Filed 5/19/16 P. v. Cardona CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B263671
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A978402)
v.
OSCAR W. CARDONA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Scott M.
Gordon, Judge. Reversed with directions
Eduardo A. Paredes for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M Roadarmel, Jr.,
and Steven D. Matthews, Supervising Deputy Attorneys General, and David A. Voet,
Deputy Attorney General, for Plaintiff and Respondent.
_________________________________
Defendant Oscar W. Cardona appeals from the trial court’s order denying his Penal
Code section 1016.5, subdivision (b)1 petition to vacate the judgment and permit him to
withdraw his guilty plea to a charge of sale or transportation of cocaine. Defendant
contends, and the Attorney General aptly concedes, that the trial court erroneously
concluded it lacked jurisdiction to do so. We agree with the parties and therefore reverse
the trial court’s order and remand for consideration of the merits of defendant’s motion.
BACKGROUND
In 1988 defendant was charged with, and pleaded guilty to, a violation of Health
and Safety Code section 11352, sale or transportation of cocaine. The trial court placed
him on probation. In 2006 the trial court granted defendant’s motion pursuant to section
1203.4 to set aside his plea and dismiss the complaint on the ground defendant had
fulfilled the conditions of his probation.
In 2015 defendant filed his section 1016.5, subdivision (b) petition to vacate. The
trial court denied the petition after concluding the prior relief granted under section
1203.4 deprived the court of further jurisdiction.
DISCUSSION
“ ‘ “A grant of relief under section 1203.4 is intended to reward an individual who
successfully completes probation by mitigating some of the consequences of his
conviction and, with a few exceptions, to restore him to his former status in society to the
extent the Legislature has power to do so [citations].” ’ [Citation.] However, such relief
‘ “does not, properly speaking, ‘expunge’ the prior conviction. The statute does not
purport to render the conviction a legal nullity. Instead, it provides that, except as
elsewhere stated, the defendant is ‘“released from all penalties and disabilities resulting
from the offense.”. . . “That final judgment of conviction is a fact; and its effect cannot
be nullified . . . by . . . the . . . order dismissing the action after judgment.” ’ ” (People v.
Mgebrov (2008) 166 Cal.App.4th 579, 584.) Granting a defendant relief under section
1 Undesignated statutory references are to the Penal Code.
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1203.4 has no effect on the federal immigration consequences of a conviction. (People v.
Martinez (2013) 57 Cal.4th 555, 560 (Martinez.)
Section 1016.5 requires the trial court to advise a defendant of potential
immigration consequences of a guilty or no contest plea and, upon a defendant’s motion,
requires a trial court to vacate any plea for which a defendant was not so advised
(§ 1016.5, subds. (a)–(b)), if the defendant establishes prejudice (People v. Superior
Court (Zamudio) (2000) 23 Cal.4th 183, 199–200). “If, after January 1, 1978, the court
fails to advise the defendant as required by this section and the defendant shows that
conviction of the offense to which defendant pleaded guilty or nolo contendere may have
the consequences for the defendant of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United States, the
court, on defendant's motion, shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a
record that the court provided the advisement required by this section, the defendant shall
be presumed not to have received the required advisement.” (§ 1016.5, subd. (b).)
We review the trial court’s denial of a section 1016.5 motion for abuse of
discretion. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172.) No certificate of
probable cause is required. (People v. Arriaga (2014) 58 Cal.4th 950, 960.)
Because a dismissal under section 1203.4 does not eradicate the conviction for all
purposes, the 1988 judgment remains subject to attack by a motion under section 1016.5.
(See People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554–555 [coram nobis petition to
vacate conviction to avoid deportation], superseded by enactment of section 1016.5, as
stated in People v. Kim (2009) 45 Cal.4th 1078, 1103; see also Martinez, supra 57 Cal.4th
at pp. 560, 568–569 [defendant potentially entitled to relief under § 1016.5 even though
§ 1203.4 relief previously granted]; People v. Totari (2002) 28 Cal.4th 876, 879–880
[same].) Accordingly, as the parties agree, the trial court erroneously denied defendant’s
motion on the basis of its belief that it lacked jurisdiction to entertain that motion. We
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reverse the trial court’s order and remand with directions to consider the merits of
defendant’s motion.
DISPOSITION
The order of the trial court is reversed and the cause is remanded with directions
for the trial court to consider the merits of defendant’s motion.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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