Motion to Withdraw Plea Must Be Made in County of Sentencing, Not Residence—C.A.
Stratton Says That Transfer of Jurisdiction to Los Angeles Was
For Purpose of Overseeing Probation, Not Other Purposes
By a MetNews Staff Writer
A man who pled no contest in San Bernardino Superior Court to one count of assault by means likely to produce great bodily injury and was placed on three years formal probation, with jurisdiction then transferred to Los Angeles County where he resides, was obliged to make his motion to set aside the plea in San Bernardino, not here, the Court of Appeal for this district has held.
Thursday’s unpublished opinion affirms an order by Los Angeles Superior Court Judge Judith L. Meyer. She denied a motion by Eduardo Hernandez to withdraw his plea pursuant to Penal Code §473.7 on the ground that the immigration consequences of that plea were not explained to him.
Meyer advised Hernandez—whose probation has now terminated—to refile the motion in San Bernardino.
Penal Code §1203.9
Jurisdiction was shifted to Los Angeles County pursuant to Penal Code §1203.9 which provides, in subd. (a)(1), that a court “upon noticed motion, shall transfer the case” of a probationer “to the superior court in any other county in which the person resides permanently.”
At issue in the case was the intended scope of subd. (a)(3) of that code section which provides that “the court of the receiving county shall have full jurisdiction over the matter upon transfer.”
Presiding Justice Maria E. Stratton of Div. Eight wrote:
“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..”
Statute’s Sole Purpose
“[L]egislative 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.”
The presiding justice added:
“Notably, if a motion under section 1473.7 were granted and the plea were withdrawn, criminal proceedings would normally re-commence in the original county of prosecution.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.”
She said that there is an alternative basis for concluding that the motion may not be made other than in San Bernardino. When Hernandez’s term of probation ended, Stratton wrote, the defendant “reverted to the status of any other convicted person not on probation” and is therefore “is appropriately subject to the rules governing that demographic.”
The case is People v. Hernandez, B315243.
Following his conviction, Hernandez was deported, and illegally reentered the United States.
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