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Filed 12/2/14

TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE APPELLATE DIVISION OF THE SUPERIOR COURT

COUNTY OF FRESNO, STATE OF CALIFORNIA

THE PEOPLE,

 Plaintiff and Respondent,

 v.

RAFAEL ESPINOZA, 

 Defendant and Appellant.

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Case Nos. 2448 & 2449

(Fresno Superior Court, Dept. 

95, Nos. F98918404-5 &

F98914875-0)

OPINION

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I.

PROCEDURAL BACKGROUND

Twice convicted by plea of misdemeanor domestic-violence 

charges 14 years prior, appellant requested the trial court grant 

him relief under Penal Code section 1385.1 The trial court 

declined his request, ruling that it no longer had jurisdiction to 

act under the statute. Appellant now brings these appeals from the 

trial court’s orders denying his invitation to dismiss his 

misdemeanor convictions. We have consolidated his appeals for 

purposes of decision. We agree the trial court could not grant 

 

1 All further references are to the Penal Code unless otherwise noted.
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relief under section 1385, and we thus affirm.

Appellant pled guilty to one misdemeanor count of violating 

section 273.5 in 1998 (Case No. 2449) and no contest to one 

misdemeanor count of violating that same section in 1999 (Case No. 

2448). He received suspended sentences of three years of 

probation for both offenses. Probation terms were never formally 

revoked and they expired on October 21, 2001, and January 20, 

2002.

In 2011, appellant, a noncitizen, came to the attention of 

immigration authorities, who began detention proceedings. On 

September 17, 2013 appellant filed a “Motion to Dismiss Pursuant 

to Penal Code section 1385” in each Superior Court case. In the 

motions he contended that the trial court had the authority 

pursuant to section 1385 to dismiss his convictions for violating 

section 273.5 in the interests of justice. The motions were heard 

together on November 21, 2013, and denied by the trial court on 

the grounds it lacked jurisdiction to act under section 1385 as 

requested.

In these appeals, appellant contends that because section 

1385 contains no limiting language, nor does an enactment of the 

legislature extinguish the jurisdiction of the Superior Court over 

his misdemeanor cases, the trial court retained jurisdiction to 

vacate his guilty pleas and convictions subsequent to rendering 

judgment and imposing sentence. Thus, in his view, the trial 

court’s failure to exercise discretion under section 1385 is an 

abuse of discretion, and the appropriate relief on appeal is to 

remand the matter “in order that the trial court may exercise its 

discretion to determine whether underlying Penal Code section 
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273.5 charge[s] should be dismissed in the interest of justice.” 

We reject this contention.

II.

DISCUSSION

A. Standard of Review

The question before us is whether a trial court retains the 

ability to dismiss a conviction under section 1385 after it has 

become final. While we apply an abuse of discretion standard to a 

review a trial court's decision to deny relief under section 1385

(People v. Carmony (2004) 33 Cal.4th 367, 374-376), this 

application is premised on the court’s ability to grant relief 

under the statute. Thus, when the trial court’s decision is based 

on a ruling that it lacked post-judgment jurisdiction under a 

statute to grant the relief requested, the question involves 

statutory interpretation, a question of law which we review de 

novo. (In re Martinez (2012) 210 Cal.App.4th 800, 809.)

B. The Trial Court Properly Denied Relief Under Section 1385

Section 1385, subdivision (a), in relevant part, provides 

“[t]he judge or magistrate may, either of his or her own motion or 

upon the application of the prosecuting attorney, and in 

furtherance of justice, order an action to be dismissed.” Section 

1385 contemplates only dismissal of criminal actions, or a part 

thereof (People v. Hernandez (2000) 22 Cal.4th 512, 521-522, 523, 

524), but not sentencing factors or historical facts (In re 

Varnell (2003) 30 Cal.4th 1132, 1137). While the statute has 

potentially broad application, the California Supreme Court has 

cautioned that a trial court’s power “is by no means absolute.” 

(People v. Orin (1975) 13 Cal.3d 937, 945.) 
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Indeed, the Legislature can expressly restrict a trial 

court’s discretion to dismiss under the statute. (People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497, 518 (Romero).) 

Moreover, “[a]lthough the discretion of a trial judge to dismiss a 

criminal action under Penal Code section 1385 in the interests of 

justice ‘may be exercised at any time during the trial, including 

after a jury verdict of guilty’ [citation], this statute has never 

been held to authorize dismissal of an action after the imposition 

of sentence and rendition of judgment. [Citation.]” (People v. 

Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8. (Barraza).) “Use of 

section 1385 in that manner would be inconsistent with the Supreme 

Court’s strict focus on the language of the statute.” (People v. 

Kim (2012) 212 Cal.App.4th 117, 122 (Kim).)

Appellant first argues that it would be “inconsistent, and 

defy logic” to permit a court to dismiss an action under section 

1203.4, but to prevent it from dismissing that same action under

section 1385. This result is neither inconsistent nor illogical. 

Section 1203.4 specifically grants the trial court continuing 

jurisdiction to act after a defendant’s conviction has become 

final, by service of his or her sentence. Section 1385 does not 

grant the trial court this jurisdiction.

Appellant’s argument would seemingly render nugatory sections 

1203.4, 1203.4a, 4852.01 (certificate of rehabilitation and pardon

in felony matters), and California Constitution, article V, 

section 8 (Governor’s pardon authority). None of these statues or 

powers would be needed if a trial court perpetually maintained the 

ability to make a conviction simply disappear under section 1385.

We will restrictively interpret section 1385 “where there is a 
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statutory scheme designed to effect a particular result and where 

the invocation of section 1385 would nullify that result.” (People 

v. Luckett (1996) 48 Cal.App.4th 1214, 1219.)

Moreover, the power to eliminate a conviction under section 

1385 as envisioned by appellant would be more expansive and 

enduring than that granted under section 1016.5, or petitions for 

writ of habeas corpus, coram nobis, and mandate – none of which 

are available to appellant. (See People v. Villa (2009) 45 Cal.4th 

1063, 1072-1074; People v. Kim (2009) 45 Cal.4th 1078, 1099; 

People v. Shokur (2012) 205 Cal.App.4th 1398, 1406-1407.)

Appellant claims that these cases are inapposite because he is not 

bringing petitions for habeas corpus, coram nobis, or a 

nonstatutory motion, and these cases do not address or foreclose 

section 1385 relief. We do not believe section 1385 can be 

construed as a stop-gap statute meant to address cases where all 

other forms of post-judgment relief might fail. Instead, relief 

under section 1385 must be sought promptly while there is still an 

on-going action or pending proceeding.

As our Supreme Court explained in People v. Picklesimer

(2010) 48 Cal.4th 330, 337:

‘There is no statutory authority for a trial court to 

entertain a postjudgment motion that is unrelated to any 

proceeding then pending before the court. [Citation.] 

Indeed, a motion is not an independent remedy. It is 

ancillary to an on-going action and “‘implies the pendency 

of a suit between the parties and is confined to 

incidental matters in the progress of the cause. As the

rule is sometimes expressed, a motion relates to some 

question collateral to the main object of the action and 

is connected with, and dependent on, the principal 

remedy.’” [Citation.] In most cases, after the judgment 

has become final, there is nothing pending to which a 

motion may attach.' [Citation.]
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Picklesimer acknowledged there were some exceptions to this 

rule: 

These exceptions generally arise in instances where the 

Legislature has expressly authorized such a motion. (See, 

e.g., § 17, subd. (b)(3) [motion to reduce a ‘wobbler’ to 

a misdemeanor]; § 1016.5, subd. (b) [motion to vacate 

judgment and withdraw a plea based on the immigration 

consequences of the plea]; § 1203.4 [motion by probationer 

to vacate plea and dismiss charges]; § 1473.6 [motion to 

vacate judgment based on newly discovered evidence of 

fraud].)

(Id. at p. 337, fn. 2.)

Here, we see nothing in section 1385 that expressly grants the 

trial court post-judgment jurisdiction to dismiss a long-final 

conviction.

Appellant also argues that because his matters were probation 

cases, the trial court retained jurisdiction under section 1385. 

This is because the “matter remained a viable action as there 

remained legal remedies which the law of the State of California 

permitted [the trial court] to grant or deny,” and he gives as an 

example jurisdiction to dismiss under section 1203.4. This 

argument, however, ignores the fact that section 1203.4 

specifically confers limited jurisdiction over a probationary 

case, once probation has terminated, either by operation of law or 

by order of the court. That jurisdiction extends solely to grant 

relief of dismissal in an appropriate case. Such a dismissal does 

not make the conviction disappear and it is not considered an 

“expungement” under either California law (People v. Frawley

(2000) 82 Cal. App. 4th 784, 790-791) or federal immigration law 

(Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1175). 

Section 1385, however, wipes a defendant’s record clean and “[t]he 
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defendant stands as if he had never been prosecuted for the 

charged offense.” (People v. Superior Court (Flores) (1989) 214 

Cal.App.3d 127, 136.)

Case law affirms our view that a trial court lacks postjudgment jurisdiction to dismiss a final conviction under section 

1385. In Kim, supra, 212 Cal.App.4th 117, the trial court granted 

defendant’s post-judgment request to dismiss his long final 

convictions, under section 1385, so that defendant could avoid the 

adverse immigration consequences of that conviction. The 

reviewing court reversed, holding “a trial court has no authority 

to dismiss an action after judgment has been imposed and the 

defendant has served his or her sentence.” (Id. at p. 119.)

Appellant seeks to distinguish Kim on the basis that it involved a 

prison sentence, and not a grant of probation. In our view, this

is a distinction without a difference. 

Appellant relies on People v. Orabuena (2004) 116 Cal.App.4th 

84 (Orabuena) to bolster his claim. In Orabuena, the issue was 

whether the trial court, having granted probation, could dismiss a 

misdemeanor conviction, for purposes of granting defendant 

probation under Proposition 36. The reviewing court concluded 

that in the procedural posture of that case, the trial court could 

dismiss that conviction. The defendant had admitted a misdemeanor 

Vehicle Code violation early in the proceedings and was granted 

probation as to that count, and it was several months later that 

he pled no contest to two drug charges. However, the Vehicle Code 

conviction precluded a grant of Proposition 36 probation. (Id. at 

pp. 89-90.) On appeal, defendant argued the trial court had the 

ability under section 1385 to dismiss the Vehicle Code conviction 
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and abused its discretion when it did not do so.

Orabuena concluded defendant was correct:

In our view, the fact that the court had suspended imposition 

of sentence and ordered defendant to probation on the 

misdemeanor Vehicle Code section 14601 conviction before it 

ordered defendant to probation on the nonviolent drug 

offenses does not preclude the court from exercising its 

authority under section 1385 to dismiss the disqualifying 

misdemeanor conviction in the furtherance of justice so that 

defendant may become eligible for sentencing under 

Proposition 36.

(Orabuena, supra, 116 Cal.App.4th at p. 98.)

In Orabuena, however, the defendant had not completed his 

probationary term; the order granting probation suspended the 

imposition of the defendant’s sentence. (Orabuena, supra, 116 

Cal.App.4th at p. 97.) Orabuena stated: 

“While we do not quarrel with ... Barraza, it does not 

apply to this case since the court had not rendered 

judgment or sentenced defendant. As noted previously, 

imposition of sentence ... was suspended and defendant was 

ordered to probation.... In such cases, no judgment has 

been entered and no sentence has been imposed. 

[Citation.]”

(Ibid., fn. omitted.)

The Orabuena court held it therefore still had jurisdiction to 

act. Here, however, appellant’s probationary terms expired more 

than ten years ago. The trial court simply did not have 

jurisdiction to act under section 1385. Appellant’s cases were 

final more than ten years ago and there is nothing - no on-going 

action or pending proceeding - which makes his cases subject to

section 1385 relief.

To further his jurisdictional arguments, appellant contends

that “[j]udgment was never imposed in the instant action[s]. 

Rather it was suspended.” This is an incorrect statement of the 
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law. “Where, as here, the probationary period expires without 

revocation, the order granting probation must be considered the 

final judgment under the provisions of section 1237, subdivision 

(a) [i.e., the final judgment of conviction].” (People v. Chandler

(1988) 203 Cal.App.3d 782, 787; see also §§ 1191, 1201; People v. 

Ibanez (1999) 76 Cal.App.4th 537, 543 [“In a criminal case, 

judgment is rendered when the trial court ... pronounces 

sentence].) 

Appellant next relies on language in Romero, supra, 13 

Cal.4th 497, for the proposition that the literal language of 

section 1385 does not limit when a court may exercise its 

discretion to order an action dismissed in the furtherance of 

justice. While this is true, the Romero court clearly did not 

contemplate or authorize post-judgment dismissals. First, the 

issue in Romero was whether a court could, on its own motion, 

strike prior felony conviction allegations in cases arising under 

the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.) It 

did not consider the trial court’s ability to dismiss a conviction 

after judgment had been entered, sentence had been imposed and 

served, and the judgment was final. It is axiomatic that a case 

cannot be considered authority for a proposition it does not 

consider. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)

Second, Romero recognized section 1385 relief did not exist postjudgment, by noting that “it is well established that a court may 

exercise its power to strike under section 1385 ‘before, during or 

after trial,’ up to the time judgment is pronounced.” (Romero, 

supra, 13 Cal.4th at p. 524 fn. 11 (emphasis added), citing People 

v. Orin, supra, 13 Cal.3d at p. 945; People v. Superior Court
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(Howard) (1968) 69 Cal.2d 491, 505.) Accordingly, Romero provides 

no support for appellant’s position.

III.

DISPOSITION

The orders denying appellant’s request to dismiss pursuant to 

section 1385 are affirmed. 

Dated this 2

nd day of December, 2014

_____________________________________

Hon. F. Brian Alvarez

Judge 

We Concur:

_____________________________________

Hon. Donald S. Black

Presiding Judge, Appellate Division of 

the Fresno Superior Court

_____________________________________

Hon. W. Kent Hamlin

Judge
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APPEAL from a judgment of the Fresno Superior Court, 

Department 95, David Gottlieb, Judge.