People v. Hernandez CA2/8

Filed 6/22/23 P. v. Hernandez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B315243
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA102181
v.
EDUARDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Justin Behravesh, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
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We address the intersection of Penal Code sections 1203.9
and 1473.7.1 Appellant invoked section 1203.9 so he could be
supervised on probation in the county where he permanently
resided, rather than in the county where he was convicted and
sentenced. Section 1203.9 allows “full jurisdiction” to be
transferred on motion by the probationer. Section 1473.7 permits
noncitizens to move to withdraw their pleas if they were unable
to meaningfully understand the immigration consequences of
those pleas. Appellant filed such a motion in the court of his
county of supervision, not conviction. The question presented is
whether section 1203.9 permits a probationer (or, as here, a
former probationer) to file a motion to withdraw plea in the
county of probation supervision, as opposed to the county of
conviction. We conclude, as did the trial court, that appellant
should have filed his motion to withdraw his plea in the county
where he was prosecuted, convicted, and sentenced. Accordingly,
we affirm the trial court.
FACTUAL BACKGROUND
On August 31, 2012, in San Bernardino County Superior
Court, appellant Eduardo Hernandez entered a no contest plea to
one count of assault by means likely to produce great bodily
injury. He was placed on three years formal probation. Shortly
after being placed on probation, appellant was deported. He later
illegally reentered the country. In 2014, his probation was
reinstated and on June 25, 2015, the sentencing court transferred
probation supervision and jurisdiction from San Bernardino
County to Los Angeles County, where appellant permanently
resided, pursuant to section 1203.9.
1 Undesignated statutory references are to the Penal Code.
2
On April 6, 2021, appellant filed a motion in Los Angeles
County Superior Court to vacate his plea pursuant to section
1473.7. By then he had already completed his probationary
sentence. On August 23, 2021, the trial court concluded it lacked
jurisdiction to hear appellant’s motion and directed him to refile
the motion in San Bernardino County Superior Court. This
timely appeal followed.
DISCUSSION
A. Standard of Review
Questions of statutory interpretation are reviewed de novo.
(People v. Prunty (2015) 62 Cal.4th 59, 71.) “The rules governing
statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory
interpretation is to ascertain and effectuate legislative intent.
[Citations.] To determine legislative intent, we turn first to the
words of the statute, giving them their usual and ordinary
meaning. [Citations.] When the language of a statute is clear,
we need go no further. However, when the language is
susceptible of more than one reasonable interpretation, we look
to 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
statutory scheme of which the statute is a part.” (Nolan v. City of
Anaheim (2004) 33 Cal.4th 335, 340, superseded by statute on
another ground in McCormick v. Public Employees’ Retirement
System (2019) 41 Cal.App.5th 428, 436.) If we construe a statute,
we must do so, if possible, to achieve harmony among its parts.
(People v. Partee (2020) 8 Cal.5th 860, 868; People v. Hull (1991)
1 Cal.4th 266, 272.) We may “ ‘ “neither insert language which
has been omitted nor ignore language which has been
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inserted.” ’ ” (See People v. National Automobile & Casualty Ins.
Co. (2002) 98 Cal.App.4th 277, 282.)
B. The Two Statutes
Section 1473.7 permits a noncitizen to move to withdraw a
plea where it is shown that error damaged the party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of the
plea. (§1473.7, subd. (a)(1).) The error must also be prejudicial.
(Ibid.) Showing prejudice under section 1473.7, subdivision (a)(1)
“means demonstrating a reasonable probability that the
defendant would have rejected the plea if the defendant had
correctly understood its actual or potential immigration
consequences.” (People v. Vivar (2021) 11 Cal.5th 510, 529.)
Section 1203.9 was originally enacted in 1935. (Stats.
1935, ch. 604, § 10.) Currently, subdivision (a)(1) provides:
“[W]henever a person is released on probation or mandatory
supervision, the court, upon noticed motion, shall transfer the
case to the superior court in any other county in which the person
resides permanently, with the stated intention to remain for the
duration of probation or mandatory supervision, unless the
transferring court determines that the transfer would be
inappropriate and states its reasons on the record.” (§1203.9,
subd. (a)(1).) Subdivision (a)(3) requires the transferring court to
determine the amount of restitution before the transfer or to
complete the determination as soon as practicable after the
transfer. “In all other aspects, except as provided in subdivision
(d) and (e), the court of the receiving county shall have full
jurisdiction over the matter upon transfer.” (Id., subd. (a)(3).)
Subdivision (b) provides that “the receiving county shall accept
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the entire jurisdiction over the case effective the date that the
transferring court orders the transfer.” (Id., subd. (b).)
In amending the statute in 2009, the Legislature directed
the Judicial Council to promulgate rules to implement section
1203.9. (Stats. 2009, ch. 588, § 1.) Those rules set out the factors
a transferring court must consider when determining whether
transfer is appropriate. These factors include (1) the permanency
of the supervised person’s residence; (2) the availability of
appropriate programs for the supervised person, including
substance abuse, domestic violence, sex offender, and
collaborative court programs; (3) whether transfer would impair
the ability of the receiving court to determine restitution
amounts or impair the ability of the victim to collect court-
ordered restitution; and (4) victim issues such as whether
transfer would impair the ability of the court to properly enforce
protective orders. (Cal. Rules of Court, rule 4.530(f).) The rules
provide that upon transfer, “the receiving court must accept the
entire jurisdiction over the case.” (Id., (g)(3).) “[T]he transferring
court must transmit the entire original court file to the receiving
court in all cases in which the supervisee is the sole defendant,”
or, in a case with multiple defendants, “certified copies of the
entire original court file.” (Id., (g)(5).) The probation officer of
the transferring county “must transmit, at a minimum, any court
orders, probation or mandatory supervision reports, and case
plans to the probation officer of the receiving county.” (Id.,
(g)(7).)
C. Analysis
Here, it is the meaning of subdivision (a)(3) of section
1203.9 which is at issue: “the court of the receiving county shall
have full jurisdiction over the matter upon transfer.” (§1203.9,
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subd. (a)(3).) The question is whether the phrase “full
jurisdiction” is meant to remove the authority of the original
sentencing court from everything associated with the case, or
whether “full jurisdiction” refers only to matters relating to the
probationary sentence.
We conclude that the phrase is ambiguous and the words of
the statute do not resolve the issue. Therefore, some legislative
history is in order to aid in interpreting the statute. Under the
original version of section 1203.9, courts could agree to perform
“courtesy supervision” of a probationer without accepting
jurisdiction over the probationer as well. (People v. Klockman
(1997) 59 Cal.App.4th 621, 626.) “Courtesy supervision” meant
the receiving court would monitor the individual’s progress on
probation and report that progress back to the original
sentencing court.2 If the terms and conditions of probation
needed to be modified, the original sentencing court retained
authority to make changes. If a probationer was in violation of
the terms of the grant of probation, the sentencing court handled
revocations, reinstatements, and termination of probation. Thus
two counties were involved in the probation process at the same
time.
The purpose of later amending section 1203.9 in 2009 was
to eliminate the concurrent jurisdiction of two counties over a
defendant on probation. (People v. Klockman, supra,
2 Courtesy supervision is “[s]upervision by the correctional
agency of one jurisdiction, of a person placed on probation by a
court . . . in another jurisdiction, by informal agreement between
agencies.” (U.S. Dept. of Justice, Bureau of Justice Statistics,
Dict. of Crim. Justice Data Terminology (2d ed. 1981) p. 58.)
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59 Cal.App.4th at p. 627.)3 Indeed, according to the history of the
amending legislation Senate Bill. No. 431, section 1203.9 was
amended to end the practice of informal courtesy supervision of
probationers. Under the heading “Need for This Bill,” the author
wrote: “Current law results in a significant risk to public safety
with thousands of adult probationers being supervised
ineffectively by Probation Departments outside of their County of
Residence. [¶] Under current law, California County Probation
Departments are responsible for the supervision of adult
offenders placed on probation by the Superior Court. Most of
those placed on probation reside in the County where the crime,
prosecution, and grant of probation occurred. This means that
the Probation Department supervises the Probationer residing in
the Probation Department’s geographical jurisdiction (County),
3 “The purpose of this bill is to require that (1) when a person
is released on probation, the sentencing court shall transfer the
entire jurisdiction of the case to the county in which that person
permanently resides, unless the court determines on the record
that the transfer would not be appropriate; (2) the county of the
probationer’s residence accept the entire jurisdiction over the
case, unless that county determines the probationer does not
intend to reside within the county throughout the period of
probation; (3) these same provisions be applied to cases where the
person is placed on probation for the purpose of drug treatment,
pursuant to Proposition 36; and (4) the Judicial Council adopt
rules providing factors for the court’s consideration when
determining the appropriateness of transfer.” (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 431 (2009–2010 Reg.
Sess.) as amended April 22, 2009, pp. 1–2.) “In essence, this bill
would eliminate the option for the receiving county of accepting
the probationer on ‘courtesy supervision’ without accepting full
jurisdiction over the case.” (Id. at p. 5.)
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which facilitates probation monitoring and supportive services
that promote public safety. [¶] However, thousands of adult
probationers reside in a different County than the probation
department responsible for their supervision. Some of these
adult probationers are concurrently under the wasteful,
duplicative probation supervision of multiple probation
departments. Probation departments do not have the capacity to
provide for effective supervision of adult probationers living in
other counties. [¶] SB 431 would establish the Probation
Department of the adult probationer’s County of residence as the
Probation Department responsible for probation supervision.”
(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 431, supra,
as amended April 22, 2009, com. pp. 4–5.) The author went on:
“One aspect of current law that has apparently resulted in
inconsistent practices in different counties is the fact that
‘courtesy supervision’ is not defined. This leaves some ambiguity
over which county may issue a warrant for the probationer’s
arrest if he or she is found to be in violation of the terms and
conditions of probation. [¶] The sponsors acknowledge that there
is not unanimity of opinion among counties over how to resolve
this issue. Some counties do not want to accept cases involving
their residents who are convicted of crimes in other counties.
Other counties do not want to relinquish authority over persons
convicted and sentenced in their courts to the probationer’s
county of residence. As to the latter concern, the bill allows the
sentencing court to retain jurisdiction if it makes findings on the
record that transfer would be inappropriate.” (Id. at pp. 5–6.)
The Report of the Assembly is more elucidating.
“Elimination Courtesy Supervision: Under current law, when a
defendant is granted probation he or she is placed on probation in
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the county where the conviction occurred. In most cases, this
rule makes perfect sense. However, when the offense occurs in a
county in which the defendant does not intend to permanently
reside, a number of problems occur. As a general rule,
defendants placed on probation are expected to participate in
programs, treatment, community service and generally work
when appropriate. If the defendant permanently resides in a
county other than the county in which he or she was convicted,
requiring him or her to participate in probation in the county of
conviction is counter-productive. [¶] Currently, the county in
which the defendant was convicted maintains jurisdiction over
the probationer during the period of probation. However, the
attorney for the defendant or the county probation department
may require a ‘courtesy supervision’ of the defendant’s county of
permanent residence while he or she is on probation. Under this
loosely defined ‘courtesy supervision’ system, the county where
the defendant was convicted maintains jurisdiction over the
defendant, but he or she is allowed to return to the county of
permanent residency and is, in fact, monitored by the probation
department in the county of residence. [¶] There are no uniform
rules for the accepting or granting of ‘courtesy supervision’ by the
county of permanent residence. The county of residence has sole
authority to accept or deny the transfer for any reason. [¶] This
bill eliminates the need for courtesy supervision by requiring that
the county of permanent residence accept the transfer of
jurisdiction upon that counties permanent residence for the
period of probation.” (Assem. Com. on Public Safety, Rep. on Sen.
Bill No. 431 (2009–2010 Reg. Sess.) as amended June 4, 2009,
com. p. 3, italics added; People v. Adelmann (2018) 4 Cal.5th
1071, 1080.)
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As the legislative history sets out, “this bill creates a
uniform rule that will require a county to accept jurisdiction over
a probationer who permanently resides in that county, whether
or not the defendant was convicted in the county of permanent
residence. This will aid a defendant in the successful completion
of probation and re-integration into the community in which he
or she intends to permanently reside. A probationer
participating in the rehabilitation program will do so in his or her
own home county. An offender required to work while on
probation will be employing himself or herself in the county in
which he or she intends to permanently reside. A probationer
will not have to relocate to the county in which he or she
committed the offense and then relocate again at the conclusion
of probation to return to his or her county of permanent
residence.” (Assem. Com. on Public Safety, Rep. on Sen. Bill
No. 431, supra, as amended June 4, 2009, com. p. 3.)
This legislative history persuades us that section 1203.9
was enacted solely to effectuate more streamlined and effective
supervision of probationers statewide by ensuring that the court
of their county of residence is empowered to supervise and
adjudicate issues arising as a result of the probationary grant. It
was not intended to disempower the sentencing court from all
post-sentencing issues that may arise as a result of the conviction
and sentence.
Next, we turn to section 1473.7 for interpretative
assistance. This statute does not specify where a motion to
withdraw the plea must be filed. Generic motions to withdraw
pleas are generally heard by the original trial court. (People v.
Batt (1994) 24 Cal.App.4th 1044, 1048 [motion to withdraw a plea
must be heard by the same court.]; People v. Valdez (1995)
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33 Cal.App.4th 1633, 1638 [“same court” does not mean same
judicial officer].)
Notably, if a motion under section 1473.7 were granted and
the plea were withdrawn, criminal proceedings would normally
re-commence in the original county of prosecution. In our view,
that alone would dictate that the motion be filed in the county
where the charges were originally filed. There is no point in
starting the section 1473.7 process in one county only to have the
re-commenced prosecution finish in another county. Neither
judicial economy nor equity is fostered by such a bifurcation of
labor.
A motion presented under section 1473.7 is completely
disconnected from the post-sentencing status of the moving party.
It is focused on what happened at and around the time the plea
was taken. The original prosecuting agency is most
knowledgeable to present the People’s position on the motion,
given its familiarity with the facts of the case and any county-
specific or case-specific plea procedures that might bear on the
adjudication of the motion. The original court would also be best
positioned to evaluate the arguments of both parties given its
knowledge of local practices and customs, to the extent
adjudication of the motion requires such analysis. And if former
defense counsel, the former prosecutor, and the original judicial
officer who presided over the plea and sentencing are still
available, common sense dictates that their familiarity with the
circumstances surrounding the plea would properly inform the
disposition of the motion.
Nonetheless, appellant argues that section 1203.9
supersedes section 1473.7 and confers full jurisdiction over all
aspects of the criminal case ad infinitum. This notion of
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everlasting jurisdiction over all issues arising from the conviction
does not comport with the legislative history cited above, which
conferred “jurisdiction” in the receiving court for the purpose of
ensuring effective, non-duplicative, and efficient probation
supervision. Once probation supervision terminates, jurisdiction
under section 1203.9 should end as well. Indeed, the Assembly
report set out above makes reference to jurisdiction being
transferred for the “period of probation.” This supports the
notion that the legislation was all about probation supervision
and nothing else. There is no reason, given the purpose of the
statute, for the provisions of section 1203.9 to control the validity
of the underlying conviction itself.
As set out above, despite its “full jurisdiction” language,
section 1203.9 itself reserves calculation of restitution to the
original sentencing court. (§ 1203.9, subd. (a)(3).) “Full
jurisdiction,” then, is not full. It also governs transfers only for
persons intending to “remain for the duration of probation.” (Id.,
subd. (a)(1).) This is another indication that “full jurisdiction”
was intended to apply to all issues arising out of out-of-county
supervision and nothing else.
Pertinently, section 1203.9 does not govern other
challenges to final convictions. For example, section 1054.9 post-
conviction discovery motions must be filed in the trial court which
rendered the underlying judgment, even though, as with section
1473.7, there is no specific jurisdictional provision. (In re Steele
(2004) 32 Cal.4th 682, 691.) Where, as here, the motion is so tied
to what occurred in the original prosecution of the charges, the
involvement of the original trial court has been deemed too
significant to ignore. (Id. at p. 692.)
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The same is true for section 1473.7 motions challenging the
validity of convictions by plea. These motions are too tied to the
facts, decisions, circumstances, and people involved in the
original prosecution to be transferred to an uninvolved trial court
just because that court happened to supervise the moving party’s
probationary term. (See People v. Vivar, supra, 11 Cal.5th at
pp. 527–534.)
Finally, that appellant had completed probation when he
filed the motion is an alternative ground for rejecting his
contention that section 1203.9 must control jurisdiction. Section
1203.9 was meant to streamline the process of supervising
probationers who do not reside permanently in the county of
conviction. There is no evidence that it was also meant to upend
the original trial court’s jurisdiction over non-probation aspects of
a conviction and sentence. When appellant’s probation
supervision ended, he reverted to the status of any other
convicted person not on probation. As such, he is appropriately
subject to the rules governing that demographic.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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