People v. Vaca ( 2023 )

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,
A164953
v.
JORGE VACA, (Napa County
Super. Ct. No. CR179098)
Defendant and
Appellant.
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 &
All further references are to the Penal Code unless
1
otherwise stated.
1
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.
2
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.
3
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
4
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
5
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
6
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).)
7
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.)
8
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.)
9
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)
10
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
11
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.)
12
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
13
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.
14
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.