1

Filed 3/30/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE VACA,

Defendant and 

Appellant.

 A164953

 (Napa County

Super. Ct. No. CR179098)

Defendant Jorge Vaca (Vaca) successfully moved under 

Penal Code1 section 1473.7 to vacate his conviction and withdraw 

his no contest plea. He appeals from the trial court’s 

contemporaneous order denying his motion to dismiss the 

criminal complaint against him under the same statute. Vaca 

contends that, after the trial court granted his motion to vacate 

his conviction under section 1473.7, the statute required 

dismissal of the underlying criminal complaint filed against him. 

We disagree and affirm the court’s order.

BACKGROUND

In 2016, Vaca was charged by an amended complaint with 

violating section 422 and various provisions of the Health & 

1 All further references are to the Penal Code unless 

otherwise stated.
2

Safety Code, including two counts of violating Health & Safety 

Code section 11379, subdivision (a). Pursuant to a negotiated 

agreement, Vaca entered a plea of no contest to the two counts of 

violating Health & Safety Code section 11379, subdivision (a), 

and the court dismissed the remaining charges. The court placed 

Vaca on formal probation for three years with a 120-day jail 

sentence.

After completing probation, Vaca moved to vacate his 

conviction and withdraw his plea under section 1473.7, and the 

court held an evidentiary hearing. In closing argument, defense 

counsel stated that Vaca met his burden under section 1473.7 

and alluded to dismissal of the case. The People opposed, and, 

with respect to the request for dismissal, claimed lack of notice 

and asked for time to brief the issue if the court was inclined to 

entertain the request. Defense counsel sought to respond, but 

the court asked him to submit the matter.

The court then stated that it was granting Vaca’s motion, 

and it inquired whether Vaca would retain his counsel. Defense 

counsel replied that he would likely assist Vaca “until the motion 

to dismiss part is concluded,” and “invite[d] the Court to dismiss 

under 1385 and move[d] to dismiss under 1473.7 and 1016.2.” 

The court responded, “Yes. You had mentioned that. The 1016.2 

and the 1385, I’m going to go ahead and deny both of those 

requests under 1385 and 1016.2. [¶] Under [ ] 1473.7[,] I find the 

defense has met their burden, but I will not dismiss.” The court 

reinstated the amended complaint.
3

Vaca timely appealed.2 

DISCUSSION

I. Appealability

As a threshold matter, the Attorney General contends that 

the court’s order denying Vaca’s request for dismissal is not 

appealable. Vaca maintains that the order is appealable under 

sections 1473.7, subdivision (f), and 1237, subdivision (b). 

Subdivision (f) of section 1473.7 provides: “An order granting or 

denying the motion is appealable under subdivision (b) of Section 

1237 as an order after judgment affecting the substantial rights 

of a party.” Section 1237, subdivision (b), in turn, provides that a 

defendant may appeal “[f]rom any order made after judgment, 

affecting the substantial rights of the party.” 

The court’s order denying dismissal is appealable under 

section 1237, subdivision (b). The Attorney General does not 

dispute that the order affected Vaca’s substantial rights. Instead, 

the Attorney General contends that the order is not appealable 

because it was not made after judgment, given that the court had 

just granted Vaca’s motion to vacate. But the court made the 

rulings granting the motion to vacate and denying the motion to 

dismiss under section 1473.7 contemporaneously. Further, 

section 1473.7 expressly provides for postjudgment relief. 

(§ 1473.7, subd. (f).) The scope of that relief is disputed in this 

case, but Vaca’s contention is that, under section 1473.7, he was 

2 As Vaca does not argue on appeal that he was entitled to 

dismissal under sections 1016.2 or 1385, we do not address those 

statutes.
4

simultaneously entitled to have his conviction vacated, his plea 

withdrawn, and the complaint dismissed. In these 

circumstances, it is not appropriate to characterize the order at 

issue as a prejudgment order, and the order is appealable. 

(§ 1237, subd. (b).)

II. Section 1473.7 Does Not Require Dismissal of the

Complaint

Vaca argues that section 1473.7 requires dismissal of the 

complaint against him. The Attorney General contends that 

section 1473.7 does not require dismissal of the criminal matter 

after a defendant successfully moves to vacate a conviction or 

sentence. The key question in this appeal thus is one of statutory 

interpretation.

“ ‘In construing a statute, our role is to ascertain the 

Legislature’s intent so as to effectuate the purpose of the law. 

[Citation.] In determining intent, we must look first to the words 

of the statute because they are the most reliable indicator of 

legislative intent.’ [Citation.] ‘ “The words of the statute should 

be given their ordinary and usual meaning and should be 

construed in their statutory context.” ’ [Citation.] ‘If the 

statutory language is clear and unambiguous, the plain meaning 

of the statute governs.’ ” (People v. Johnson (2022) 

79 Cal.App.5th 1093, 1108–1109.) “ ‘ “If, however, the language 

supports more than one reasonable construction, we may consider 

‘a variety of extrinsic aids, including the ostensible objects to be 

achieved, the evils to be remedied, the legislative history, public 

policy, contemporaneous administrative construction, and the 
5

statutory scheme of which the statute is a part.’ [Citation.] 

Using these extrinsic aids, we ‘select the construction that 

comports most closely with the apparent intent of the 

Legislature, with a view to promoting rather than defeating the 

general purpose of the statute, and avoid an interpretation that 

would lead to absurd consequences.’ ” ’ ” (Id. at p. 1109.)

We need not look beyond section 1473.7’s plain language to 

determine that the statute does not require the dismissal Vaca 

seeks. Pertinent here, section 1473.7, subdivision (a)(1)

authorizes “[a] person who is no longer in criminal custody” to file 

a motion to vacate a conviction or sentence on the ground that 

“[t]he conviction or sentence is legally invalid due to prejudicial 

error damaging the moving party’s ability to meaningfully 

understand, defend against, or knowingly accept the actual or 

potential adverse immigration consequences of a conviction or 

sentence.” “The court shall grant the motion to vacate the 

conviction or sentence” if the moving party establishes a ground 

for relief by a preponderance of the evidence and shows “that the 

conviction or sentence being challenged is currently causing or 

has the potential to cause removal or the denial of an application 

for an immigration benefit, lawful status, or naturalization.” 

(§ 1473.7, subd. (e)(1).) “When ruling on a motion under 

paragraph (1) of subdivision (a), the only finding that the court is 

required to make is whether the conviction is legally invalid due 

to prejudicial error damaging the moving party’s ability to 

meaningfully understand, defend against, or knowingly accept 

the actual or potential adverse immigration consequences of a 
6

conviction or sentence.” (§ 1473.7, subd. (e)(4).) Further, the 

statute instructs, “If the court grants the motion to vacate a 

conviction or sentence obtained through a plea of guilty or nolo 

contendere, the court shall allow the moving party to withdraw 

the plea.” (§ 1473.7, subd. (e)(3).) 

Vaca’s interpretation of section 1473.7 would add to the 

statute a requirement that the trial court dismiss the charging 

document after granting the defendant’s motion to vacate his or 

her conviction or sentence and allowing the defendant to 

withdraw his or her plea. Of course, the Legislature said no such 

thing. “In construing a statute, we are ‘ “careful not to add 

requirements to those already supplied by the Legislature.” ’ 

[Citation.] ‘ “ ‘Where the words of the statute are clear, we may 

not add to or alter them to accomplish a purpose that does not 

appear on the face of the statute or from its legislative 

history.’ ” ’ ” (Kim v. Reins International California, Inc. (2020) 

9 Cal.5th 73, 85.) Had the Legislature intended to require 

dismissal of all charges filed against a defendant, it could have 

worded the statute accordingly. “ ‘That it did not implies no 

such . . . requirement was intended.’ ” (Ibid.)

Despite the language of section 1473.7, Vaca contends that 

legislative history from Assembly Bill No. 2867, which amended 

section 1473.7 in 2019 (Stats. 2018, ch. 825, § 2), supports his 

position. Essentially, he argues that, because the Legislature 

mentioned case law interpreting Proposition 473 in its declaration 

3 Proposition 47 reduced certain nonviolent crimes from 

felonies to misdemeanors. (Harris, supra, 1 Cal.5th at p. 988.) It 
7

and findings when enacting Assembly Bill No. 2867, Harris v. 

Superior Court (2016) 1 Cal.5th 984 (Harris)—which held that 

the People may not withdraw from a plea bargain when a 

defendant seeks resentencing under Proposition 47—requires 

that the People here be held to their bargain and the case be 

dismissed. Putting aside the fact that uncodified legislative 

declarations and findings cannot trump plain statutory language, 

we disagree that the legislative history supports Vaca’s position.

The legislative declaration upon which Vaca relies is not 

relevant to the question before us. The declaration states, “It is 

the intent of the Legislature that courts have the authority to 

rule on motions filed pursuant to [s]ection 1473.7, provided that 

the individual is no longer in criminal custody. Consistent with 

case law interpreting other statutes that authorize postconviction 

relief, including Meyer v. Superior Court (1966) 247 Cal.App.2d 

133 (interpreting [s]ection 17, subdivision (b)) and People v. 

Tidwell (2016) 246 Cal.App.4th 212 (interpreting [section 

1170.18]), a motion for relief pursuant to [section 1473.7] shall be 

heard and may be granted, notwithstanding a prior order setting 

aside an adjudication of guilt or a prior order dismissing or 

reducing one or more charges under any provision of law.” 

(Stats. 2018, ch. 825, § 1(e).) In Meyer, the defendant who 

also added section 1170.18, permitting a person currently 

“serving a sentence for a conviction, whether by trial or plea, of a 

felony or felonies who would have been guilty of a misdemeanor 

under the act that added this section (‘this act’) had this act been 

in effect at the time of the offense” to petition for a resentencing 

as a misdemeanant. (§ 1170.18, subd. (a).)
8

completed probation moved successfully to withdraw his guilty 

plea under section 1203.44 (which expunges a conviction for 

limited purposes), and subsequently sought to have the offense 

for which he was convicted declared a misdemeanor under section 

175. (Meyer, at pp. 134, 140.) Meyer held that the relief 

defendant obtained under section 1203.4 did not preclude relief 

under section 17. (Id. at pp. 139–140.) Tidwell similarly held 

that a probationer who obtained relief under section 1203.4 could 

subsequently have his felony convictions reduced to 

4 Section 1203.4, subdivision (a) provides, “When a 

defendant has fulfilled the conditions of probation for the entire 

period of probation, or has been discharged prior to the 

termination of the period of probation, or in any other case in 

which a court, in its discretion and the interest of justice, 

determines that a defendant should be granted the relief 

available under this section, the defendant shall, at any time 

after the termination of the period of probation, if they are not 

then serving a sentence for an offense, on probation for an 

offense, or charged with the commission of an offense, be 

permitted by the court to withdraw their plea of guilty or plea of 

nolo contendere and enter a plea of not guilty; or, if they have 

been convicted after a plea of not guilty, the court shall set aside 

the verdict of guilty; and, in either case, the court shall thereupon 

dismiss the accusations or information against the defendant and 

except as noted below, the defendant shall thereafter be released 

from all penalties and disabilities resulting from the offense of 

which they have been convicted, except as provided in Section

13555 of the Vehicle Code.” 

5 In 1963, section 17 was amended to empower a court 

which grants probation for an offense punishable by 

imprisonment in the state prison or by imprisonment in the 

county jail, without pronouncing judgment and/or without 

imposing sentence, at that time or at any time thereafter, to 

declare the offense to be a misdemeanor. (Meyer, supra, 

247 Cal.App.2d at p. 134.)
9

misdemeanors under Proposition 47. (People v. Tidwell, at 

pp. 219–220.) The declaration at issue thus goes no further than 

expressing intent that section 1473.7 relief be available 

regardless of whether the movant previously obtained an order 

setting aside an adjudication of guilt or reducing or dismissing 

one of the charges. 

Vaca’s reliance on Harris v. Superior Court, supra, 

1 Cal.5th 984 does not persuade us otherwise. In Harris, a 

defendant who had entered a plea bargain sought resentencing 

under Proposition 47, and the question was whether the People 

should be permitted to withdraw from the plea bargain on the 

basis that resentencing would deprive the People of the benefit of 

their bargain. (Id. at pp. 988–989.) Harris held the People were 

not entitled to set aside the plea bargain. (Id. at p. 987.) The 

court recognized the general rule that parties entering into plea 

agreements do not insulate themselves from changes in the law 

that the Legislature or the electorate intended to apply to them. 

(Id. at p. 991.) “The [pertinent] question is whether the 

electorate intended the change to apply to the parties to this plea 

agreement.” (Ibid.) Based on Proposition 47’s “unambiguous 

language” stating that it applies to defendants convicted by plea, 

and its expressed intent to reduce the number of nonviolent 

offenders in prisons, the court concluded that the electorate 

intended to modify the terms of plea agreements without 

affording the People the option to withdraw from the agreement. 

(Harris, at p. 992.)
10

Section 1473.7 clearly applies to plea agreements. 

(§ 1473.7, subd. (e)(3).) However, unlike the misdemeanor 

reduction at issue in Harris, the “change” that section 1473.7 

provides for is a mechanism to allow an out-of-custody defendant 

to seek to vacate a conviction or sentence and to withdraw the 

plea itself. (§ 1473.7, subds. (a), (e).) Harris, which addressed 

the question of whether the prosecution was entitled to withdraw 

from a plea agreement, is therefore inapposite. (Harris, supra, 

1 Cal.5th at pp. 992–993.) Moreover, when a defendant 

successfully withdraws a plea, the case is generally restored to 

the position it was in before the parties entered into the plea 

deal, including the revival of any charges dismissed pursuant to

the bargain. (In re Sutherland (1972) 6 Cal.3d 666, 671–672; 

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258; 

People v. Aragon (1992) 11 Cal.App.4th 749, 760.) The 

Legislature is presumed to have known of this rule (Estate of 

McDill (1975) 14 Cal.3d 831, 839), yet section 1473.7 does not 

require a court to dismiss the matter after the movant 

successfully vacates a conviction and withdraws his or her plea. 

Because Harris is not on point and Vaca fails to point to anything 

showing legislative intent to require dismissal of the case after 

vacatur of a conviction and withdrawal of a plea, we are 

unpersuaded by Vaca’s interpretation of section 1473.7. 

Our construction of section 1473.7 is supported by the 

Legislature’s purpose in enacting the statute. Before section 

1473.7 became effective in 2017 (Assem. Bill No. 813 (Stats. 2016, 

ch. 739, § 1)), Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) 
11

held that defense attorneys have a Sixth Amendment duty to 

accurately explain to their clients the deportation or removal

risks associated with a guilty plea. (Id. at pp. 367–368, 373–374.) 

Thereafter, in-custody defendants could pursue habeas relief for 

counsel’s failure to inform them of the immigration consequences 

of a plea, but this relief was not available to an out-of-custody 

defendant. (People v. Fryhaat (2019) 35 Cal.App.5th 969, 977, 

981 (Fryhaat).) And, while there is no custody requirement for a 

motion to withdraw a guilty or no contest plea under section 

1016.5, such a motion may only be brought by a diligent movant 

on the ground that the court failed to provide an admonition 

regarding the possible immigration consequence of the plea. 

(§ 1016.5, subd. (b); People v. Superior Court (Zamudio) (2000) 

23 Cal.4th 183, 204; People v. Totari (2003) 111 Cal.App.4th 

1202, 1206–1207; Fryhaat, at p. 981.) According to its legislative 

history, section 1473.7 “ ‘fill[ed] a gap in California criminal 

procedure’ ” (Fryhaat, at p. 976), and provided an out-of-custody 

defendant a means to challenge a conviction due to error affecting 

his or her ability to meaningfully understand the actual or 

potential immigration consequences of the conviction. (Id. at 

p. 981.) 

The relief afforded to a successful habeas petitioner 

claiming ineffective assistance due to failure to advise of a plea’s 

immigration consequences and to a successful movant under 

section 1016.5 is an opportunity to withdraw the plea and 

proceed to trial. (Padilla, supra, 559 U.S. at pp. 372–373 [“The 

nature of relief secured by a successful collateral challenge to a 
12

guilty plea—an opportunity to withdraw the plea and proceed to 

trial—imposes its own significant limiting principle: Those who 

collaterally attack their guilty pleas lose the benefit of the 

bargain obtained as a result of the plea”]; cf. In re Sutherland,

supra, 6 Cal.3d at pp. 671–672 [grant of habeas petition premised 

on invalid plea permits withdrawal of plea and revival of counts 

dismissed with plea]; People v. Murillo (1995) 39 Cal.App.4th 

1298, 1305 [vacatur of conviction and withdrawal of plea under 

section 1016.5 “returns the defendant to where he or she was 

before entering the plea . . . .”]; People v. Aragon, supra, 

11 Cal.App.4th at pp. 756, 760 [order vacating conviction and 

setting aside guilty plea after defendant served his probation 

term restores parties to positions occupied before plea bargain].) 

Given that the Legislature intended section 1473.7 to fill the gap 

left by the foregoing procedural avenues for relief, interpreting it 

uniquely to require dismissal after vacatur of a conviction and 

withdrawal of a plea would be at odds with the legislative intent

in enacting the statute.6 

6 In discussing the “gap” in then-existing law, the 

Legislature also noted that a person seeking to challenge a

conviction based on the “unawareness of the immigration 

consequences” of his or her plea could not petition for a writ of 

error coram nobis because the challenge “amounted to a claim of 

ineffective assistance of counsel, which is not reviewable by way 

of writ of coram nobis.” (Sen. Com. on Pub. Safety, Rep. on 

Assem. Bill No. 813 (2015-2016 Reg. Sess.) June 22, 2015, at 

p. 5.) A successful petitioner for a writ of error coram nobis, too, 

is afforded the remedy of “ ‘withdrawing his plea of guilty and of 

reassuming the situation occupied by him before plea of any kind 

was entered.’ ” (People v. Goodrum (1991) 228 Cal.App.3d 397, 

401.)
13

Finally, Vaca’s position is also undermined by the 

legislative history for Assembly Bill No. 1259 , which recently 

amended section 1473.7. (Stats. 2021, ch. 420, § 1.) A Senate 

Committee on Public Safety analysis of Assembly Bill No. 1259 

includes an explanation of the need for the bill from its author, 

summarizing the procedure provided by section 1473.7 as follows: 

“In 2016, A[ssemby] B[ill No.] 813 [ ] provided recourse . . . by 

creating a process for a defendant to present evidence of a legal 

defect in their criminal case [including that they failed to 

meaningfully understand or knowingly accept the immigration 

consequences of pleading to a specific crime that could later 

become grounds for detention or deportation] before the trial 

court. . . . [¶] If a court grants a motion to vacate based on this 

defect, the conviction is vacated and the person is eligible to enter 

a new plea, or, on the prosecutor’s petition, have the charges 

dropped altogether.” (Sen. Com. on Pub. Safety, Analysis of 

Assem. Bill No. 1259 (2021–2022 Reg. Sess.) June 22, 2021, p. 8, 

italics added.) This recognition of the prosecutor’s discretion to 

dismiss undermines Vaca’s construction of section 1473.7. (See 

Hutnick v. United States Fidelity & Guaranty Co. (1988) 

47 Cal.3d 456, 465, fn. 7 [it is reasonable to infer those who voted 

on a proposed measure read and considered materials presented 

in explanation of it, so legislative committee reports provide some 

indication of how measure was understood by those who enacted

it].) 

In sum, section 1473.7 does not require dismissal of the 

criminal information or complaint against a defendant who 
14

successfully moves to vacate his or her conviction or sentence and 

withdraws his or her plea thereunder. The trial court correctly 

denied Vaca’s request to dismiss the complaint under section 

1473.7.7

DISPOSITION

The order is affirmed.

BROWN, ACTING P. J.

WE CONCUR:

STREETER, J.

WHITMAN, J.

People v. Vaca (A164953)

7 In the section of Vaca’s opening brief arguing that the 

remedy afforded by section 1473.7 is dismissal, he makes the 

brief assertion that additional prosecution and punishment in his 

case would violate double jeopardy. This undeveloped argument

is forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179

[“Failure to provide proper headings forfeits issues that may be 

discussed in the brief but are not clearly identified by a 

heading”].)

 Judge of the Superior Court of California, County of 

Alameda, assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.
Trial Court: Napa County Superior Court

Trial Judge: Hon. Elia Ortiz

Counsel: Michael L. Poole, under appointment by the 

Court of Appeal, for Defendant and Appellant.

 

Rob Bonta, Attorney General, Lance Winters 

and Charles Ragland, Assistant Attorneys 

General, Melissa Mandel and Seth Friedman, 

Deputy Attorneys General for Plaintiff and 

Respondent.