The Appellate Division of the Superior Court has determined that defendants who take advantage of the Sentence Deferral Program cannot later seek relief under Penal Code section 1473.7.
“The threshold question in deciding the propriety of the trial court’s ruling is whether defendant had a conviction or sentence when he made his motion. Defendant was never sentenced so we turn to whether he sustained a conviction within the meaning of section 1473.7, subdivision (a). Under well-settled law, defendant sustained a conviction when the trial court accepted and entered his plea of no contest.3 Nonetheless, section 1473.7 relief was inapplicable because, at the time the motion was litigated, defendant’s plea (or “conviction”) no longer existed. In other words, there was no conviction to ‘vacate.’”
“While the surviving ramifications for the defendant who secures a section 1203.4 dismissal are indicative of a conviction, the same cannot be said for a dismissal under the Sentence Deferral Program. The only exception to complete nullification of the defendant’s criminal proceeding upon dismissal pursuant to the Sentence Deferral Program is (a) the Department of Justice may disclose the arrest ‘in response to a peace officer application request’ and (b) successful completion of the Sentence Deferral Program ‘does not relieve [the defendant] of the obligation to disclose the arrest in response to a direct question contained in a questionnaire of application for a position as a peace officer . . . .’ In other words, the target of potential adverse consequences is strictly limited to a narrow class of defendants who seek employment as a peace officer. For all intents and purposes, the dismissal of a case pursuant to section 1001.96 renders the conviction a complete nullity. A prerequisite for section 1473.7 relief is the existence of a conviction or sentence. Defendant had neither at the time he litigated his motion; because he successfully completed section 1001.94 diversion, his plea was withdrawn, his case was dismissed, and there was no conviction to vacate. Defendant was not eligible for section 1473.7 relief.”
The full text of People v. Kuzmichey can be found here: