A trial court has broad power to dismiss an action against a criminal
defendant in “furtherance of justice” under Penal Code section 1385.1 (§ 1385,
subd. (a) [“The judge or magistrate may . . . in furtherance of justice, order an
action to be dismissed.”].) A somewhat different kind of relief is available under
section 1203.4, which permits eligible defendants to obtain dismissal of
accusations after completing probation. (§ 1203.4, subd. (a) [providing in relevant
part that an eligible defendant “shall, at any time after the termination of the
period of probation . . . be permitted by the court to withdraw his or her plea of
guilty or plea of nolo contendere . . . [and] the court shall thereupon dismiss the
accusations or information against the defendant”].) After pleading no contest to
criminal charges in 2005 and completing probation, appellant Lorenzo Chavez
now seeks dismissal of his convictions under Penal Code section 1385, but not
under section 1203.4. To justify his request for dismissal under section 1385,
All further undesignated statutory references are to the Penal Code.
Chavez claims he received ineffective assistance of counsel and was therefore
unaware of the immigration consequences of the plea he entered eight years
earlier. He asks the court, in the interests of justice, to remedy this wrong and
expunge his record.
Under section 1385, Chavez can make this request at any time before the
trial court places him on probation following imposition of a suspended sentence.
In this case, however, Chavez’s term of probation had expired before he invited
the court to provide relief. So we must resolve whether section 1385 confers
authority on a trial court to dismiss an action after probation is completed, and
whether the authority conferred by section 1385 is circumscribed by section
What we hold is that a trial court exceeds the authority conferred by section
1385 when it dismisses an action after the probation period expires. Under well-
established case law, a court may exercise its dismissal power under section 1385
at any time before judgment is pronounced — but not after judgment is final.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524, fn. 11 (Romero).
Yet in the case of a successful probationer, final judgment is never pronounced,
and after the expiration of probation, may never be pronounced. To address this
situation, we extend Romero by concluding that section 1385’s power may be
exercised until judgment is pronounced or when the power to pronounce judgment
runs out. Because the trial court’s authority to render judgment ends with the
expiration of probation, the court has no power to dismiss under section 1385 once
probation is complete.
Accordingly, we affirm the judgment of the Court of Appeal, but on a
different rationale. We affirm the judgment because –– at least under the specific
terms of section 1385 –– the trial court lacked the power to dismiss the petitioner’s
convictions after he completed his probation.
In May 2005, Chavez pleaded no contest to charges that he offered to sell a
controlled substance and failed to appear after being released on his own
recognizance. The trial court suspended imposition of sentence and placed
Chavez on probation for four years, a term he successfully completed in 2009.
Nearly four years later, in March 2013, Chavez — claiming that he received
ineffective assistance of counsel — invited the court to exercise its authority under
section 1385 to dismiss his previous convictions in the interests of justice. The
court refused, stating that it was not aware of “any case holding that section 1385
authorizes a trial court to grant a motion to dismiss after probation has expired.”
(People v. Chavez (2016) 5 Cal.App.5th 110, 114 (Chavez).) The court stated that
it had authority to grant Chavez relief under section 1203.4, but as he did not make
his request under that section, the request must be denied.
Why he did not seek relief under section 1203.4 is something Chavez
sought to explain in his petition for review. Under prevailing interpretations of
relevant federal immigration law, dismissal under section 1203.4 is not understood
to erase a defendant’s conviction –– so such a dismissal would not have relieved
Chavez of negative immigration consequences. (See Nunez-Reyes v. Holder (9th
Cir. 2011) 646 F.3d 684, 689–690 [agreeing that “a first-time simple drug
possession offense expunged under a state rehabilitative statute is a conviction
under the immigration laws” (internal brackets omitted)]; People v. Park (2013
56 Cal.4th 782, 803 [describing section 1203.4 as “a rehabilitative provision that
rewards a person who has successfully completed probation”]; People v.
Vasquez (2001) 25 Cal.4th 1225, 1230 [section 1230.4 “ ‘does not purport to
render the conviction a legal nullity’ ”].) Chavez further maintained that to deny
him dismissal under section 1385 would deprive him of any avenue for relief.
Chavez is right that certain means for obtaining relief are out of his reach at
this time. In People v. Villa (2009) 45 Cal.4th 1063, 1066, we held that a
defendant who has finished his probation is “ineligible for relief by way of a writ
of habeas corpus.” Likewise, in People v. Kim (2009) 45 Cal.4th 1078, 1108–
1009 (Kim), we concluded that the defendant — “at this late date” many years
after his conviction — was “procedurally barred from obtaining relief by way of
coram nobis.” Chavez stands in similar stead to the defendants in Villa and Kim
and cannot pursue relief via either of these writs.
What we question is whether Chavez is correct in claiming he has no
avenue of relief other than section 1385. Chavez did not brief the effect of the
postconviction remedy afforded by section 1473.7. Section 1473.7, which came
into effect January 1, 2017, allows “[a] person no longer imprisoned or restrained”
to “prosecute a motion to vacate a conviction” if the conviction was invalid “due
to a 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 plea of guilty or nolo contendere.” (§ 1473.7,
subd. (a)(1).) While we take judicial notice of section 1473.7, we recognize that
neither Chavez nor the People briefed the applicability of the statute. So we
express no view on the scope of section 1473.7.
Without the benefit of briefing on section 1473.7 and without mentioning
that section, the Court of Appeal concluded that “section 1203.4 is the exclusive
method for a trial court to dismiss the conviction of a defendant who has
successfully completed probation.” (Chavez, supra, 5 Cal.App.5th at p. 113.) The
Court of Appeal reached this conclusion after analyzing the second issue presented
for our review — whether section 1203.4 eliminates the trial court’s power to
dismiss a case pursuant to section 1385 after the period of probation has ended.
The court answered that question in the affirmative, reasoning that in enacting —
and repeatedly revising — section 1203.4, the Legislature has “provided clear
legislative direction that the courts do not have authority under section 1385 to
grant the requested relief.” (Chavez, supra, 5 Cal.App.5th at p. 122.
What the Court of Appeal did not address is whether section 1385, by its
own terms, applies to probationers who have finished their probation.
Nonetheless, if a court is without power to dismiss under section 1385 irrespective
of the operation of section 1203.4, then we must affirm the appellate decision.
(See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 6
[noting occasions on which we have “addressed a dispositive issue not raised by
the parties below”]; McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784,
802 [“we will affirm the judgment on any ground properly supported by the
record”].) So we begin with this dispositive question.
To resolve whether trial courts have the power under section 1385 to
dismiss actions against defendants who have successfully completed probation, we
must analyze the interplay between section 1385 and the probation statutes. In so
doing, we consider the text of the statutes, “bearing in mind that our fundamental
task in statutory interpretation is to ascertain and effectuate the law’s intended
purpose.” (Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1246; accord
Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282,
293.) We assess not only “the ordinary meaning of the language in question” but
also “the text of related provisions, terms used in other parts of the statute, and the
structure of the statutory scheme.” (Larkin v. Workers’ Comp. Appeals Bd. (2015
62 Cal.4th 152, 157–158; accord Winn v. Pioneer Medical Group, Inc. (2016) 63
Cal.4th 148, 155–156.
In a system of separated powers, courts observe jurisdictional limits and
focus scarce judicial resources on deciding cases within the scope of their
authority. (See Lockyer v. City and County of San Francisco (2004) 33 Cal.4th
1055, 1068 [laying out “the classic understanding of the separation of powers
doctrine — that the legislative power is the power to enact statutes . . . and the
judicial power is the power to interpret statutes and to determine their
constitutionality”]; State Dept. of Public Health v. Superior Court (2015) 60
Cal.4th 940, 956 [emphasizing that courts are not authorized to “rewrite statutes”];
Carlson v. Green (1980) 446 U.S. 14, 36 [stating that within the federal context,
“Congress has broad authority to establish priorities for the allocation of judicial
resources in defining the jurisdiction of federal courts”].) The term “jurisdiction,”
however, carries two distinct meanings we must distinguish in resolving this case.
One refers to ordinary acts in excess of jurisdiction. The other concerns so-called
“fundamental” jurisdiction, the quality that dictates whether a court has any power
at all to resolve a case.
Fundamental jurisdiction is, at its core, authority over both the subject
matter and the parties. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d
280, 288 [“Lack of jurisdiction in its most fundamental or strict sense means an
entire absence of power to hear or determine the case, an absence of authority over
the subject matter or the parties.”]; People v. Ford (2015) 61 Cal.4th 282, 286
(Ford) [same]; Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339
(Kabran) [same].) When a court lacks fundamental jurisdiction, its ruling is void.
A claim based on a lack of fundamental jurisdiction may be raised at any point in a
proceeding, including for the first time on appeal. (Ford, supra, 61 Cal.4th at p.
286, citing People v. Lara (2010) 48 Cal.4th 216, 225; Kabran, supra, 2 Cal.5th at
p. 339 [same].) The ability to lodge objections against a court’s fundamental
jurisdiction late in the proceeding is a consequence of the fact that such
jurisdiction cannot be conferred by acts or omissions of the parties. (Kabran,
supra, 2 Cal.5th at p. 339.
Even when there’s no question that a court’s action is well within the scope
of its fundamental jurisdiction, the court may still exceed constraints placed on it
by statutes, the constitution, or common law.2 (Ford, supra, 61 Cal.4th at pp.
286–287.) When a trial court fails to act within the manner prescribed by such
sources of law, it is said to have taken an ordinary act in excess of jurisdiction.
(Id. at p. 287.) Such “ordinary” jurisdiction, unlike fundamental jurisdiction, can
be conferred by the parties’ decisions –– such as a decision not to object to any
perceived deficiency –– and so is subject to defenses like estoppel, waiver, and
consent. (Ibid.; Kabran, supra, 2 Cal.5th at p. 340.) In this case, we are
concerned not with a court’s fundamental jurisdiction to act at all once defendant’s
probation has expired, but with the court’s authority to act under a particular
Specifically, we are concerned with a trial court’s authority under section
1385 to dismiss an action after the probation is complete. What section 1385
provides, in pertinent part, is that “[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.” (§ 1385, subd. (a).
Section 1385 thus “authorizes the trial court to order the dismissal of a criminal
action.” (People v. Hernandez (2000) 22 Cal.4th 512, 521, italics removed
Nothing in the statute suggests the court can carry out such a dismissal
when the action is no longer before the court. (See People v. Espinoza (2014) 232
On the other hand, when a court acts within the boundaries prescribed by
law, it necessarily possesses fundamental jurisdiction.
Cal.App.4th Supp. 1, 6 (Espinoza) [“relief under section 1385 must be sought
promptly while there is still an ongoing action or pending proceeding”].) It is for
this reason that our courts — and the parties here — agree that section 1385 does
not allow a trial court to act after a judgment has become final. (See id. at p. Supp.
7 [“a trial court lacks postjudgment jurisdiction to dismiss a final conviction under
section 1385”]; People v. Kim (2012) 212 Cal.App.4th 117, 122 [ruling that the
“[u]se of section 1385” to vacate “a long since final judgment of conviction”
“would be inconsistent with the Supreme Court’s strict focus on the language of
the statute”]; People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8 [stating that
section 1385 “has never been held to authorize dismissal of an action after the
imposition of sentence and rendition of judgment”]; accord People v. Orabuena
(2004) 116 Cal.App.4th 84, 97–98 (Orabuena) [finding that the court may
exercise its dismissal authority under section 1385 because “the court had not
rendered judgment or sentenced defendant”].) While these decisions underscore
the limits on a court’s otherwise considerable powers under section 1385, they do
not settle a related question: Given that a grant of probation is not a final
judgment, when –– if ever, for purposes of section 1385 –– does a judgment
become final for a defendant who is granted and completes probation?
The answer lies in the probation statutes and our cases interpreting them.
Section 1203, subdivision (a) defines “probation” as “the suspension of the
imposition or execution of a sentence and the order of conditional and revocable
release in the community under the supervision of a probation officer.” Going as
far back as Stephens v. Toomey (1959) 51 Cal.2d 864, we have explained that
neither forms of probation — suspension of the imposition of sentence or
suspension of the execution of sentence — results in a final judgment. In a case
where a court suspends imposition of sentence, it pronounces no judgment at all,
and a defendant is placed on probation with “no judgment pending against [him].”
(Id. at pp. 871–872.) In the case where the court suspends execution of sentence,
the sentence constitutes “a judgment provisional or conditional in nature.” (Id. at
pp. 870–871.) The finality of the sentence “depends on the outcome of the
probationary proceeding” and “is not a final judgment” at the imposition of
sentence and order to probation. (Id. at p. 871.) Instead of a final judgment, the
grant of probation opens the door to two separate phases for the probationer: the
period of probation and the time thereafter.
During the probation period, the court retains the power to revoke probation
and sentence the defendant to imprisonment. Sections 1203.2 and 1203.3
elaborate upon the fundamentally revocable nature of probation. Section 1203.3,
subdivision (a), for instance, provides that “[t]he court shall have authority at any
time during the term of probation to revoke, modify, or change its order of
suspension of imposition or execution of sentence.” (Italics added.) Similarly,
section 1203.2, subdivision (c) provides that the court may decide to revoke
release, terminate probation, and order that the person be delivered to custody.
(§ 1203.2, subd. (c) [“Upon any revocation and termination of probation . . . the
person shall be delivered over to the proper officer to serve his or her sentence,
less any credits herein provided for.”].) So, the court’s power to punish the
defendant, including by imposing imprisonment, continues during the period of
probation. (§ 15 [specifying imprisonment as one of the forms of punishment for
a public offense]; People v. Williams (1944) 24 Cal.2d 848, 853–854 [holding that
the judgment committing the defendant to custody was valid since “the order
revoking probation was made within the probationary period”]; see also, People v.
Banks (1959) 53 Cal.2d 370, 384–385 [“The powers of the court, over the
defendant and the cause, when it retains jurisdiction as provided by Penal Code,
sections 1203 through 1203.4, 1207, 1213, and 1215, are well nigh plenary in
character . . . .”].) Consistent with the court’s plenary power during the probation
period, it may dismiss a criminal action in the interests of justice through this
Once probation ends, however, a court’s power is significantly attenuated.
Its power to impose a sentence over the defendant ceases entirely — a result
embodying the ideal that a court may not dangle the threat of punishment over a
former probationer indefinitely. Such a possibility would raise both “serious due
process concerns” and fears of nullifying statutory provisions limiting the period
of probation. (See People v. Leiva (2013) 56 Cal.4th 498, 509, 517.) What’s
more, the court at that point may no longer revoke or modify its order granting
probation. (§ 1203.2, subd. (a) [specifying that the provision applies “[a]t any
time during the period of supervision”]; § 1203.3, subd. (a) [providing that the
court may exercise its authority “at any time during the term of probation”]; In re
Griffin (1967) 67 Cal.2d 343, 346 (Griffin) [listing cases holding that, after the end
of the probation period, “ ‘the court loses jurisdiction or power to make an order
revoking or modifying the order suspending the imposition of sentence or the
execution thereof and admitting the defendant to probation’ ”]; In re Daoud (1976
16 Cal.3d 879, 882 [“A probation order may be revoked or modified only during
the term of probation.”]; In re Bakke (1986) 42 Cal.3d 84, 89 (Bakke) [same];
People v. O’Donnell (1918) 37 Cal.App. 192, 197 [“When, therefore, the
legislature says, as it has said, that the order of suspension and probation may be
We note, however, that the nature and scope of section 1385 relief available
during a period of probation are separate questions from whether the power to
grant section 1385 relief exists at all. Just because a court may, in its discretion,
dismiss an action during the period of probation does not mean that its discretion
is unfettered. (E.g., People v. Orin (1975) 13 Cal.3d 937, 947 [“it would frustrate
the orderly and effective operation of our criminal procedure as envisioned by the
Legislature if without proper and adequate reason section 1385 were used to
terminate the prosecution of defendants for crimes properly charged in accordance
with legal procedure”]; People v. Williams (1998) 17 Cal.4th 148, 158–162 [listing
the various ways in which a court may abuse its discretion under section 1385].
revoked or modified during the term of probation, . . . the necessary implication is
that it was the legislative intention not to confer upon the court the right to
exercise that power after the time at which the period of probation has expired.”].
In particular, the court cannot extend the term of probation, change its conditions,
or otherwise subject the defendant to punishment in lieu of the successfully
completed probation. (People v. Howard (1997) 16 Cal.4th 1081, 1092 (Howard
[“Probation is neither ‘punishment’ (see § 15) nor a criminal ‘judgment’ (see
§ 1445).”]; People v. Mancebo (2002) 27 Cal.4th 735, 754 [“probation is not
In fact, section 1203.3 provides for automatic discharge at the end of the
probation term. (§ 1203.3, subd. (b)(3) [“In all probation cases, if the court has
not seen fit to revoke the order of probation and impose sentence or pronounce
judgment, the defendant shall at the end of the term of probation or any extension
thereof, be by the court discharged subject to the provisions of these sections.”];
People v. White (1982) 133 Cal.App.3d 677, 682–683 [“An order revoking
probation must be made within the period of time circumscribed in the order of
probation. Otherwise, the probationary period terminates automatically on the last
day.”]; People v. Smith (1970) 12 Cal.App.3d 621, 625 [same].) Without special
circumstances allowing for an extension,4 discharge from probation is mandatory
once the probation term expires. And, for good reason, the court loses its ability to
An extension beyond the end of the term of probation may occur in a case
where a party consents to a stay or continuance which extends the court’s power to
act to a later date. In such circumstances, the party may be estopped from
contesting the court’s jurisdiction at that later date. (Griffin, supra, 67 Cal.2d at
pp. 347–349; Bakke, supra, 42 Cal.3d at pp. 89–90; Ford, supra, 61 Cal.4th at pp.
288–289.) No such circumstances present themselves here. The People have not
consented to any indeterminate stay or continuance which would allow Chavez,
some four years after finishing probation, to move for relief under section 1385
without the People being able to raise a jurisdictional objection.
pronounce judgment on the defendant at this point. So, in effect, the answer to
when a judgment becomes final for a successful probationer is “never.” We
extend Romero’s logic to address such a situation. We hold that, at the point when
a court may no longer impose final judgment on a defendant, its authority for
granting him relief under section 1385 runs out.
We can reach this conclusion through an alternative route: by inferring
that, in the context of section 1385, the pendency of a criminal action continues
into and throughout the period of probation — when the court may still punish the
defendant — but expires when that period ends. (See § 683 [defining a criminal
action as a proceeding “by which a party charged with a public offense is accused
and brought to trial and punishment”]; People v. Picklesimer (2010) 48 Cal.4th
330, 337 (Picklesimer) [holding that a defendant may not seek relief in a case
where the People’s “criminal prosecution” of him was “long-since-final”].) And
because section 1385 confers a trial court with the power to dismiss only criminal
actions (or parts thereof) (Hernandez, supra, 22 Cal.4th at pp. 521–522), the court
acts in excess of the jurisdiction permitted by the statute when it purports to
effectuate a dismissal after the probation period has passed.
This conclusion aligns with past decisions relevant to the question before
us. In Espinoza, the defendant –– like Chavez — had pleaded guilty to criminal
charges, received suspended sentences, and successfully completed his probation
terms many years before he again came to the attention of the court. (Espinoza,
supra, 232 Cal.App.4th at pp. Supp. 3–4.) As is true of Chavez, Espinoza was a
noncitizen caught in the crosshairs of immigration laws. (Id. at p. Supp. 4.) When
the federal government began detention proceedings against him, Espinoza asked
the superior court to exercise its authority under section 1385 to dismiss his
convictions in the interests of justice. (Ibid.) The court denied the request on the
ground that it lacked jurisdiction to act under section 1385. (Ibid.
The appellate division of the superior court affirmed. (Espinoza, supra,
232 Cal.App.4th at pp. Supp. 4, 9.) It held that Espinoza’s convictions became
final when his “probationary terms expired more than 10 years ago.” (Id. at p.
Supp. 8.) As such, “[t]he trial court simply did not have jurisdiction to act under
section 1385.” (Ibid.) The court concluded that Espinoza’s “cases were final
more than 10 years ago and there is nothing — no ongoing action or pending
proceeding — which makes his cases subject to section 1385 relief.” (Ibid.;
accord Picklesimer, supra, 48 Cal.4th at p. 337 [making a similar point in the
context of a defendant who filed a motion for postjudgment relief and stating
“ ‘[t]here is no statutory authority for a trial court to entertain a postjudgment
motion that is unrelated to any proceeding then pending before the court’ ”].
The court in Espinoza pinpointed the juncture at which jurisdiction under
section 1385 ceases. It did so by distinguishing its finding from Orabuena on the
ground that Orabuena “had not completed his probationary term” whereas
Espinoza had. (Espinoza, supra, 232 Cal.App.4th at p. Supp. 8.) As such, the
ruling from Orabuena that a trial court may exercise its authority under section
1385 after it suspended imposition of sentence and ordered the defendant to
probation is consistent with the determination from Espinoza that the authority
eventually expires. (Compare Orabuena, supra, 116 Cal.App.4th at pp. 96–98
with Espinoza, supra, 232 Cal.App.4th at pp. Supp. 7–8.) And both Orabuena and
Espinoza are consistent with our holding that jurisdiction under section 1385
exists in the period before the completion of probation but ceases when that
probation term runs out.
In contrast, the parties before us advocate two distinct positions, each
somewhat extreme relative to our analysis. The People argue that the court’s
power to dismiss under section 1385 ends as soon as the court orders a grant of
probation because the criminal action terminates at that time. In support of this
contention, the People rely entirely on People v. Flores (1974) 12 Cal.3d 85
(Flores). Yet Flores is distinguishable. In Flores, the trial court “apparently
through inadvertence” failed to determine the degree of the crime at the time it
granted probation or at any other time. (Flores, supra, 12 Cal.3d at p. 93.) The
court’s error led the defendant to complain that “the degree of the crime must now
‘be deemed to be the lesser [second] degree.’ ” (Ibid.) Based on our reading of
section 1167, we agreed. What section 1167 provides is that “[w]hen a jury trial is
waived, the judge or justice before whom the trial is had shall, at the conclusion
thereof, announce his findings upon the issues of fact . . . .” (Italics added.) In a
case where imposition of sentence was suspended and the defendant was granted
probation, we reasoned that section 1167 “controls the timeliness of the
determination of the degree of the crime.” (Flores, supra, 12 Cal.3d at p. 95.
Within that specific context, we then concluded that, since an order granting
probation is a “ ‘final judgment’ from which an appeal may be taken,” “trial
proceedings were to be deemed concluded with the granting of that ‘final
judgment’ order.” (Ibid., italics added.
Seizing on this conclusion, the People contend that in Flores we determined
“proceedings did end with a probation grant” –– and this meaning of “proceeding”
applies to section 683’s definition of a “criminal action.” This contention fails to
persuade. As the People concede, we did not in Flores examine sections 683 or
1385. We were there analyzing section 1167, and section 1167 is concerned with
the conclusion of a bench trial, not an entire criminal action. (Compare § 1167
[addressing findings that must be made at the conclusion of a bench trial] with §
1385 [dealing with orders dismissing actions].) As is clear from the language of
section 683, a trial is only the penultimate step in a criminal action: a proceeding
in which an accusation is followed by a trial, followed by punishment. (§ 683
[“The proceeding by which a party charged with a public offense is accused and
brought to trial and punishment, is known as a criminal action.”].) Thus, that a
trial may end with a probation grant does not mean that a criminal action ends
there as well.
Moreover, the conclusion from Flores was premised on the limited finality
of an order granting probation. It is true that, under section 1237, an order
granting probation is deemed a “final judgment” for the purpose of taking an
appeal. (§ 1237, subd. (a).) We have explained, however, that such an order
“does not have the effect of a judgment for other purposes.” (People v. Superior
Court (Giron) (1974) 11 Cal.3d 793, 796; Howard, supra, 16 Cal.4th at p. 1087;
accord People v. Johnson (1955) 134 Cal.App.2d 140, 142–143 [“if the
probationary period expires without revocation, there can then be no formal
judgment, and the order granting probation under the provisions of Penal Code,
section 1237, must be considered as the final judgment” for the purpose of taking
an appeal under subdivision (b) of that section].) In Flores, we treated the order
granting probation as a final judgment for the purpose of pinning down “the
timeliness of the determination of the degree of the crime” because “[t]he degree
of a crime is  an issue of fact . . . reviewable on an appeal.” (Flores, supra, 12
Cal.3d at pp. 95, 94.) The rationale undergirding the result in Flores “must be
read in light of its narrow factual context.” (Howard, supra, 16 Cal.4th at p. 1092;
see People v. Parks (2004) 118 Cal.App.4th 1, 9 [confining Flores to creating “an
exception to the general rule stated in section 1167”]; People v. Martinez (1998
62 Cal.App.4th 1454, 1461–1462 [finding Flores “inapposite” when the issue was
not “whether the trial court’s failure to fix the degree of the defendant’s crime
required a finding that it was of a lesser degree”].) And that factual context — the
determination of the degree of a crime and its attendant statutory scheme — is not
Nor are we persuaded by the People’s notion that in granting probation, the
Legislature “expected . . . there would be no future ‘proceeding by which’
appellant would be punished.” On the contrary, by providing that a trial court may
“at any time during the term of probation  revoke, modify, or change its order”
(§ 1203.3, subd. (a)), the Legislature clearly indicates that it expects the court
sometimes to “punish” the defendant despite its original clemency in granting
probation. (Howard, supra, 16 Cal.4th at p. 1092 [stating that “courts deem
probation an act of clemency in lieu of punishment”].
At the other end of the spectrum, Chavez suggests that a criminal action
does not end even years after a defendant’s probation is finished. In fact, he
avoids committing to any determinate time at which a criminal action terminates
in a case where imposition of sentence is suspended and probation is granted. He
instead asserts that because the court retains fundamental jurisdiction even after
the term of probation has expired, “nothing prohibited the court from exercising
its fundamental jurisdiction to act in this instance.” Chavez, however, glosses
over the crucial distinction between ordinary and fundamental jurisdiction:
“[e]ven when a court has fundamental jurisdiction . . . the Constitution, a statute,
or relevant case law may constrain the court to act only in a particular manner, or
subject to certain limitations.” (Ford, supra, 61 Cal.4th at pp. 286–287.
In this case, the statute that constrains the court is the very provision under
which Chavez seeks dismissal — section 1385. Despite having fundamental
jurisdiction, the court acts in excess of its jurisdiction, as conferred by section
1385, if it dismisses an action under that section that is no longer pending.
(Espinoza, supra, 232 Cal.App.4th at p. Supp. 8.) Accordingly, Chavez is simply
incorrect when he asserts that “there is no statute prohibiting the exercise of
section 1385 authority in this case.” Section 1385, by its own terms, allows a trial
court to dismiss a criminal action but no more. The statute thus acts as its own
brake, delimiting the circumstances in which a court may act and those in which it
may not. (People v. Orin (1975) 13 Cal.3d 937, 945 [“The trial court’s power to
dismiss an action under section 1385, while broad, is by no means absolute.”];
Romero, supra, 13 Cal.4th at p. 530 [emphasizing that a court’s exercise of
discretion “must proceed in strict compliance with section 1385(a)”]; Hernandez,
supra, 22 Cal.4th at p. 524 [“The only action that may be dismissed under Penal
Code section 1385, subdivision (a), is a criminal action or a part thereof.”]; In re
Varnell (2003) 30 Cal.4th 1132, 1134–1135 [holding that a trial court may not
“rely on section 1385 to do something other than dismiss the charges or
allegations in a criminal action”].
To the extent Chavez engages with the relevant issue and its time frame —
a request for relief under section 1385 after the expiration of probation — we
disagree with his suggestion that a defendant may extend the limit of section 1385
simply by inviting the court to dismiss under its authority. Chavez asserts that
because fundamental jurisdiction exists, he may invoke the authority of section
1385 by submitting himself to the jurisdiction of the court. This argument
misstates the law. While a defendant may be estopped to complain that a court
acts in excess of its jurisdiction if he consents to such jurisdiction (Griffin, supra,
67 Cal.2d at pp. 347–349; Bakke, supra, 42 Cal.3d at pp. 89–90; Ford, supra, 61
Cal.4th at pp. 288–289), he cannot — in contravention of statute and over the
People’s objection — revive lapsed jurisdiction by his own unilateral act.
Having decided the proper scope of the jurisdictional grant conferred by
section 1385, we address the People’s contention that this case can be resolved on
the ground that section 1203.4 categorically eliminates the authority of section
1385 to grant relief to a former probationer. In the present context — where the
petitioner is asking for dismissal of his convictions to avoid collateral immigration
consequences — the People’s contention takes on special importance given the
recurring issue of immigration repercussions and dismissal in the interests of
justice. (See, e.g., Kim, supra, 45 Cal.4th at pp. 1086–1091; Espinoza, supra, 232
Cal.App.4th at pp. Supp. 3–4; People v. Aguilar (2014) 227 Cal.App.4th 60, 64.
Moreover, it is far from unusual for this court to encounter the argument
that particular statutory provisions repeal section 1385 by implication. While such
arguments sometimes succeed despite our disfavor of repeals by implication
(Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7), often they do not.
(Compare People v. Thomas (1992) 4 Cal.4th 206, 208 [ruling that the trial courts
may not continue to strike firearm use enhancements under section 1385 given
section 1170.1] and People v. Tanner (1979) 24 Cal.3d 514, 519 [finding that
section 1203.06 circumscribed the authority to dismiss under section 1385] with
People v. Fuentes (2016) 1 Cal.5th 218, 221–222 [holding that section 186.22(g
did not eliminate a trial court’s section 1385 discretion to dismiss a gang
enhancement allegation] and Romero, supra, 13 Cal.4th at p. 504 [concluding that
the Legislature has not withdrawn the statutory power to dismiss under section
1385 by enacting the Three Strikes law].) The appellate court here concluded that
section 1203.4 abrogated section 1385 by implication. As we disfavor such
implied repeals and recognize the issue may recur, we explain briefly how sections
1385 and 1203.4 are rationally harmonized.
As we have construed section 1385, a court may not exercise its dismissal
power under the section after probation has terminated. Meanwhile, the text of
section 1203.4 makes clear that probation must have terminated before a defendant
is provided any relief. (§ 1203.4, subd. (a)(1) [stating in relevant part that “the
defendant shall, at any time after the termination of the period of probation, if he
or she is not then serving a sentence for any offense, on probation for any offense,
or charged with the commission of any offense, be permitted by the court to”
enjoy the benefits enumerated therein]; People v. Butler (1980) 105 Cal.App.3d
585, 587 [“Section 1203.4 allows any convicted felon or misdemeanant who has
been granted probation to petition to have his record expunged, after the period of
probation has terminated.”]; People v. Field (1995) 31 Cal.App.4th 1178, 1786–
1787 [same].) On the facts before us, where a defendant completed probation four
years before inviting the trial court to dismiss under section 1385, sections 1203.4
and 1385 are not inconsistent. The jurisdictional bounds of section 1385 are
exceeded, and the provision does not apply. The issue of whether section 1203.4
controls to the exclusion of section 1385 simply does not come into play.
A trial court’s power to provide relief under section 1385 depends on when
a request for relief is made. At any time before a criminal defendant pleads guilty,
receives a suspension of sentence, begins a term of probation, or, indeed,
completes it, the defendant may invite the trial court to act in the interests of
justice and dismiss the action against him. By the time the defendant has
completed probation, however, the trial court’s power under section 1385 to grant
him the relief he seeks has run out. The action against the defendant has ceased,
the court may no longer impose a final judgment on him, and the court’s dismissal
power under section 1385 has expired.
Because Chavez completed probation four years before inviting the court to
dismiss pursuant to section 1385, we find that the trial court did not have
jurisdiction under that section to consider his dismissal request. On this basis, we
affirm the judgment of the Court of Appeal.
CANTIL-SAKAUYE, C. J.
Presiding Justice of the Court of Appeal, Second Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Chavez
Review Granted XXX 5 Cal.App.5th 110
Opinion No. S238929
Date Filed: April 26, 2018
Judge: Stephen L. Mock
Matthew A. Siroka, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Janet
Neeley, David Andrew Eldridge and Robert C. Nash, Deputy Attorneys General, for Plaintiff and
Counsel who argued in Supreme Court (not intended for publication with opinion):
Matthew A. Siroka
Law Office of Matthew A. Siroka
1000 Brannan Street, Suite 400
San Francisco, CA 94103
Robert C. Nash
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550