Tooby's California Post-Conviction Relief for Immigrants

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Seventh Circuit

POST CON RELIEF " SENTENCE " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO OBTAIN AND REVIEW DOCUMENTS RELIED ON TO IMPOSE FEDERAL SENTENCE
United States v. Aviles-Solarzano, 623 F.3d 470, 474 (7th Cir. Oct. 13, 2010) (The lawyer's failure . . . to obtain a copy of the indictment may conceivably have been a breach of her professional obligations to her client. United States v. Davenport, 986 F.2d 1047, 1048, 1049-50 (7th Cir.1993); cf. United States v. Tucker, 603 F.3d 260, 266-67 (4th Cir.2010). If so, and if the summary is inaccurate and the inaccuracy material, the defendant may have a claim of ineffective assistance of counsel that he can raise in a post-conviction proceeding.).

Ninth Circuit

POST CON RELIEF " CALIFORNIA " STATE REHABILITATIVE RELIEF -- REDUCTION FROM FELONY TO MISDEMEANOR AFTER EXPUNGEMENT HAS BEEN GRANTED
California courts have held it proper to grant post-conviction relief under Penal Code 17(b), reducing a felony to a misdemeanor, after an expungement has been granted under Penal Code 1203.4(a). In these cases, the essence of the rulings is that an expungement under 1203.4 does not wipe-out or expunge all of the disabilities flowing from the conviction. Therefore, the residual part of the conviction, that is the parts that remain after the expungement, can be reduced by the court in the interests of justice. Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140, 55 Cal.Rptr. 350. The court stated: The remaining question is whether the petitioner is barred from making application under Section 17, as amended, since (a) his probationary period has expired and (b) his record was expunged under Penal Code Section 1203.4. We think not. The word 'thereafter' in Penal Code Section 17 is not followed by a time limit, nor is it by express terms restricted to the probationary period. Moreover, in conferring upon the court the power to declare an offense to be a misdemeanor after it has suspended imposition of judgment or sentence, the Legislature evidently intended to enable the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated. Thus, the word 'thereafter' should not be unduly restricted to the probationary period for there is even greater reason for rewarding a convicted defendant who continues to demonstrate his rehabilitation long after his probation has expired, when he is no longer under the constant supervision of a probation officer. The expungement of the record under Section 1203.4 is also a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony. As stated by the court in In re Phillips, 17 Cal.2d 55, 61, 109 P.2d 344, 348, 132 A.L.R. 644: The power of the court to reward a convicted defendant who satisfactorily completes his period of probation by setting aside the verdict and dismissing the action operates to mitigate his punishment by restoring certain rights and removing certain disabilities. But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. Therefore, a conviction which has been expunged still exists for limited purposes, including, among others, evidentiary use at a later trial (People v. Banks, supra, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102) and the denial of the right to carry a cancelable weapon (Penal Code Section 1203.4). Consequently, petitioner should not be barred from pursuing a more suitable remedy, particularly where the final decision as to whether he is worthy rests within the sound discretion of the Superior Court. It is accordingly ordered that a peremptory writ of mandate issue requiring the Superior Court of the County of Sacramento to hear on the merits petitioner's motion to declare the offense of which he was convicted on July 22, 1960, to be a misdemeanor. More recently in People v. Wiedersperg (1975) 44 Cal.App.3d 550, 553-554, the issue appeared in an immigration context as part of a Writ of Coram Nobis. The First District Court of Appeals reasoned as follows: Did the trial court have jurisdiction to entertain the petition? The court held that because the guilty finding had been set aside, the not-guilty plea reinstated, and the information dismissed, all pursuant to section 1203.4 of the Penal Code, it did not have jurisdiction to vacate the judgment. The judge said, '. . . the complete information has been wiped out from under me. I have nothing before me right now. That has been expunged . . . I have no jurisdiction.' The question of the propriety of this ruling appears to be one of first impression. Section 1203.4 provides that in any case in which the defendant has successfully completed the period of probation he may be permitted by the court to withdraw his guilty plea, after which the court shall dismiss the information against him, 'and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted.' However, the expungement procedure does not eradicate the conviction. Even though the information has been dismissed, the 'EXPUNGED' CONVICTION MAY BE PLEADED AND PROVED in a subsequent case as a prior conviction. Also, the defendant may be convicted of possession of a firearm by a prior felon, based upon his expunged conviction. (Pen.Code, 1203.4, subd. (a).) Furthermore, the conviction exists for other purposes, such as suspending a physician's license for unprofessional conduct (Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 206 P.2d 1085); disbarring an attorney (In re Phillips (1941) 17 Cal.2d 55, 109 P.2d 344); res judicata in a civil action for nonsupport of a child (People v. Majado (1937) 22 Cal.App.2d 323, 70 P.2d 1015); and, as in the case at bench, deportation (8 U.S.C.A. s 1251, subd. (a) (11); Gonzalez de Lara v. United States (5th Cir. 1971) 439 F.2d 1316). Although the effect of expungement under section 1203.4 is to relieve the defendant of certain penalties and disabilities resulting from the conviction, it does not 'affect the fact that his guilt has been finally determined according to law.' (Meyer v. Board of Medical Examiners, supra, 34 Cal.2d at p. 65, 206 P.2d at p. 1087.) It follows, as urged by defendant herein, that because the judgment of conviction exists for some purposes after the granting of relief under section 1203.4, it should be subject to an attack by petition for writ of error coram nobis, since the writ directs its attack upon the lawfulness of the original proceeding and the judgment.

CAL POST CON " STATE REHABILITATIVE RELIEF " MANDATORY EXPUNGEMENT DESPITE FAILURE TO PAY RESTITUTION
People v. Seymour, ___ Cal. App. 4th ___, ___Cal.Rptr.3d ___, 2015 WL 5097243 (6th Dist. Aug. 31, 2015) (failure to pay restitution in full did not authorize the trial court to deny the relief otherwise mandated by Penal Code 1203.4(a), which provides for mandatory dismissal when a defendant has been "discharged [from probation] prior to the termination of the period of probation.").

SENTENCE " MISDEMEANOR " PENAL CODE 18.5 -- RETROACTIVITY SENTENCE " REDUCTION OF FELONY TO MISDEMEANOR " RETROACTIVITY OF NEW LEGISLATION AMELIORATING PUNISHMENT
People v. Babylon, 39 Cal.3d 719 (1985) (where a statute defining a criminal offense was amended while the case was on appeal, narrowing the scope of the offense so that the defendants could no longer be said to have violated the statute, and there was no savings clause allowing prosecution under the former statute, defendants case must be dismissed, even assuming defendants acts did violate the former statute). CPCN: 8.9 [one yr sent imposed] CPCN: 8.22A [maximum sentence imm con]

CAL POST CON " REDUCTION TO MISDEMEANOR " PENAL CODE 1170.18
People v. Diaz, ___ Cal.Rptr.3d ___, 2015 WL 4549209 (2d District, Division 4, Jul. 28, 2015) (request that court of appeal strike prison prior sentence enhancement, under Penal Code 667.5(b), is premature, as Penal Code 1170.18(f) requires filing of application to reduce felony conviction to misdemeanor under Prop. 47 in trial court).

POST CON RELIEF " FEDERAL " DOUBLE JEOPARDY VIOLATION AFTER VACATUR
United States v. Alvarez-Moreno, 657 F.3d 869 (9th Cir. Sept. 13, 2011) (reversing an order of the district court setting aside a conviction and ordering a new trial to cure a structural defect, under Federal Rules of Criminal Procedure, Rules 33 and 26.3, where the court's order constituted a colorable double jeopardy violation).

Lower Courts of Ninth Circuit

CAL POST CON " CAL CRIM DEF SENTENCE " LEGISLATION " AMENDMENT TO REDUCE SENTENCE CAN BE APPLIED RETROACTIVELY WHEREVER THE CONVICTION IS NOT YET FINAL
People v. Keith, 235 Cal.App.4th 983, ___, ___, 185 Cal.Rptr.3d 768 (2d Dist. Apr. 6, 2015) (statutory amendment which reduced punishment for possession of cocaine base for sale from maximum five years to maximum four years applied to defendant: We asked the parties to brief the question whether, under In re Estrada (1965) 63 Cal.2d 740, 745, 48 Cal.Rptr. 172, 408 P.2d 948, the reduced punishment for cocaine base possession for sale applies to Mr. Keith. The parties agree that it does. The 2014 amendment to Health and Safety Code section 11351.5 mitigates punishment, there is no savings clause and the judgment against Mr. Keith is not yet final. Therefore, the amended version of the statute applies to him. (In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948; People v. Hajek (2014) 58 Cal.4th 1144, 1195"1196, 171 Cal.Rptr.3d 234, 324 P.3d 88 [explaining Estrada analysis]; accord, People v. Nasalga (1996) 12 Cal.4th 784, 787, 789"798, 50 Cal.Rptr.2d 88, 910 P.2d 1380 [ 12022.6, subd. (b) enhancement].) Mr. Keith's sentence is reversed. Upon remittitur issuance, defendant is to be resentenced.).

CAL POST CON " GROUNDS " BREACH OF PLEA BARGAIN " PROSECUTION PETITION FOR MANDATE GRANTED WHERE COURT BREACHED PLEA BARGAIN TO THE DETRIMENT OF THE PROSECUTION
People v. Superior Court (Sanchez), 223 Cal.App.4th 567, 167 Cal.Rptr.3d 115 (3d Dist. Jan. 29, 2014) (granting prosecution petition for a writ of mandate challenging the trial court's order reforming a plea bargain detrimentally to the People by reducing the penalty to the term of imprisonment authorized by law for the crime, where the trial court exceeded its jurisdiction by reforming the negotiated plea to conform with the applicable law because the reformation denied the People the benefit of their bargain). Note: In this case the defendant agreed to a plea bargain for a sentence of 25 years to life without possibility of parole on one count of attempted murder. The judge found that the statutory punishment for this offense is a term of 25 years to life with the possibility of parole, which set the minimum term at only seven years. The trial judge accepted the plea though even though it benefitted the defendant and was detrimental to the People. The People filed a writ and the Court of Appeals (on instructions from the Supreme Court) reversed and ordered the plea agreement rescinded. If the defendant can establish that a non-deportable plea bargain was entered into, and that was the purpose of a material term of the agreement, but it is later discovered to be incorrect as a matter of law in that both sides were mistaken, then the agreement can be rescinded. Thanks to Michael Mehr.

CAL POST CON " SENTENCE " MOTION TO REDUCE FELONY TO MISDEMEANOR
People v. Willis, 222 Cal.App.4th 141, 165 Cal.Rptr.3d 600 (Dec. 16, 2013) (reversing trial court's extension of probation beyond three years from the beginning of his original probation period, where an earlier court treated defendant's offense as a misdemeanor, so the trial court lacked authority to extend his probation period beyond the three- year maximum probation period for misdemeanors).

Other

CAL CRIM DEF " SENTENCE " LEVEL OF OFFENSE " ORDERS GRANTING SUMMARY PROBATION OR A CONDITIONAL SENTENCE CONVERT FELONIES TO MISDEMEANORS BY OPERATION OF LAW
When court probation is granted in a felony case, that ruling automatically converts the felony to a misdemeanor. Penal Code 1203(a). When a conditional sentence is granted on a wobbler, the wobbler becomes a misdemeanor by operation of law. People v. Glee (2000) 82 Cal.App.4th 99, 105-106, People v. Taylor (2007) 157 Cal. App. 4th 433, 437. A grant of informal or summary probation is a "conditional sentence." (Pen. Code, 1203(a). (citations omitted). This is because such a disposition is available only in misdemeanor cases (that is, felony probation must be "formal"). Conditional sentences are authorized only in misdemeanor cases. (Pen. Code, 1203, subd. (a) ["It is the intent of the Legislature that both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors"]; 1203, subd. (d) ["If a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence"]; 1203b ["All courts shall have power to suspend the imposition or execution of a sentence and grant a conditional sentence in misdemeanor and infraction cases without referring such cases to the probation officer"].) Examples: sentences of: [1] 30 days in jail and formal probation does not make a felony a misdemeanor. [2] 30 days in jail with informal probation makes a felony a misdemeanor. [3] 30 days in jail with no probation makes a felony a misdemeanor. Thanks to Dan Mayfield and Paul Upton.

ARTICLE -- CAL POST CON " STATE REHABILITATIVE RELIEF " EXPUNGEMENTS THAT DO NOT COMPLETELY ERASE A CONVICTION FOR SOME PURPOSE DO NOT BLOCK LATER POST-CONVICTION RELIEF THAT DOES
If an Expungement Will Not Solve the Particular Immigration Problem, It is Still Possible to Pursue Other Post-Conviction Relief After an Expungement Has Been Obtained. Because expunged convictions continue to exist for some purposes, it is still possible, even after an expungement under Penal Code 1203.4(a) has been obtained, to attack the conviction through other post-conviction vehicles, such as a petition for a writ of coram nobis. (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755.) Even after expungement has been granted, the court still has jurisdiction to reduce an alternative felony misdemeanor to a misdemeanor under Penal Code 17. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 55 Cal.Rptr. 350.) The same should logically hold true for other forms of post-conviction relief, such as habeas corpus and the like. In Meyer v. Superior Court (1966) 247 Cal.App.2d 133, a Penal Code 17(b) motion to reduce a conviction from a felony to a misdemeanor was granted after relief under Penal Code 1203.4 had already been obtained. The defendant had been convicted of an alternative felony/misdemeanor (a wobbler) as a felony in 1960, and his conviction had subsequently been expunged pursuant to Penal Code 1203.4(a). He then tried to have his felony reduced to a misdemeanor pursuant to Penal Code 17(b), which had been modified in 1963 to include the reduction language and probation language that Penal Code 17(b)(3) contains today. The trial court refused, stating it had no jurisdiction because an expungement under Penal Code 1203.4(a) had already been granted. The appellate court ruled that the statute, while arguably not retroactive, was merely restating the power that a judge in California already possessed, and that a conviction may be reduced even well after a granting of a Penal Code 1203.4 expungement. Penal Code 17(b) states that a felony may be reduced to a misdemeanor "at any time." Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter. The statutes themselves contemplate that the courts fundamental jurisdiction continues, for they provide for the court's determination of certain matters after the end of the probationary term. (In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1.) Penal Code 17 provides, Where a court grants probation to a defendant without imposition of sentence upon conviction of a crime punishable in the discretion of the court by imprisonment in the state prison or imprisonment in the county jail, the court may at the time of granting probation, or, on application of defendant or probation officer thereafter, declare the offense to be a misdemeanor. The court's power and duty to pass on such an application for reduction of the offense to a misdemeanor continues after the end of the probationary term. (In re Griffin (1966) 67 Cal.2d 343, 347.) The court is empowered to change a crime from a felony to a misdemeanor, and it may do so after the probationary period has expired, and after the probationer has had his record expunged under Penal Code 1203.4. (Meyer v Superior Court (1966) 247 Cal.App.2d 133.) The expungement of the record under section 1203.4 is also a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony. [Citation.] . . . The power of the court to reward a convicted defendant who satisfactorily completes his period of probation by setting aside the verdict and dismissing the action operates to mitigate his punishment by restoring certain rights and removing certain disabilities. But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. . . . (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.) Although a conviction has been expunged, a person should not be barred from later pursuing a more suitable remedy, particularly where the final decision as to whether he is worthy rests within the sound discretion of the superior court. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.) Similarly, the court of appeal held that the expungement of a conviction under Penal Code 1210, after successful completion of Prop. 36 drug treatment, did not render her appeal from the judgment of conviction to be moot, holding she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality. (People v. Delong (2002) 101 Cal.App.4th 482, 124 Cal.Rptr.2d 293.)

CAL CRIM DEF " NATURE OF CONVICTION " RECORD OF CONVICTION "FACTUAL BASIS STIPULATION " PRACTICE ADVISORY
In People v. Palmer, the California Supreme Court held that as part of a defendants change of plea, there is no invariable requirement that the defense stipulate to any specific document in order to establish a factual basis for the plea. It seems clear, under People v. Palmer (2013) 58 Cal.4th 110, 164 Cal.Rptr.3d 841, that the trial court is not required to collect such a stipulation We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial court may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsels advice. (Ibid. at ___.) To protect the defendant against adverse immigration consequences, criminal defense counsel should make every attempt not to stipulate to any particular document as the factual basis for the plea. Some prosecutors may insist upon a specific factual basis as part of a plea bargain. Some judges may simply hew to their personal practice of requiring a stipulation by reference to a specific document. Palmer does not actually hold that a defendant is entitled to refuse stipulation to a specific record document, but a defendant can never be compelled to enter a stipulation. It simply holds that a plea is permissible even without a stipulation to a particular document. From the clients standpoint, there will rarely ever be a situation where it is in a clients immigration interest to augment his or her change of plea with additional facts. Defense counsel if possible should adhere to the following guidelines: Defense counsel should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document. This approach is approved in Palmer, if the Palmer requirements are met. There is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885. If the court insists on a stipulation by reference to a specific document, defense counsel should stipulate that the court may find a factual basis in the specific document without agreeing that anything in that document is true. People v. French (2008) 43 Cal.4th 36, 50-51; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) In French, the court stated: Furthermore, nothing in the record indicates that defendant, either personally or through his counsel, admitted the truth of the facts as recited by the prosecutor. Defense counsel stated that she had discussed the facts of the case at length with defendant and that she had allowed defendant to view a portion of the tapes of interviews of the victims, which had been provided to the defense in discovery. As noted earlier, when asked by the trial court whether she believed there was a sufficient factual basis for the no contest pleas, defense counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to." Indeed, counsel was careful to state that she agreed that witnesses would testify to the facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements were correct. Under the circumstances of this case, defense counsel's stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856. (People v. French, supra, 43 Cal.4th at 50-51.) If it is necessary to refer to a specific document, be selective, choose a document that merely recites the basic essential elements of the charged offense and no more. This may be true, for example, of the charging document. Or counsel can consider stipulating to only certain portions of a record document. Finally, California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal.4th 432. Counsel can control the contents of the defendants admission, by stating it for him, and then asking, Isnt that correct? Counsels wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. For example, counsel can say, Mr. Defendant, isnt it true that on March 4, 2014, at the corner of Hollywood and Vine, Los Angeles, California, within the County of Los Angeles, while driving a blue Camaro, you did possess a controlled substance prohibited under Health and Safety Code 11377(a)? This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule. This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant. The basis is technically then counsel's review and not what is contained in the documents themselves. Entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.

CAL POST CON"VEHICLES"PENAL CODE 1385"LIMITATIONS
People v. Tuck (1st Dist. Mar. 27, 2012) 204 Cal.App.4th 724, 730, 139 Cal.Rptr.3d 407 (rejecting argument that mandatory registration as a sex offender, under Penal Code 290, can be stricken in the interest of justice under Penal Code 1385: The registration requirement is neither an action, a criminal count, nor a factual allegation. Nor is registration under section 290 considered to be punishment.). In People v. Tuck (1st Dist. Mar. 27, 2012) 204 Cal.App.4th 724, 730, 139 Cal.Rptr.3d 407, the court held that the trial court had no authority, under Penal Code 1385, to strike the mandatory requirement that a defendant register as a sex offender under Penal Code 290. The court reasoned: The registration requirement is neither an action, a criminal count, nor a factual allegation. Nor is registration under section 290 considered to be punishment. (Ibid.) The courts reasoning, in full, was as follows: Tuck contends the trial court could have relieved him of the registration requirement under section 1385 and incorrectly believed it lacked the discretion to do so. There is no merit to this argument. Section 1385, subdivision (a), authorizes a trial court to dismiss a criminal action in furtherance of justice. [T]he power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Tuck points to no case in which the trial court's authority under section 1385 has been applied to the lifetime registration requirement of section 290, and we are aware of none. Tuck quotes People v. Picklesimer, supra, 48 Cal.4th at page 344, for the proposition that there is no constitutional bar to having a judge exercise his or her discretion to determine whether [a defendant] should continue to be subject to registration. This quote is taken entirely out of context. There, the court was holding only that the decision of the United States Supreme Court in Apprendi v. New Jersey (2000) 533 U.S. 466 did not require a jury rather than the court to find that a person committed an offense not listed in section 290, subdivision (c) as a result of sexual compulsion or for purposes of sexual gratification for the purpose of imposing registration under section 290.006. (48 Cal.4th at pp. 343"344.) The court was not addressing the authority of courts to strike a statutory consequence of a conviction. The registration requirement is neither an action, a criminal count, nor a factual allegation. Nor is registration under section 290 considered to be punishment. (People v. Castellanos (1999) 21 Cal.4th 785.) Rather, it is a consequence of conviction of certain enumerated crimes. In Hofsheier, the court noted that [t]he duty to register as a sex offender under section 290, subdivision (a), cannot be avoided ... through the exercise of judicial discretion. (Hofsheier, supra, 37 Cal.4th at p. 1196.) Section 1385 does not give the trial court discretion to modify statutorily prescribed consequences of a conviction or to strike the registration requirement. (Cf. In re Parnell (2003) 30 Cal.4th 1132, 1139 [a trial court's power to dismiss an action under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation]; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, superseded by statute on other grounds as stated in People v. Carlson (1974) 37 Cal.App.3d 349, 355, fn. 4 [subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch].) (Id. at 730-31.)

CAL POST CON"DIRECT APPEAL"CERTIFICATE OF PROBABLE CAUSE TO APPEAL
People v. Briseno, 203 Cal.App.4th 1347, 138 Cal.Rptr.3d 283 (6th Dist. Feb. 28, 2012) (dismissing defendant's appeal for lack of a timely obtained certificate of probable cause, so court was without jurisdiction to address the appeal notwithstanding a federal district court order that the defendant be allowed to appeal); compare Briseno v. Woodford (9th Cir.2010) 413 Fed.Appx. 2 (circuit court found the trial courts failure to advise the defendant at plea of the mandatory minimum sentence, which was prejudicial because there was a reasonable chance he would be successful on appeal.).

CAL POST CON"GROUNDS"RIGHT TO COUNSEL"MENTAL COMPETENCE FOR SELF-REPRESENTATION
People v. Johnson, 53 Cal.4th 519, 267 P.3d 1125 (Jan. 30, 2012) (the fact that a criminal defendant is competent to stand trial does not necessarily mean that he is also competent to represent himself).

CAL POST CON"PRACTICE ADVISORY"SAFE HAVEN"PAULUS DEFENSE"GIVING THE DA PRIORABILITY WITHOUT AGREEING THE SUBSTANCE IS METH
If the prosecution objects to striking the name of the specific controlled substance from the charge, on the ground that the prosecution will lose its ability to charge the current conviction as a prior controlled substances conviction in a future drug prosecution, counsel can stipulate that the current conviction may be used as a prior under that code section without admitting the exact nature of the controlled substance involved in the current case. Counsel can make it a People v. West stipulation, done for tactical reasons, rather than because the substance was in fact a certain substance, and expressly refuse to agree that the substance was in fact the substance identified in the original charge. Otherwise, the new conviction will cause deportation. See Health & Safety Code 11370.4(a) (making a prior involving heroin, cocaine base, or cocaine sufficient to justify a sentence enhancement), 11370.4(b) (making a prior involving methamphetamine, amphetamine, PCP, and its analogs sufficient to justify a sentence enhancement). This type of plea bargain agreement is enforceable, regardless of whether the underlying substance in fact triggers the sentence enhancement. In People v. Miller, 202 Cal.App.4th 1450 (5th Dist. Jan. 27, 2012), the court agreed there was error in charging and accepting the plea to diazepam possession as a felony, because Health & Safety Code 11375(a), (c)(4), provided that offense was a misdemeanor, rather than a felony. The court, however, for reasons of public policy, conclude[d] appellant is estopped from vacating his plea and modifying his conviction, by his consent to the plea agreement. (Id. at 1452.) In Feb., 2005, Miller pleaded guilty to possession of diazepam, in violation of Health & Safety Code 11350(a), and in April, 2005, received a sentence including three years probation, to terminate in April, 2008. Miller later attempted to vacate this conviction: In April 2010, appellant filed a motion to vacate his plea and modify his conviction, on the grounds that a felony conviction for unlawful possession of diazepam was outside the trial court's subject matter jurisdiction, since at most this crime was a misdemeanor. Although the trial court agreed a mistake had been made, it denied the motion on grounds that equitable estoppel barred appellant from vacating his conviction. The trial court commented that appellant had received the benefit of a plea bargain in light of the fact that there was another felony available to the People to prosecute him, possession of Vicodin, which was dismissed as part of the plea. Appellant obtained the requisite certificate of probable cause and appealed the trial court's ruling. (Pen.Code, 1237.5.) . . . Appellant asserts a single claim: that the equitable estoppel doctrine has no application to the circumstances of his case. He contends equitable estoppel applies only where a person is looking to receive a benefit that reduces the direct penal consequences of the judgment, for example, a reduced sentence. He argues, however, that he has fulfilled all the requirements of the plea agreement and probation term, and is not asking to reduce the term or otherwise receive some sort of recompense for the error. Instead, he seeks essentially only to eliminate the collateral consequences of the erroneous conviction and plea to a felony, that is, the negatives associated with a felony conviction and the burden of declaring his prior conviction to potential employers and licensing agencies. (Footnote omitted.) Respondent concedes that the plea agreement erroneously stated that diazepam possession was a felony and that appellant's plea to the same was in error. (Footnote omitted.) Respondent, however, asserts that appellant is estopped from modifying his conviction on equitable estoppel grounds. (Footnote omitted.) The facts are not in dispute and we review the application of the estoppel doctrine de novo, as a question of law. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.) As noted above, we conclude that for reasons of public policy, appellant is estopped from asserting his claim of error to vacate and modify his conviction. (Id. at 1455-56.) The court here relied on People v. Ellis (1987) 195 Cal.App.3d 334, in which the defendant admitted as part of her plea bargain that her prior federal bank robbery conviction constituted a serious felony for enhancement purposes, when it did not in fact meet the California serious felony elements as a matter of law. (Id. at 342.) The Ellis court also found, however, that estoppel principles could apply where the court acted only in excess of its jurisdiction (as opposed to a complete lack of jurisdiction), by exceeding its statutory authority to accept an erroneous plea agreement: the issue was whether defendant, by her consent to the plea bargain ... should be estopped from later asserting a claim of error. (Id. at 343.) The court distinguished in a footnote between simple estoppel and equitable estoppel: Appellant's briefs confuse the doctrine of equitable estoppel with simple estoppel. The doctrine discussed in Ellis, and other cases involving criminal plea agreements in excess of jurisdiction, relates to simple estoppel, which generally provides that a party is barred from taking certain positions contrary to their previous actions, such as consenting to a plea agreement. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 486 and fn. 21.) The focus is on the actions of the party arguing against estoppel, not on the other involved parties. Equitable estoppel, however, generally discussed in the civil context, focuses on knowledge of the parties, intent and reliance. These elements are not part of the analysis in this case, as appellant conceded at argument. (See People v. Castillo (2010) 49 Cal.4th 145, 155 and fn. 10.) (Id. at 1456, n.5.) Therefore, the prosecution can obtain a guarantee of priorability without identifying the specific controlled substance in the new plea colloquy.

CAL POST CON"SAFE HAVEN"IMPROPER JUDICIAL PLEA BARGAINING
People v. Clancey (1/10/12) 136 Cal.Rptr.3d 226 (reversing conviction, where court engaged in unlawful judicial plea bargaining by informing the defendant that it would impose a five-year term and strike a strike if he admitted all of the charges and allegations against him, and that he could withdraw his pleas and admissions if the trial court did not follow through on its offer).

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CONFLICT OF INTEREST " CONFLICT BETWEEN ATTORNEY AND CLIENT RESPECTING CLAIM THAT ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
A guilty plea may be rendered legally invalid if defense counsel suffered from a debilitating conflict of interest. Counsel who had previously rendered ineffective assistance may well have been aware of his error at the time of the entry of the plea. On the one hand, he was obligated to inform his client of his own error. In effect, he had a duty to inform the client of his own ineffective assistance. On the other hand, he had a personal interest in concealing his error from his client, to protect his professional reputation, to protect his license to practice law, and to protect himself against the possibility of liability in damages for professional negligence. A person suffering this acute conflict of interest is disabled from vigorously representing his client. See Annot., Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel " Federal Cases, 53 A.L.R. FED. 140; Developments in the Law " Conflicts of Interest in the Legal Profession, 94 HARVARD L. REV. 1244, 1381 (1981). This conflict can have a real impact on counsels representation of his client at the plea hearing. Among other errors, counsel may fail to disclose his error to his client until after the plea and sentence had become final, thus relegating his client to the difficult road of seeking post-conviction relief. He should have told his client immediately and offered to withdraw from the representation, allowing the client to pursue his remedies at the time, before plea and sentence, when something might have been salvaged from the situation. The Sixth Amendment guarantees criminal defendants effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Cuyler, 446 U.S. at 345, 100 S.Ct. at 1716; Duncan v. Alabama, 881 F.2d 1013, 1016 (11th Cir.1989). Part of effective assistance of counsel is the avoidance of conflicts of interest. The Supreme Court has emphasized that when counsel is burdened with a conflict of interest, she breaches the duty of loyalty, perhaps the most basic of counsel's duties and has therefore failed to provide effective assistance of counsel. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; see also Buenoano v. Singletary, 963 F.2d 1433, 1438 (11th Cir.1992). A defendant may only waive the right to conflict-free counsel if that waiver is knowing and intelligent. For a waiver [t]o be knowing and intelligent the defendant must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel. Duncan v. Alabama, 881 F.2d 1013, 1017 (11th Cir. 1989). The Supreme Court has held that attorney conflict of interest is per se prejudicial under the second prong of Strickland. That rule reflects the impossibility of proving prejudice in certain contexts, such as an attorney conflict of interest. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980) (attorney conflict of interest affecting representation). Here, defense counsels conflict of interest was per se prejudicial, because it disabled him from making many arguments in his clients favor during the plea hearing because if he did so, his client would learn of the ineffectiveness of his prior representation. Under ABA standards, Rule 1.2, [a] lawyer shall abide by a clients decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. ABA Model Rules of Professional Conduct 1.2(a) (2000) (emphasis added). Moreover, as advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. Id. Preamble [2]. The lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Id. 1.4(b); see Rule 1.4 cmt. (The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.). Courts have recognized actual conflicts of interest between an attorney and his client when pursuit of a clients interests would lead to evidence of an attorneys malpractice. United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994) (citing United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)). In Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991), the court affirmed a district court finding that petitioners state appellate counsel, faced with disciplinary proceedings and possible liability for causing a six-year delay in the appeal, suffered from a conflict of interest that created a per se Sixth Amendment violation and required the state to afford petitioner a new state appeal. Similarly, in Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995), the court held that petitioners right to effective assistance of counsel at his sentencing had been violated, and ordered him resentenced with new counsel representing him. Where petitioner had filed a pro se motion to withdraw his plea, on the ground his attorney had coerced him into entering it, a conflict of interest arose resulting in denial of effective assistance of counsel. Id., citing United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir. 1992). A conflict of interest existed where appellant was unable to raise an issue (that he committed the act on advice of counsel) because his specific lawyer was representing him, that he would have been able to raise with other counsel. The court stated: The conflict would have been particularly acute if the advice Mitchell supposedly gave would have constituted a violation of the rules of professional ethics. The presumption of prejudice extends to a conflict between a client and his lawyers personal interest. Mannhalt, 847 F.2d at 580 (citations omitted). United States v. Miskinis, 966 F.2d 1263, 1269 (9th Cir. 1992).

CAL POST CON"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO MOVE TO DISMISS A COUNT
People v. Witcraft (2011) 201 Cal.App.4th 659 (IAC for failing to move to dismiss a count).

CAL POST CON"VEHICLES"MOTION TO STRIKE SURPLUSAGE"JUVENILE COURT EXCEEDED ITS AUTHORITY TO AMEND PETITION OVER PROSECUTION OBJECTION
In re Jeffrey H. (2011) 196 Cal.App.4th 1052 (disposition reversed, on grounds juvenile court exceeded its authority in amending the petition over the prosecution's objection).

CAL POST CON"PARDONS"GOVERNORS REPORT (2011)
During calendar 2011, Governor Brown granted 21 pardons, but no commutations or reprieves.

PETITION FOR FINDING OF FACTUAL INNOCENCE " STANDARD OF PROOF
People v. Bleich, 178 Cal.App.4th 292, 100 Cal.Rptr.3d 288 (Oct. 9, 2009)(affirming trial court's denial of petition for a finding of factual innocence following the dismissal of charges of terrorist threat and stalking, since defendant failed to sustain her burden to show that she is factually innocent of the charges brought against her such that she never should have been subjected to criminal process in the first place, even though prosecution failed in its burden to present evidence sufficient to bind defendant over for trial).

CALIFORNIA " DOMESTIC VIOLENCE " PROBATION CONDITIONS APPLY TO NON-DV CONVICTIONS IF UNDERLYING FACTS INVOLVE DV CRIMINAL LAW & PROCEDURE, SENTENCING
People v. Cates, No. A121037 Following plea of no contest to a felony assault, judgment modifying probation and ordering defendant to complete 52-week batterer's counseling program is affirmed where: 1) Penal Code section 1203.097 applies to any person placed on probation for a crime if the underlying facts of the case involve domestic violence, even if the statute defining the crime does not specifically refer to domestic violence; and 2) the trial court was obligated to correct its sentence even in the absence of a subsequent probation violation.

CALIFORNIA " DOMESTIC VIOLENCE " PROBATION CONDITIONS APPLY TO NON-DV CONVICTIONS IF UNDERLYING FACTS INVOLVE DV
CRIMINAL LAW & PROCEDURE, SENTENCING People v. Cates, No. A121037 Following plea of no contest to a felony assault, judgment modifying probation and ordering defendant to complete 52-week batterer's counseling program is affirmed where: 1) Penal Code section 1203.097 applies to any person placed on probation for a crime if the underlying facts of the case involve domestic violence, even if the statute defining the crime does not specifically refer to domestic violence; and 2) the trial court was obligated to correct its sentence even in the absence of a subsequent probation violation.

CRIMINAL DEFENSE OF IMMIGRANTS -- PROSECUTION CONTROL OVER DEPORTATION REMOVAL -- PROSECUTION CONTROL OVER DEPORTATION
The prosecutors control whether a criminal defendant gets physically removed from the United States. After receiving instructions from a federal or state prosecutor not to remove a defendant, ICE should issue a Departure Control Order. If a judge is worried that the defendant would not be available for trial because ICE would remove the defendant from the United States, defense counsel can remind the court that the prosecutor has the power under this regulation to keep the defendant in the United States.

CAL POST CON"VEHICLES"MOTION FOR RECONSIDERATION
In the civil arena, "the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. In short, the moving party's burden is the same as that of a party seeking new trial on the ground of 'newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.'" (Blue Mountain Development Co. v. Carville (1982), 132 Cal.App.3d 1005, 1013. Accord, Mink v. Superior Court (1992), 2 Cal.App.4th 1338, 1342.) This is based on Code of Civil Procedure 1008. However, according to People v. Castello (1998), 65 Cal.App.4th 1242, Code of Civ. Pro. 1008, which governs motions for reconsideration in the civil arena, does not apply to criminal cases. Criminal courts, however, look to Code Civ. Pro. 1008 for guidance. (See, e.g., In re Kowalski (1971), 21 Cal.App.3d 67, 70.) In rejecting the application of Code Civ.Pro. 1008 to criminal cases, the Castello court emphasized that a criminal court has the inherent power to reconsider its own rulings. The court noted that, at most, "section 1008 requires courts to exercise due consideration before modifying, amending or revoking prior orders. (Castello, supra, at 1250.) Thanks to Jason Cox.

CAL POST CON"REPROSECUTION AFTER VACATUR"RISK OF LONGER SENTENCE"VINDICTIVE PROSECUTION
People v. Villanueva (2011) 196 Cal.App.4th 411 (no vindictive prosecution although a defendant who was convicted on a lesser offense at retrial (with an enhancement) received a longer sentence than he had received after his initial conviction of a greater offense).

CAL POST CON"PRACTICE ADVISORY"VALIDITY OF PLEA"GROUNDS"FACTUAL BASIS"NO REQUIREMENT THAT FACTUAL BASIS MUST BE WRITTEN
Penal Code 1192.5 does not require that the factual basis for a plea be in writing: In sum, we conclude that the trial court must garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge (Watts, supra, 67 Cal. App. 3d at p. 179), or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. (Montoya-Camacho, supra, 644 F.2d at p. 487.) If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. People v. Holmes, 32 Cal. 4th 432, 442 (Cal. 2004) The statute requires the inquiry to be made of defendant ( 1192.5), but we conclude that stipulation by counsel to the pleas factual basis is consistent with the legislative purpose of the statute. While defendant may not be in a position to recognize whether his acts do or do not constitute the offense with which he is charged (Tigner, supra, 133 Cal. App. 3d at p. 433), defense counsel is well suited to make such a determination. Nearly all California authority takes a similar stance. (See Watts, supra, 67 Cal. App. 3d at p. 180 [It should be emphasized that the California Penal Code does not require the trial court to interrogate a defendant personally . It is also clear that the court need not obtain general information about the crime directly from the defendant in order to establish the factual basis for the plea]; Wilkerson, supra, 6 Cal.App.4th at p. 1576 [The trial court should ask the accused to describe the conduct that gave rise to the charge or elicit information from either counsel (italics added)].) People v. Holmes, 32 Cal. 4th 432, 442, n.5 (2004). The court also stated: We also approve of, though do not require in California, the practice in other courts of including a detailed and signed factual basis account as an attachment to the plea agreement. (United States v. Spruill (5th Cir. 2002) 292 F.3d 207, 211; United States v. Deluca 203 F.3d 823 (4th Cir. 1999) (unpublished table decision), [2001 WL 1291, p. *2]; State v. Harper (1993) 177 Ariz. 444 [868 P.2d 1027, 1028, fn. 1]; State v. Thompson (1986) 150 Ariz. 554 [724 P.2d 1223, 1227].) Questioning of the defendant by the trial court regarding such attachment to the plea agreement generally will be sufficient to meet the section 1192.5 standard. (People v. Holmes, 32 Cal. 4th 432, 441-442 (2004).) The factual basis requirement, pursuant to Penal Code 1192.5, only applies to felonies, not misdemeanors: As long as defendant's constitutional rights are respected in a criminal proceeding, the convenience of the parties and the court should be given considerable weight. Thus, the Legislature's action in enacting Pen C 1192.5, which does not require a factual basis determination for guilty pleas of misdemeanor defendants, does not violate equal protection standards, and a defendant charged with violating former Veh C 23102(a) (See now Veh C 23152(a)), driving under the influence of intoxicating liquor, was not entitled to have a prior conviction for the same offense stricken on the grounds that the trial court had failed to ascertain whether there was a factual basis for his guilty plea. The record showed that the trial court had explained the nature of the charge and the date and place at which the violation had occurred to defendant and defendant's response to questions from the court indicated that he understood the nature of the charge. Ballard v. Municipal Court (1978, Cal App 1st Dist) 84 Cal App 3d 885, 149 Cal Rptr 82, 1978 Cal App LEXIS 1930. Thanks to Graciela Martinez.