Today's Law As Amended


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AB-2438 Automatic withdrawal of plea.(2017-2018)



As Amends the Law Today


SECTION 1.

 Section 1203.4 of the Penal Code is amended to read:

1203.4.
 (a) (1) When  In any case in which  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 interests  of justice, determines that a defendant should be granted the relief available under this section, the defendant court  shall, at any time after  the termination of the period of probation, if they are  the defendant is  not then serving a sentence for an any  offense, on probation for an any  offense, or charged with the commission of an offense, be permitted by the court to withdraw their  any offense, have his or her  plea of guilty or plea of nolo contendere and enter  automatically withdrawn by the court and have entered  a plea of not guilty; or, if they have  he or she has  been convicted after a plea of not guilty, the court shall set aside the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  he or she  shall thereafter be released from all penalties and disabilities resulting from the offense of which they have  he or she has  been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in their  his or her  probation papers, of this right and privilege and the  his or her  right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing.  However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve them  him or her  of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(2) Dismissal  Automatic dismissal  of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her  custody or control of a  any  firearm or to prevent  prevent his or her  conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3) Dismissal  Automatic dismissal  of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.
(4) Dismissal of an accusation or information pursuant to this section does not release the defendant from the terms and conditions of an unexpired criminal protective order that has been issued by the court pursuant to paragraph (1) of subdivision (i) of Section 136.2, subdivision (j) of Section 273.5, subdivision (l) of Section 368, or subdivision (k) of Section 646.9. These protective orders shall remain in full effect until expiration or until any further order by the court modifying or terminating the order, despite the dismissal of the underlying accusation or information.
(5) (4)  This subdivision shall apply to all applications for relief under this section which are filed  convictions of which the defendant completed probation  on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to a any  misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to a any  violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section  288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or a any  felony conviction pursuant to subdivision (d) of Section 261.5, or to an any  infraction.
(c) (1) Subdivision  Except as provided in paragraph (2), subdivision    (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interest of justice, may order the relief provided pursuant to subdivision (a) to that defendant.
(3) (A) A petition for relief under this section shall not be denied due to an unfulfilled order of restitution or restitution fine.
(B) An unfulfilled order of restitution or a restitution fine shall not be grounds for finding that a defendant did not fulfil the condition of probation for the entire period of probation.
(C) When the court considers a petition for relief under this section, in its discretion and in the interest of justice, an unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief.
(d) (1) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.
(2) It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.
(e) If, after receiving notice pursuant to subdivision (d), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.
(f) (d)  Notwithstanding the above provisions or any other law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section  288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

SEC. 2.

 Section 1203.4a of the Penal Code is amended to read:

1203.4a.
 (a) Every  For every  defendant convicted of a misdemeanor and not granted probation, and for  every defendant convicted of an infraction shall, at any time  infraction,  after the lapse of one year from the date of pronouncement of judgment, if they have  he or she has  fully complied with and performed the sentence of the court, are is  not then serving a sentence for an any  offense and are is  not under charge of commission of a any  crime, and have, has,  since the pronouncement of judgment, lived an honest and upright life and have has  conformed to and obeyed the laws of the land, be permitted by  the court to shall  withdraw their the  plea of guilty or nolo contendere and enter a plea of not guilty; guilty,  or if they have  the defendant has  been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall  guilty and  dismiss the accusatory pleading against the defendant, who shall thereafter  be released from all penalties and disabilities resulting from the offense of which they have  he or she has  been convicted, except as provided in Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of Part 6 of this code or Section 13555 of the Vehicle Code.
(b) If a defendant does not satisfy all the requirements of subdivision (a), after a lapse of one year from the date of pronouncement of judgment, a court, in its discretion and in the interest interests  of justice, may grant the relief available pursuant to subdivision (a) to a defendant convicted of an infraction, or of a misdemeanor and not granted probation, or both, if the defendant  he or she  has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense, and is not under charge of commission of a any  crime.
(c) (1) The defendant shall be informed of the provisions of this section, either orally or in writing, at the time they are sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing, provided that, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if relief had not been granted pursuant to this section. he or she is sentenced. 
(2) Dismissal  Automatic dismissal  of an accusatory pleading pursuant to this section does not permit a person to own, possess, or have in their  his or her  custody or control a any  firearm or prevent their  his or her  conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3) Dismissal  Automatic dismissal  of an accusatory pleading underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.
(4) Dismissal of an accusation or information pursuant to this section does not release the defendant from the terms and conditions of an unexpired criminal protective order that has been issued by the court pursuant to paragraph (1) of subdivision (i) of Section 136.2, subdivision (j) of Section 273.5, subdivision (l) of Section 368, or subdivision (k) of Section 646.9. These protective orders shall remain in full effect until expiration or until any further order by the court modifying or terminating the order, despite the dismissal of the underlying accusation or information.
(d)  This section applies to a any  conviction specified in subdivision (a) or (b) that occurred before, as well as those occurring after, the effective date of this section, except that this section does not apply to the following:
(1) A misdemeanor violation of subdivision (c) of Section 288.
(2) A Any  misdemeanor falling within the provisions of Section 42002.1 of the Vehicle Code.
(3) An Any  infraction falling within the provisions of Section 42001 of the Vehicle Code.
(e) (1) A petition for relief under this section shall not be denied due to an unfulfilled order of restitution or restitution fine.
(2) An unfulfilled order of restitution or a restitution fine shall not be grounds for finding that a defendant did not fully comply with and perform the sentence of the court or a finding that a defendant has not lived an honest and upright life and has not conformed to and obeyed the laws of the land.
(3) When the court considers a petition for relief under this section, in its discretion and in the interest of justice, an unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief.
(f) A petition for dismissal of an infraction pursuant to this section shall be by written declaration, except upon a showing of compelling need. Dismissal of an infraction shall not be granted under this section unless the prosecuting attorney has been given at least 15 days’ notice of the petition for dismissal. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.
(g) Any determination of amount made by a court under this section shall be valid only if either (1) made under procedures adopted by the Judicial Council or (2) approved by the Judicial Council.