been removed. Indeed, once completerelief was foreclosed by the amendmentsto section 1203.4 and therefore the two statutes no longer afforded the same kindofrelief, in order to preserve courts’ equitable powers,it is necessary to concludethat authority under section 1385 wasrestored. In addition, the Court of Appeal offered no evidence of legislative intent (other than the amendments themselves) to demonstrate the Legislature was considering the impact on section 1385 when it made the various amendments to section 120 3.4. 14 2. People v. Tanner (1979) 24 Cal.3d 514 does not support the Court of Appeal’s conclusion The Court of Appeal relied on this Court’s decision in People v. Tanner (1979) 24 Cal.3d 514 (“Tanner”) to argue by analogy that section 1203.4 limits a court’s authority under 1385. But Tanneris inapposite. In Tanner, the question involved section 1203.06, which explicitly limited the powerof a court to grant to probation to anyone whopersonally uses a firearm during the commission of robbery. This Court considered whethersection 1385 permitted a court to strike a firearm allegation and thereby avoid the mandatory prohibition in section 1203.06. This Court concluded that there was clear statutory intent to apply section 1203.06in all circumstances, and that therefore the allegation could not be dismissed under section 1385: Our conclusion is supported by pertinent and timely expression of legislative intent existing when section 1203.06 was enacted. The Legislative Counsel's summary of the 1975 enactmentstates thattrial court discretion to grant probation in unusualcasesis eliminated so that 15 “probation and suspension of sentence would be denied, without any exception in unusualcasesin theinterests of justice, to any person whousesa firearm during the commission of variousfelonies, including ... robbery ....” (Leg. Counsel's Dig. of Sen. Bill No. 278, 1 Stats. 1975 (Reg. Sess.) SummaryDig., ch. 1004, p. 262; italics added.) This statementis consistent with a staff memorandum prepared by the Senate Committee on the Judiciary stating that Senate Bill No. 278 (in which the 1975 amendmentsto §§ 1203 and 1203.06 wereintroduced), “Prohibits, without exception, the granting of probation to persons who have carried or used firearms in connection with certain crimes, for which probation may be obtained underexisting law in unusualcases in the interests of justice.” (Italics added.) Finally, there exists the executive statement of Governor Brown issued by pressrelease in which he explained the effects of the legislation. Hestated: “By signing thisbill, I wantto send a clear message to every person in this state that using a gun in the commission of a serious crime meansa stiff prison sentence. Whatever the circumstances, howevereloquentthe lawyer, judges will no longer have discretion to grant probation eventofirst offenders.” (Governor's Press Release No. 284 (Sept. 23, 1975), italics added.) (Tanner, supra, 24 Cal.3dat p. 520.) 16 Thus the Tanner Court was faced with clear evidence that use of section 1385 to dismiss the allegation would directly contravene legislative intent. Asdiscussed above, no such clear indication appearsin the legislative history here. The Court of Appeal nonetheless drawsa numberof erroneous conclusions from Tanner. The opinion below seizes on the fact that “like the probation statute in Tanner[citation] , the original section 1203.4 contained mandatory terms.” (Op.at p. 8.) But this is a category error. The mandatory language in Tanner stated that probation “shall not be granted to” specified persons. (Tanner, supra, 24 Cal.3d at p. 528, fn. 4, citing then-extent section 1203.06.) Here, the mandatory language the Court of Appeal relies on makesgranting relief under section 1203.4 mandatory. In Tanner, the mandatory prohibition on grants of probation was seen to override a court’s ability to strike the allegation to grant probation. * Currentsection 1203.4 also contains mandatory provisions, “defendant...shall be permitted to withdrawhis or herplea...,”“court shall set aside the verdict of guilty.” (§ 1203.4, subd.(a)(1).) 17 That is a completely different species of issue than whether the requirementthata court grant one kindofrelief to qualified individuals in certain circumstances overrides a court's ability to providea different kind ofrelief in other circumstances. The opinion belowalso drawsanotherinapt analogy from Tanner. According to the Court of Appeal, becausesection 1203.4 relates to the “limited powerof dismissal for purposes of probation” it necessarily overrides section 1385 becauseofits greater specificity. (Op.at p. 8, queting Tanner, supra, 24 Cal.3dat p. 521.) But this simply defines the issue in a way that requires the conclusion. The dismissalat issue here was not “for purposes of probation,” indeed it was precisely outside the scopeofthe rehabilitative schemeofprobation. The Court of Appealfails to explain how the mere grantof probation operates to override a court's authority under section 1385. D. The Court of Appeal’s Conclusion Conflicts with Other Published Authority and is Not Supported by Case Law The opinion below conflicts with the result and reasoning in In People v. Orabuena (2004) 116 Cal.App.4th 84 (“Orabuena’”). In 18 Orabuena, the Sixth District Court of Appeal held the Superior Court had discretion, undersection 1385, to dismiss a misdemeanor conviction as to which defendant had already been placed on probation,in the interests of justice for the purpose of qualifying the defendantfor drug treatment under Proposition 36. After careful analysis, it concludedthat a grant of probation,as opposed to imposition of judgment, did not bar use of section 1385 to dismiss an action after sentencing in the interests ofjustice. (Id., at p. 96.) The court relied on the broad powerofsection 1385 and the absence of any Legislative directive limiting it in these circumstances. (Id., at p. 95.) Moreover, the Orabuena court noted the fact the defendant was already on probation did not preclude the exercise of section 1385 authority, so long as judgment had not been imposed. (Id., at pp. 96- 98.) Here, the Court of Appeal distinguished Orabuena onthebasis that the defendantin that case maystill have been on probation and wasthusyetnoteligible for relief under section 1203.4. (Op.atp. 12.) The necessary corollary of that conclusion (although the court 19 did notexplicitly state this) is that once a defendant successfully completes probation, courts lose their power undersection 1385 to dismiss. But this conclusion leads to absurd results. It cannot be eligibility for section 1203.4 relief that divests a court of its authority under section 1385, because section 1203.4 itself allowsfor relief in the court’s discretion, even if the defendanthas not successfully completed probation. Under the Court of Appeal’s theory, a defendant whosuccessfully completes probation divests a courtof its authority undersection 1385, but when a defendantviolates his probation andis thusnoteligible, a court retains its authority under section 1385, unless the court then exercisesits discretion to grant section 1203.4 notwithstanding the defendant's violation of ' probation. This highly irrational result showsthatthe opinion below cannotbe squared with the result in Orabuena. Furthermore, the cases the Court of Appealcited in supportof its conclusionare not authority such a conclusion. The Court of Appealrelied on In re Disbarment ofHerron (1933) 217 Cal. 400, an attorney disbarment case in which the court wasconsidering the 20 effects of thetrial court’s actions in the underlying criminal proceeding that precipitated disbarment. (Op.at p. 9.) In that 1933 case, the trial court had set aside the conviction one month after the expiration of the probation condition. This Court foundthatthetrial court’s action wasexplicitly authorized by then-extant section 1203(4) and therefore the attorney had beenrelieved of the disabilities from the conviction and thus disbarment was not warranted. The opinion below observes that Herron never mentions sections 1385, and therefore this is authority for the proposition that section 1385 did not apply. (Op.at p. 10.) Of course, cases are not authority for propositions not considered (People v. Gilbert (1969) 1 Cal. 3d 475, 482, fn. 7), and the argumentspecifically made to the Herron court wasthat section 1203(4) authorized thetrial court's action. (Herron, supra, 217 Cal. at p. 403.) There was noreason for the Herron courtto considerthe relationship of section 1385, and it did not do so. The opinion below repeats the error of relying on this Court's opinions for propositions not considered therein by alsociting as 21 authority In re Phillips (1941) 17 Cal.2d 55, Pe ople v. Banks (1959) 53 Cal.2d 370 and Stephens v. Toomey (1959) 51 Cal .2d 864. (Op. at pp. 10-11.) Yet none of those cases had occasion to c onsiderthe roleof section 1385. Phillips simply held that operation of section 1203.4 relief did not act to reverse the automatic order of disbarmentthat was entered whenthe attorney in the underlying case was sentenced for a crime of moralturpitude. (In re Phillips, sup ra, Cal.2d at pp. 56- 59.) In People v. Banks, this Court considered the case of defendant whoclaimed he was wrongfully convicted of be ing a felon in possession because he had completed probation on the underlying case and wasentitled to section 1203.4 relief, but did not avail himself of it. (Banks, supra, 53 Cal.2d at pp. 375-3 77.) The Banks Court hadnooccasion to considerthe role of se ction 1385 in the proceedings, and the matter was notraised. Fina lly, Stephensv. Toomey involved a writ of mandate to compelthe registrar of voters to permit the petitioner to vote; this Court held t he matter was not ripe because the petitioner was still on probation . (Stephensv. Toomey, supra, 51 Cal.2d at p. 875.) Thus noneof these cases 22 provides authority for the Court of Appeal’s conclusion. The opinion belowalso claims authority from the case of People v. Barraza (1994) 30 Cal.App.4th 114 (Op.at p. 11.), but Barraza is inapposite. In that case, the prosecution and defense sought to enterinto a stipulated reversal of judgment(and a subsequent new plea) in order to provide some immigration relief to the defendant, and petitioned the Court of Appealfor the stipulated reversal. The Court of Appeal simply held that unlikein civil matters, criminal judgmentsare not subject to stipulated reversals, particularly where they involve post-judgmentplea bargains. (Barraza, supra, 30 Cal.App.4th at pp. 119-120.) The court seized on this languagein the Barraza opinion: Wedo not know whethertherelief from deportation appellant seeks could have been provided under Penal Codesection 1203.4 and deem it inappropriate to make that inquiry because appellant has not soughtsuchrelief. Section 1203.4 is pertinent to our analysis only because it is the only postconviction relief from the consequences of a valid criminal conviction available to a defendant underourlaw. 23 (People v. Barraza, supra, 30 Cal.App.4th at pp . 120-121.) However, the Barraza court immediatel y followed that statement with a footnote that acknowledged: Althoughthediscretion of a trial judge to di smiss a criminal action under Penal Code section 138 5 in the interests of justice “may be exercised at any ti me during thetrial, including after a jury verdictof guilt y” [citation], this statute has never been held to authorize dismissal of an action after the imposition of s entence and rendition of judgment.[Citation.] In any event , section 1385 can be invoked only bya trial judge or magistr ate on his or her own motion orthatof the prosecuting attorney ,it does not confer any right of relief upon the defendant . [Citation.] (Id. at p. 121, fn. 8 [citations omitted].) Thus, the opinion below is unsupported by a ny authority, and indeed conflicts with at least one publishedca se. 24 ES. The Court of Appeal’s Limitation of Authority Under Section 1385 is Inconsistent With the Legislature’s Directive that Such Authority Be Exercised “In the Interests of Justice” Section 1385 authorizes the court to dismiss “in furtherance of justice.” (§ 1385, subd.(a).) “Furtherance ofjustice’ as usedin that section requires consideration of the constitutional rights of the defendantandtheinterests of society. Courts are empowered to fashion a remedy for deprivationof a constitutional right to suit the needsof the case.” (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 144,citing In re Pfeiffer (1968) 264 Cal.App.2d 470, 477; see also People v. Orin (1975) 13 Cal.3d 937, 945; People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1088.) It is apparent that the Legislature did not (nor could it have) contemplate and delineate every conceivable circumstance that would warrant exercise of the court's discretionary powers. Rather, it entrusted the judiciary with a broad grantof authority precisely to ensure thatjust results could be achieved andsociety’s interests served. The history of section 1385 militates towardsfinding that its scope extendsto a dismissal in 25 Mr. Chavez’s circumstance. (See, e.g., People v. Superio r Court (Romero) (1996) 13 Cal.4th 497, 518 (recounting broa d judicial interpretations of section 1385).) Moreover, to deprive courtsof this authority wouldbe to potentially further injustice. There are numeroussituat ions beyond Mr. Chavez’s where the exercise of section 1385 discret ion would be the only avenueofrelief to achieve a just result. For e xample, someone, whoafter completing his probation learned that he had received ineffective assistance of counsel cannotfile a p etition fora writ of habeas corpus, because he is no longer “in custo dy.” (People v. Villa (2009) 45 Cal.4th 1063, 1068.) Yet to allow his conviction to stand would unjust. The broad scope ofsection 1385’s a uthority mustbe preserved sothat it may act as the remedyoflas t resort to achieve substantivejustice, especially where procedural bars prevent sucha result. Finally, the fact that Mr. Chavez was no longer on proba tion does notbarexercise of discretion undersection 1385. A s this Court has observed, “[t]he powersof the [trial] court, over t he defendant 26 and the cause, whenit retains jurisdiction as provided by Penal Code, sections 1203 through 1203.4, ... are well nigh plenary in character.” (People v. Banks (1959) 53 Cal.2d 370, 384.) Once the court has granted probation,so long as the court does not render judgment, the court retainsjurisdiction over the action. (Id.) Indeed, this mustbeso or section 1203.4 relief would be impossible. Relief underthat statute requires that the period of probation has expired. Yet, the courtstill has authority to order the pleawithdrawn and the matter dismissed. So it is with section 1385. Section 1385 contains no time limitation in its language, nor has any court construedit to be subject to a timelimitation, except the Court of Appealin this case. Petitioner’s interpretation is consistent with the Legislature’s grantof broad equitable powers to courts, powers whichare not boundby the procedural requirements of writ proceedings. (Cf. People v. Kim (2009) 45 Cal.4th 1078, 1096-1097 (writ of coram nobis requires inter alia, due diligence and exhaustion of other remedies); In re Stankewitz (1985) 40 Cal.3d 391 (writ of habeas corpussubjectto 27 a timeliness requirement).) The limitations on writ proceedings are guided by considerationsoffinality, as well as protection against unscrupulouslitigants who mayabuse the process of the court, amongother things. (People v. Kim, supra, 45 Cal.4th at p. 1097.) By contrast, the authority vested in the courts by section 1385 is guided by the overarching consideration of the “furtherance of justice.” As that endis left to the sounddiscretion of the courts, there is no need for the procedural fencing typical of writs or statutory remedies directed towardsa specific goal. 28 CONCLUSION The Legislature has determinedthat there are circumstances in whichtheexercise of judicial discretion is necessary to ensure substantivejustice. That determination is embodiedin the grant of authority in section 1385. In the absenceof specific legislative direction to the contrary, the Court of Appeal should not be permitted to unduly limit this incredibly important power. For the reasonsstated herein, the Court should grant review. Dated: December 12, 2016 Respectfully submitted, Attorney for Petitioner 29 a a : CERTIFICATE OF WORD COUNT Counselfor herebycertifies thatthis brief consists of 5,024 words(excludingtables, proof of service, and this certificate), according to the word count of the computer word-processing program. (California Rules of Court, rule 8.Sad1). til A CeA. SIROKA Dated: December12, 2016 30 APPENDIX A OPINION BELOW 31 Filed 11/3/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) THE PEOPLE, Plaintiff and Respondent, C074138 v. (Super. Ct. No. CRF042140) LORENZO CHAVEZ, Defendant and Appellant. APPEAL from ajudgmentofthe Superior Court of Yolo County, Stephen L. Mock, Judge. Affirmed. Matthew A.Siroka, Retained Counsel for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, _ Supervising Deputy Attorney General, Robert C. Nash, Deputy Attorney General, for Plaintiff and Respondent. Defendant Lorenzo Chavez pleaded no contest to charges that he offeredto sell a controlled substance and failed to appear. Thetrial court suspended imposition of sentence and placed defendant on probation for fouryears. After defendant successfully completed his probation in 2009, hefiled a motion pursuant to Penal Codesection 1385,! asking the trial court to dismiss the action in the 1 Undesignated statutory references are to the Penal Code. interests ofjustice based on ineffective assistance of counsel and assertedlegal errors. The trial court concluded that because the motion was brought pursuantto section 1385 rather than section 1203.4, it did not have authority after probation ended to grant the requested relief. The trial court denied the motion to dismis s. The People contend the denial was not an appealable order. De fendantasserts the order is appealable andthetrial court erred in ruling that it lacked authority to dismiss under section 1385. We conclude the order is appealable andthetrial court did not err. Section 1203.4 is the exclusive methodfora trial court to dismiss the convicti on of a defendant who has successfully completed probation. Wewill affirm the judgment. BACKGROUND Defendant negotiated, but did not show up to complete, the s ale of methamphetamineto an undercover law enforcement agent. T he Peopleinitiated a criminal case against defendantandthetrial court released hi m on his own recognizance. Defendantfailed to appear. In May 2005, defendant pleadedno contest to offering to sell a controlled substance (Health & Saf. Code, § 11379, sub d. (a) -- count 1) andfailure to: - appear (§ 1320, subd. (b)-- count 2). Thetrial court suspend ed imposition of sentence and placed defendant on probation for four years. In 2009 defendant successfully completed his probation. Yearsl ater, in March 2013, he filed a motion pursuantto section 1385, asking the tria l court to dismiss the action in the interests ofjustice. Among otherthings, defenda nt claimed he received ineffective assistance of counselin entering his plea. He said that because of various legalerrors he entered a guilty plea without knowing the immigr ation consequences. Defendantargued a trial court has authority under section 1385 to dismiss a case af ter probationis ordered. The People countered that although defendantraised significant concerns, he used the wrong procedure to request relief. The People argued that because probation had been terminated,the trial court did not have authority to grant section 1385relief. Thetrial court said it did not find any case holding that section 1385 authorizes a trial court to grant a motion to dismiss after probation has expired. Accordingtothetrial court, such authority comes undersection 1203.4 rather than section 1385, but defendant did not bring his motion pursuant to section 1203.4. Thetrial court denied the motion to dismiss. | DISCUSSION Asa threshold matter, the People claim the trial court denial was not an appealable order because defendant did not appeal or challenge the negotiated plea he entered in 2005. Wedisagree. Exceptin circumstancesnot applicable here, a defendant may appeal from final judgmentof conviction and from any order made after judgment, affecting the substantial rights of the party. (§ 1237, subds. (a), (b).) Where a defendant is granted probation and the probationary period expires without revocation, the order granting probation is a “final judgment” within the meaning of section 1237, subdivision (a). (People v. Chandler (1988) 203 Cal.App.3d 782, 787.) An order denying defendantreliefunder section 1203.4 is an appealable order made after judgmentaffecting the substantial rights of the defendant. (§ 1237, subd. (b); Chandler, supra, 203 Cal.App.3d at p. 787; People v. Johnson (1955) 134 Cal.App.2d 140, 142-143 Johnson) [in a case involving a denial of a section 1203.4 motion,a different panel ofthis court stated, “if the probationary period expires without revocation, there can then be no formal judgment, and the order granting probation underthe provisions of Penal Code, section 1237, must be consideredas the final judgment insofar as any order made thereafter ‘affecting the substantial rights of the party’ are concerned.” ]; see also People v. Feyrer (2010) 48 Cal.4th 426, 433, fn. 5; People v. Totari (2002) 28 Cal.4th 876, 886-887.) Turning to defendant's contention, he argues section 1203.4 does no t limit thetrial court’s powerto dismiss a case pursuant to section 1385 after the defendant successfully completes probation. Wereview de novo issues involving the interpretation ofstatutes. (Peoplev. Mgebrov(2008) 166 Cal.App.4th 579, 585 (Mgebrov).) “ ‘Thefu ndamental purpose of statutory construction is to ascertain the intent of the lawmakers so asto effectuate the purpose ofthe law. [Citations.] In order to determinethis intent, w e begin by examining the languageof the statute. [Citations] But “li]t is a settled prin ciple of statutory interpretation that languageofa statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did no t intend.” [Citations.] Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” [Citation.] Finally, we do not c onstrue statutes in isolati on, but rather read every statute “with reference to the e ntire schemeof law of which it is part so that the whole may be harmonized and retain effectiveness.” [Citation.]’” (People v. Thomas (1992) 4 Cal.4th 206, 210 (Thomas ).) “TA] wide variety of factors may illuminate the legislative design, ‘ “such as context, the object in view, the evils to be remedied, the history of the time andoflegislation upon the same subject, public policy and contemporaneous construction.” ’ [Citations.]’ (Walters v. Weed (1988) 45 Cal.3d1, 10.) | Section 1203.4 applies to probationers whoseperiod of probation h as ended. (§ 1203.4, subd. (a)(1); People v. Morrison (1984) 162 Cal.App.3d 995, 997-998.) Thestatute allows a qualifying defendant, at any time after the term ination of the period of probation, to withdraw his or her plea of guilty or nolo contend ere and entera plea of not guilty. (§ 1203.4, subd. (a)(1).) If the defendant was con victed after a plea of not guilty, section 1203.4 requires the court to set aside the verdict of g uilty. (Jbid.) In either case, the court shall dismiss the accusationsor information against t he defendant. .(/bid.) The defendantis entitled to relief under section 1203.4 if (1) he or she hasfulfilled the 4 conditions of probation for the entire period of probation, (2) he or she has been dischargedprior to the termination of the period of probation,or (3) thetrial court, in its discretion and in the interests ofjustice, determines that the defendant should be granted relief under section 1203.4, and (4) the defendantis not then serving a sentence for any offense,is not on probation for any offense, or is not charged with the commission of any offense. ([bid.) Dismissal of the accusations or information under section 1203.4 releases the defendant from all penalties and disabilities resulting from the conviction, except as provided in section 1203.4. (§ 1203.4, subd. (a)(1).) Suchrelief is intended to reward a defendant who successfully completed probation by mitigating some of the consequences of the conviction. (Mgebrov, supra, 166 Cal.App.4th at p. 584.) However, dismissal under section 1203.4 does not erase a conviction; it “merely frees the convicted felon from certain ‘penalties and disabilities’ of acriminal or like nature.” (Adams v. County ofSacramento (1991) 235 Cal.App.3d 872, 877-878.) As we will explain later in this opinion, there are numerousexceptionsto the relief authorized by section 1203.4. (§ 1203.4, subds. (a), (b); People v. Frawley (2000) 82 Cal.App.4th 784, 790-792.) Section 1385 is different. Pursuant to that section, a judge or magistrate may, on his or her own motion or upon application of the prosecuting attorney, and in furtherance ofjustice, order an action dismissed.” (§ 1385.) A dismissal pursuant to section 1385 2 In People v. Fuentes (2016) 1 Cal.5th 218, the California Supreme Court recently held that section 186.22, subdivision (g) does not eliminate atrial court’ s discretion under section 1385 to dismiss a section 186.22 sentencing enhancementallegation for a gang- related offense. (Fuentes, at pp. 221-222.) Section 186.22, subdivision (g) provides: “Notwithstanding any other law, the court may strike the additional punishmentfor the enhancements provided in this section . . . where the interests ofjustice would best be served... .” The Supreme Court said atria court's dismissal authority is broader under section 1385. (Fuentes, at pp. 224-225.) Whereas a trial court can dismiss a sentencing enhancementallegation under section 1385, atrial court’ s discretion under section 186.22, subdivision (g)is limited to striking the additional punishmentfor the enhancement. (Fuentes, at pp. 224-225.) The distinctionis significant because an may be proper before, during, or after trial. (People v. Hatch (2000) 22 Cal.4th 260, 268.) Unlike a dismissal under section 1203.4, “[t]he effect of adismissal under section 1385 is to wipe the slate clean as if the defendant never suffered the prior conviction in the initial instance. In other words, ‘[t]he defendant stands as if he had never been prosecuted for the charged offense. (People v. Simpson (19 44) 66 Cal.App.2d 319, 329.) (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136 [(Flores)].)” (People v. Barro (2001) 93 Cal.App.4th 62, 67.) A trial court’s discretionary power to dismiss an action under section 13 85 has been recognized by statute since 1850. (Stats. 1850, ch. 119, § 629, p. 323.) With slight changes, the provision became section 1385 whenthe Penal Code was enacted in 1872.5 (Williams, supra, 30 Cal.3d at p. 478.) enhancement finding may impact a defendantin a future case even if th e punishmentfor the enhancementis struck. (Id. at p. 225.) The Supreme Court did not find in the language of section 186.22 the clear legislative direction necessary to abr ogate a trial court’s discretion under section 1385. (Fuentes, at p. 231.) The conclu sion in this case is different. Here, sections 1203.4 and 1385 both authorize the di smissal of an action. (§§ 1203.4 subd.(a)(1), 1385, subd. (a).) As we will explain,the origin al section 1203.4 also had the samerestorative effect as section 1385. And an examinatio n of the language and history of the two statutes demonstrates clear legislative intent to e liminate section 1385 discretion in cases where section 1203.4 applies. 3 “In 1851, the phrase ‘after indictment’ was changed to ‘or indictment. ’ (Stats. 1851, ch. 29, § 597, p. 279.) The 1872 version read, ‘The Court may, either of its own motion or upon the application of the District Attorney, and in furtherance ofju stice, order an action or indictment to be dismissed. The reasonsofthe dismissal must be set forth in an order entered upon the minutes.’ In 1951, ‘Court’ became ‘court,’ ‘District Attorney’ was changed to ‘ prosecuting attorney,’ the phrase ‘or indictment’ was dropped, and the third sentence was added. (Stats. 1951, ch. 1674, § 141, p. 3857.) In 1980, ‘judge or magistrate’ was substituted for‘court.’ (Stats. 1980, ch. 938, § 7, p. 296 8.)” (People v. Williams (1981) 30 Cal.3d 470, 478, fn. 5 (Williams), superseded by sta tute on another point as noted in Raven v. Deukmejian (1990) 52 Cal.3d 336, 348 .) In 1986,the existing provision became subdivision (a) and subdivision (b) was addedto res trict the authority ofthetrial court to strike prior convictions ofserious felonies when impo sing an , enhancement under section 667. (People v. Valencia (1989) 207 Cal.A pp.3d 1042, 1045.) In 2000, subdivision (c) was added to give the court authority t o “strike the 6 The judicial authority to dismiss a criminal action or allegation in furtherance of justice is statutory and may be withdrawn bythe Legislature. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 518.) A court may exercise such authority unless, in a given context, the Legislature has clearly evidenced a contrary intent. (Williams, supra, 30 Cal.3d at p. 482; Thomas, supra, 4 Cal.4th at p. 211.) Courts will not interpret anotherstatute as eliminating the powerto dismiss under section 1385 unless there is clear legislative direction to that effect. (Romero, at p. 518.) But the Legislature can provide such clear direction without expressly referring to section 1385. (Romero, at p. 518.) __ People v. Tanner(1979) 24 Cal.3d 514, 518 (Tanner) shows how the Legislature can provide clear direction without mentioning section 1385. That case involved section 1203.06, a statute specifying, among otherthings, that probation shall not be granted to a person who personally uses a firearm during the commission of a robbery. (§ 1203.06, subd. (a)(1)(B).) The California Supreme Court considered whethera trial court could use section 1385 to strike a firearm allegation and thereby avoid the mandatory prohibition in section 1203.06. (Tanner, supra, 24 Cal.3d at p. 518.) The Court said no, the mandatory provisions of section 1203.06 could not be avoided by employing section 1385. (Tanner, at p. 519.) To hold otherwise would nullify section 1203.06 and restore prior law allowinga trial court to grant probation anytime it deemed such a grant appropriate in the interests ofjustice. (Tanner, at pp. 519-520.) The Court observedthat “whereas section 1385 is generalin nature, relating to the broad scope of dismissal, section 1203.06 is specific, relating to the limited powerofdismissal for purposes of probation -- the very matterat issue.” (Tanner, at p. 521.) In addition, section 1203.06 is “the later enactment, adopted by the Legislature in response to the particular problem at additional punishment” for an enhancement provided the court “has the authority pursuant to subdivision(a) to strike or dismiss [such] enhancement.” (Stats. 2000, ch. 690, § 3.) hand. A specific provision relating to a particular subject will govern a general p rovision, even thoughthe general provision standing alone would be broad enough to inclu de the subject to which the specific provision relates.” (Tanner, at p. 521; See People v. Rodriguez (1986) 42 Cal.3d 1005, 1019 [confirming continuing validity of Tan ner]) Like section 1203.06, what is now section 1203.4 was enacted after section 1385 and is more specific. (Stats. 1909, ch. 232, § 1, p. 359) Section 1203.4 was paragr aph 5 to the original section 1203, a statute directed at the subject of probation. (Stats. 1905, ch. 166, § 1, pp. 162-164; Stats. 1909, ch. 232, § 1, p. 359.) In contrast, sect ion 1385 is a generalstatute “relating to the broad scope of dismissal.” (Tanner, supra, 2 4 Cal.3d at p. 521.) Section 1385 does notreference probation. Section 1203.4 relates to “the limited power of dismissal for purposes of probation -- the very matter at issue.” (Tanner, at p. 521.) Section 1203.06 involves a particular prohibition not present in section 1203.4. Butlike the probation statute in Tanner, supra, 24 Cal.3d 514, the original sectio n 1203.4 contained mandatory terms. (Stats. 1909, ch. 232, § 1, p. 359; see also Peo ple v. Field (1995) 31 Cal.App.4th 1778, 1788 [probationer whofulfills the conditions of prob ation for the entire period of probation or whohas been discharged before the terminati on of the probationary term is entitled as a matter of right to expungement of the convict ion]; Johnson, supra, 134 Cal.App.2d at p. 144 [interpreting the word“shall” in sec tion 1203.4 as mandatory].) It required dismissal of the accusation or information whenthe conditions forrelief were present. (Stats. 1909, ch. 232, § 1, p. 359.)4 4 The original version of section 1203.4 provided,“Every defendant whohas ful filled the conditionsofhis probation for the entire period thereof, or who shall have bee n discharged from probationprior to the termination of the periodthereof, shall at any time prior to the expiration of the maximum period of punishmentfor the offense of w hich he has been convicted, dating from said discharge from probation orsaid terminatio n of said period of probation, be permitted by the court to withdraw his plea of guilty and en ter a plea of notguilty; or, if he has been convictedafter a plea of not guilty, the court shall set 8 Moreover, dismissal of an accusation or information underthe original section 1203.4 had the same effect as a dismissal under section 1385. (People v. Mackey (1922) 58 Cal.App. 123, 130-131; Flores, supra, 214 Cal.App.3d at p. 136.) A defendant was released “from all penalties and disabilities resulting from the offense or crime of which he [or she] has been convicted.” (Stats. 1909, ch. 232, § 1, p. 359.) The Legislature intended the original version of section 1203.4 “to wipe out absolutely the entire proceeding in question in a given case and to place the defendantin the position which he would have occupiedin all respects as a citizen if no accusation or information had ever been presented against him. Suchis the legal effect of the dismissal of a criminal charge before conviction, and . . . the lawmaking body intended, by [paragraph 5 of] section 1203, that the same effect should attend a dismissal after conviction.” (Mackey, supra, 58 Cal.App.at pp. 130-131; see Jn re Disbarment ofHerron (1933) 217 Cal. 400 (Herron) [dismissal of action under then section 1203 released the defendant from all penalties and disabilities resulting from the conviction], disapproved on anotherpointin In re Phillips (1941) 17 Cal.2d 55, 59-60.) The Legislature could not have intended to preserve the court’ s discretionary powerto dismiss under section 1385 when it mandated dismissalin a later-enacted statute with the samerestorative effect that specifically addressed the dismissal of accusations or an information against a successful probationer. (Thomas, supra, 4 Cal.4th at p. 213 [the Legislature intended to preclude exercise ofpower under section 1385 whenexercise of such powercould effectively negate a later-enacted and more specific statute]; Tanner, supra, 24 Cal.3d at pp. 519-520.) A contrary interpretation would nullify the original section 1203.4. “Under well-established rules of construction, any inconsistency between aside the verdict of guilty and the court shall thereupon dismiss the accusation or information against such defendant whoshall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.” (Stats. 1909, ch. 232, § 1, p. 359.) the two provisions would be resolved by applying the more specific provisio n.” (Thomas, supra, 4 Cal.4th at p. 213.) The 1971 amendmentofsection 1203.4 supports our conclusion. That year the Legislature expandedthe class of defendants who might obtain section 1 203.4 relief to include those whodid not successfully complete probation but who should b e granted relief in the court’ s discretion andin the interests ofjustice. (Stats. 1971, ch. 333, § 1, p. 667; People v. McLernon (2009) 174 Cal.App.4th 569, 576-577; see Mgebro v, supra, 166 Cal.App.4th at p. 587 [the 1971 amendment gave the courts considerablefl exibility in their application of the statute].) It would not have been necessary for the Legislature to amend section 1203.4 to authorize a court to dismiss “in its discretion and the interests of justice” if courts had retained authority to dismiss “in furtherance of justi ce” under section 1385 after the Legislature enacted the original section 1203.4. Other California Supreme Court cases also support our conclusion that section 1203.4, and not section 1385, governs dismissal in a case where the de fendantis granted probation and seeks dismissal after the expiration of the probationary period. Herron, supra, 217 Cal. 400, involved a proceeding to disbar an attorney. One issue b efore the Supreme Court was whethera trial court couldset aside a conviction and dism iss an action after expiration of the probation period. (/d. at p. 405.) The Supreme Court ruled that the powerto dismiss an action in that circumstance was foundin the orig inal version of section 1203.4. (Herron,at p. 405; see also People v. Behrmann (1949) 34 Cal.2d 459, 462, fn. 1 [citing section 1203.4 and stating that the court’ s power to vaca te the judgmentand dismiss the causeafter probation is fulfilled depends on the st atutory procedure].) The Supreme Court did not say section 1385 gave thetrial court the power to dismiss after a defendant completed probation. Likewise, in In re Phillips, supra, 17 Cal.2d 55, another attorney disbar mentcase, the Supreme Court once again acknowledgedthat section 1203.4 established the authority ofa trial court to set aside the verdict after satisfactory completion of probati on. (In re 10 Phillips, supra, 17 Cal.2d at p. 59.) Moreover, in Banks, supra, 53 Cal.2d 370, the Court again referenced section 1203.4 as the statutory basis for dismissing a case when a defendant successfully completed probation. (Banks, at pp. 384-388, 391; see also Stephens, supra, 51 Cal.2d at pp. 870-871.) The Court of Appeal in People v. Barraza (1994) 30 Cal.App.4th 114 reached a similar conclusion, stating that section 1203.4 is the only statutory avenue available for an adult convicted of a felony and placed on probation rather than sentencedto prison. (Barraza, at p. 120; see also Comment, Expungementin California: Legislative Neglect andJudicial Abuse ofthe Statutory Mitigation ofFelony Convictions (1977) 12 U.S.F. L.Rev. 155, 166 (Comment) [“With the single and rare exception of pardon, section 1203.4 is the only statutory enactment that presumptively relieves the legal and collateral disabilities of a felony conviction.”].) In addition, the amendatory history of section 1203.4 discloses a continuing legislative intent, based on public safety and other considerations, to limit acourt’s authority (like it might otherwise have under section 1385) to wipe a probationer’ s slate clean or even free the probationer from certain penalties and disabilities. (People v. Ansell (2001) 25 Cal.4th 868, 879-880; Tanner, supra, 24 Cal.3d at p. 519; Comment, supra, 12 U.S.F. L.Rev. at pp.167-172.) Starting in 1927, the Legislature narrowed the ameliorative effect of a dismissal under section 1203.4 so that section 1203.4 no longer renders the prior conviction a legal nullity. (Compare § 1203.4 with Stats. 1909, ch. 232, § 1, p. 359; see also People v. Vasquez (2001) 25 Cal.4th 1225, 1230-1231.) The 1927 amendment provided that “in any subsequent prosecution of such defendant for any other offense such prior conviction may be pleaded and proved andshall have the same effect as if probation had not been granted or the accusation or information dismissed.” (Stats. 1927, ch. 770, § 1, p. 1496.) That amendmentstripped the defendantofall the privileges and rights restored underthe original statute, and providedthat if the defendant committed a second offense, he or she forfeited all the remaining rights and benefits 11 restored whenthe information was dismissed. (People v. Majado (1937) 22 Cal. App.2d 323, 325.) The 1961 amendmentto section 1203.4 provides that dismissal underthe statut e does not permit a person to own,possess,or have in his or her custody or control any firearm capable of being concealed upon theperson, and does not prevent convic tion under section 12021. (Stats. 1961, ch. 1735, § 1, p. 3744.) Pursuant to the 1978 amendment, dismissal under section 1203.4 doesnotaffect the revocation or susp ension of the defendant’ s privilege to drive a motor vehicle. (Stats. 1978, ch. 911, § 1, p. 28 70; Veh. Code, § 13555.) The 1979 and 1989 amendments indicate dismissal under the statute doesnotrelieve the defendantofthe obligation to disclose the prior convic tion in responseto any direct question contained in any questionnaire or application for pu blic office or for licensure by anystate or local agency,or for contracting with the Cal ifornia State Lottery. (Stats. 1979, ch. 199,§ 6,p. 444; Stats. 1989, ch. 917, § 11, p. 3190.) The 2005 amendmentprovides that, except as provided in section 290.5, dismissal und erthe statute does not relieve a person of the duty to register as a sex offender under sec tion 290. (Stats. 2005, ch. 704, § 3, p. 5629.) Under the 2008 amendment, dismissa l does not permit a personto hold public office who is otherwise barred. (Stats. 2008, ch. 9 4, § 1.) Andconsistent with the foregoing amendments, cases have held that sectio n 1203.4 does not bar use ofa prior conviction in licensee disciplinary proceedings. (See, e.g. , Meyer v. Board ofMedical Examiners (1949) 34 Cal.2d 62,67; Copeland v. Department of Alcoholic Beverage Control (1966) 241 Cal.App.2d 186, 188.) Asthis review of the amendatory history demonstrates, it would nullify the restrictions imposed by th e Legislature and interpreted by the courts if we were to construe the statutes as p reserving atrial court’s discretion under section 1385 to completely erase a probationer’ s conviction. The cases cited by defendant in support of his position are inapposite. There is no indication in People v. Orabuena (2004) 116 Cal.App.4th 84 that the defendant h ad 12 completed probation and waseligible for relief under section 1203.4. (Orabuena,at p. 89.) That decision does not discuss dismissal under section 1203.4. Moreover, the defendantin People v. Kim (2012) 212 Cal.App.4th 117 was sentencedto three years in prison and soughtrelief under section 1385 years after he was released on parole. (Kim, at pp. 119-121.) He wasnot granted probation on the conviction he invited the trial court to dismiss pursuantto section 1385. (Kim, at pp. 119-121.) The court in Kim did not discuss dismissal under section 1203.4. In cases involving a request for dismissal of accusations or an information against a defendantafter the period of probation has ended, the Legislature has provided clear legislative direction that the courts do not have authority under section 1385 to grant the requestedrelief. Section 1203.4 is the exclusive method by whicha court can dismiss the conviction of a defendant who has successfully completed probation. Accordingly, the trial court properly concluded it was without discretion to dismiss defendant’ s conviction under section 1385. . DISPOSITION The judgmentis affirmed. /S/ MAURO,J. Weconcur: /S/ RAYE,P.J. /S/ BUTZ,J. 13 DECLARATION OF SERVICE BY MAIL Re: People v. Lorenzo Chavez Court of Appeal Case No. C074138 I, the undersigned, declare that I am over18 years of age and nota party to the within cause. I am employedin the County of San Francisco,State of California. My business addressis 1000 BrannanStreet, Suite 400, San Francisco, CA 94103. On December12, 2016, I have caused to be served a true copy of the attached Petition for Review (except for copies of the opinion [Rule 8.500(e)(f)] on eachofthe following, by placing same in an envelope(s) addressed asfollows: KamalaD. Harris Yolo County District Attorney Attorney General 301 SecondStreet P.O. Box 944255 Woodland, CA 95695 Sacramento, CA 94244-2550 Attorney for Respondent Via e-filing Yolo County Superior Court Third District Court of Appeal . Attn. Hon. Stephen L. Mock Via e-filing 725 Court Street Wooldand, CA 95695 Lorenzo Chavez (petitioner)(via email) Each said envelope was sealed and the postage thereonfully prepaid. Iam _familiar with this office’s practice of collection and processing correspondence for mailing with the United States Postal Service. Underthat practice each envelope would be deposited with the United States Postal Service in San Francisco, California, on that same day in the ordinary course of business. I declare underpenalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed on December12, 2016, at Sana en Francisco, California. —— S a k
