Opinion
KLINE, P. J.
With the support of the district attorney who successfully prosecuted him, appellant Jose Barraza moves for “stipulated reversal” of his misdemeanor conviction. We shall deny the motion.
After an eight-day trial in the San Francisco Superior Court, appellant was acquitted of attempted murder, attempted voluntary manslaughter and assault with a deadly weapon, but was convicted of the misdemeanor offense of carrying a loaded firearm in public. (Pen. Code, § 12031, subd. (a).) A timely notice of appeal was filed. Briefing in this court has not commenced. Appellant has at the present time served his 60-day jail sentence and is on probation.
The motion papers represent that appellant is a Mexican citizen who has been a lawful resident of the United States for 16 years and has suffered no prior criminal convictions. Because the offense of which he was convicted involves a firearm, federal law assertedly compels immigration authorities to revoke appellant’s permanent resident status, deport him and permanently exclude him from returning to the United States. (See 8 U.S.C. § 1251(a)(2)(C).)
Appellant’s counsel declares that “Mr. Barraza’s innocent family will either itself be deported to Mexico, or be separated from Mr. Barraza and possibly be thrown onto welfare. The drastic immigration consequences require that Mr. Barraza prosecute this appeal from his misdemeanor conviction.”
Apparently in order to help him avoid deportation, the district attorney who prosecuted appellant stipulated that, “in order to settle the appeal in this matter and the underlying criminal case,” the conviction of misdemeanor possession of a loaded firearm (Pen. Code, § 12031, subd. (a)) be vacated and the clerk of the superior court “directed to file an amended abstract of judgment reflecting that Mr. Barraza was convicted of the misdemeanor of assault by means of force likely to cause great bodily injury in violation of Penal Code § 245(a)(1),
nunc pro tunc
as of the date on the current abstract of judgment, and received the same sentence . . . .”
The proposed “settlement” subjects appellant to a one-year maximum jail sentence in the event he violates probation, which is twice the time he would serve for such a violation under the original judgment. The stipulation is, of course, contingent upon the approval of this court.
Discussion
The sole legal basis upon which appellant urges us to grant the motion for stipulated reversal and thereby effectuate the agreement of the parties is
Neary
v.
Regents of University of California
(1992) 3 Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119].
Neary
was a civil case in which the court held that, “when the parties to an action agree to settle their dispute and as part of their settlement stipulate to a reversal of the trial court judgment, the Court of Appeal should grant their request for the stipulated reversal absent a showing of extraordinary circumstances that warrant an exception to this general rule.”
(Id.,
at p. 284.)
Contrary to the view of the United States Supreme Court that “settlement does not justify vacatur of a judgment”
(U.S. Bancorp Mortgage Co.
v.
Bonner Mall Partnership
(1994) 513 U.S.__,__[130 L.Ed.2d 233, 244, 115 S.Ct. 386, 393]), the California Supreme Court has established a “strong presumption in favor of allowing stipulated reversals,” the state analog to vacatur.
(Neary
v.
Regents of University of California, supra,
3 Cal.4th at p. 283.) In doing so, our high court explicitly rejected the idea that the reversal of a judgment not shown to be wrong as a condition of settlement would trivialize the work of the trial courts or undermine their integrity.
(Id.,
at pp. 281-282.) Stipulated reversal therefore cannot be denied in California courts on the principle, recently reiterated by a unanimous United States Supreme Court, that the judgments of a court, which are “presumptively correct” and “valuable” (513 U.S. at p__[130 L.Ed.2d at p. 243, 115 S.Ct. at p. 392]), “ ‘are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.’ ”
(Ibid.,
quoting
Izumi Seimitsu Kogyo
v.
U.S. Philips
(1993) 510 U.S. _, _, [126 L.Ed.2d 396, 407, 114 S.Ct. 425] (dis. opn. of Stevens, J.).) Because vacatur as a condition of settlement is deemed inimical to “the orderly operation of the federal. . . system” (513 U.S at p__ [130 L.Ed.2d at p. 243, 115 S.Ct. at p. 392]), such relief cannot be granted by federal courts absent a showing of “exceptional circumstances.”
(Ibid.)
The situation is exactly the reverse in our courts, where such relief is thought to serve judicial interests
and therefore
must
be granted absent “extraordinary circumstances that weigh against allowing the stipulated reversal.”
(Neary, supra,
at p. 285.)
Appellant claims no such circumstances are presented by the instant request for stipulated reversal. In a declaration filed in support of the motion, appellant’s counsel maintains that denial of stipulated reversal is unjustified by any public interest because the judgment “does not affect any important public rights or involve any illegal practices beyond the isolated misdemeanor conviction, and does not affect a significant number of persons not parties to the litigation.” Appellant maintains that, on the contrary, granting stipulated reversal would in several ways actually
serve
the public interest.
First, “[tjhere is potential savings of many thousands of dollars of public funds through settlement . . . , in terms of savings of court appointed attorney billing, expenses of the Attorney General’s Office and the courts in obviating the need to write and read [numerous briefs and motions], the court’s opinion in the case, and any possible Petitions, including Habeas Corpus, Rehearing, and Review.” Secondly, appellant’s “innocent family would be spared the potential of being thrown onto welfare since he would be required to be deported as a result of this minor conviction, and the public would be relieved of this public charge.” Third, “[t]he government would be relieved of the expenses of deportation proceedings.” Finally, “the public would be given twice the protection it now enjoys against the (unlikely) possibility of a probation violation.”
Counsel for appellant maintains that “[s]ettlement of this case is really no different from the plea-bargaining that occurs in the trial courts of this state, in the sense of furthering the public interest by offering the potential for minimizing expensive litigation. By opening the door to settlements of criminal appeals, this case offers the potential to pave the way for major judicial economies.
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Opinion
KLINE, P. J.
With the support of the district attorney who successfully prosecuted him, appellant Jose Barraza moves for “stipulated reversal” of his misdemeanor conviction. We shall deny the motion.
After an eight-day trial in the San Francisco Superior Court, appellant was acquitted of attempted murder, attempted voluntary manslaughter and assault with a deadly weapon, but was convicted of the misdemeanor offense of carrying a loaded firearm in public. (Pen. Code, § 12031, subd. (a).) A timely notice of appeal was filed. Briefing in this court has not commenced. Appellant has at the present time served his 60-day jail sentence and is on probation.
The motion papers represent that appellant is a Mexican citizen who has been a lawful resident of the United States for 16 years and has suffered no prior criminal convictions. Because the offense of which he was convicted involves a firearm, federal law assertedly compels immigration authorities to revoke appellant’s permanent resident status, deport him and permanently exclude him from returning to the United States. (See 8 U.S.C. § 1251(a)(2)(C).)
Appellant’s counsel declares that “Mr. Barraza’s innocent family will either itself be deported to Mexico, or be separated from Mr. Barraza and possibly be thrown onto welfare. The drastic immigration consequences require that Mr. Barraza prosecute this appeal from his misdemeanor conviction.”
Apparently in order to help him avoid deportation, the district attorney who prosecuted appellant stipulated that, “in order to settle the appeal in this matter and the underlying criminal case,” the conviction of misdemeanor possession of a loaded firearm (Pen. Code, § 12031, subd. (a)) be vacated and the clerk of the superior court “directed to file an amended abstract of judgment reflecting that Mr. Barraza was convicted of the misdemeanor of assault by means of force likely to cause great bodily injury in violation of Penal Code § 245(a)(1),
nunc pro tunc
as of the date on the current abstract of judgment, and received the same sentence . . . .”
The proposed “settlement” subjects appellant to a one-year maximum jail sentence in the event he violates probation, which is twice the time he would serve for such a violation under the original judgment. The stipulation is, of course, contingent upon the approval of this court.
Discussion
The sole legal basis upon which appellant urges us to grant the motion for stipulated reversal and thereby effectuate the agreement of the parties is
Neary
v.
Regents of University of California
(1992) 3 Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119].
Neary
was a civil case in which the court held that, “when the parties to an action agree to settle their dispute and as part of their settlement stipulate to a reversal of the trial court judgment, the Court of Appeal should grant their request for the stipulated reversal absent a showing of extraordinary circumstances that warrant an exception to this general rule.”
(Id.,
at p. 284.)
Contrary to the view of the United States Supreme Court that “settlement does not justify vacatur of a judgment”
(U.S. Bancorp Mortgage Co.
v.
Bonner Mall Partnership
(1994) 513 U.S.__,__[130 L.Ed.2d 233, 244, 115 S.Ct. 386, 393]), the California Supreme Court has established a “strong presumption in favor of allowing stipulated reversals,” the state analog to vacatur.
(Neary
v.
Regents of University of California, supra,
3 Cal.4th at p. 283.) In doing so, our high court explicitly rejected the idea that the reversal of a judgment not shown to be wrong as a condition of settlement would trivialize the work of the trial courts or undermine their integrity.
(Id.,
at pp. 281-282.) Stipulated reversal therefore cannot be denied in California courts on the principle, recently reiterated by a unanimous United States Supreme Court, that the judgments of a court, which are “presumptively correct” and “valuable” (513 U.S. at p__[130 L.Ed.2d at p. 243, 115 S.Ct. at p. 392]), “ ‘are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.’ ”
(Ibid.,
quoting
Izumi Seimitsu Kogyo
v.
U.S. Philips
(1993) 510 U.S. _, _, [126 L.Ed.2d 396, 407, 114 S.Ct. 425] (dis. opn. of Stevens, J.).) Because vacatur as a condition of settlement is deemed inimical to “the orderly operation of the federal. . . system” (513 U.S at p__ [130 L.Ed.2d at p. 243, 115 S.Ct. at p. 392]), such relief cannot be granted by federal courts absent a showing of “exceptional circumstances.”
(Ibid.)
The situation is exactly the reverse in our courts, where such relief is thought to serve judicial interests
and therefore
must
be granted absent “extraordinary circumstances that weigh against allowing the stipulated reversal.”
(Neary, supra,
at p. 285.)
Appellant claims no such circumstances are presented by the instant request for stipulated reversal. In a declaration filed in support of the motion, appellant’s counsel maintains that denial of stipulated reversal is unjustified by any public interest because the judgment “does not affect any important public rights or involve any illegal practices beyond the isolated misdemeanor conviction, and does not affect a significant number of persons not parties to the litigation.” Appellant maintains that, on the contrary, granting stipulated reversal would in several ways actually
serve
the public interest.
First, “[tjhere is potential savings of many thousands of dollars of public funds through settlement . . . , in terms of savings of court appointed attorney billing, expenses of the Attorney General’s Office and the courts in obviating the need to write and read [numerous briefs and motions], the court’s opinion in the case, and any possible Petitions, including Habeas Corpus, Rehearing, and Review.” Secondly, appellant’s “innocent family would be spared the potential of being thrown onto welfare since he would be required to be deported as a result of this minor conviction, and the public would be relieved of this public charge.” Third, “[t]he government would be relieved of the expenses of deportation proceedings.” Finally, “the public would be given twice the protection it now enjoys against the (unlikely) possibility of a probation violation.”
Counsel for appellant maintains that “[s]ettlement of this case is really no different from the plea-bargaining that occurs in the trial courts of this state, in the sense of furthering the public interest by offering the potential for minimizing expensive litigation. By opening the door to settlements of criminal appeals, this case offers the potential to pave the way for major judicial economies. There is really no reason to force full expensive litigation of every criminal appeal, as has been the case thus far.”
Though the disposition stipulated to by the parties would conserve judicial resources, and might otherwise eliminate various government expenditures, those are not the only relevant public interests. We recently held that stipulated reversal must be denied under the public interest exception where the judgment that would be reversed subjected the losing party, a real estate broker, to professional disciplinary proceedings.
(Norman I. Krug Real Estate Investments, Inc.
v.
Praszker
(1994) 22 Cal.App.4th 1814 [28 Cal.Rptr.2d 498].) We concluded “[i]t would be unconscionable to make it possible for a real estate broker who may have acted unethically to purchase
disciplinary immunity from one of the consequences of his impropriety.”
(Id.,
at p. 1822.) Although the condition of settlement at issue here was not obtained for financial consideration, as in
Praszker
and most civil cases, it would nonetheless appear equally unjust to permit an alien convicted of a criminal offense involving the use of a firearm to avoid one of the legislatively prescribed consequences of such a criminal act absent any reason to question the correctness of the judgment. Moreover, any saving of judicial resources that might now result from stipulated reversal pales in comparison to that which would have been achieved by a conventional plea bargain prior to trial.
In any event, we need not determine whether allowing stipulated reversal in this case would offend any public interest, or balance competing interests, because there is a more fundamental reason the motion must be denied.
Even indulging the very questionable assumption that
Neary
applies to criminal cases,
which neither the Supreme Court nor any other court has ever suggested, the motion before us seeks a remedy substantially different from that authorized by
Neary.
Appellant does not seek reversal of the judgment in this case, the civil remedy approved in
Neary,
nor merely the vacating of that judgment. The parties’ “settlement,” which (as appellant acknowledges) is really no more than a postjudgment plea bargain, does not purport to simply reverse or vacate the judgment of conviction or otherwise exonerate appellant of criminal responsibility. The district attorney has stipulated that, if the bargain is approved and implemented by this court, a judgment convicting appellant of misdemeanor assault in violation of Penal Code section 245, subdivision (a)(1), may replace the different judgment imposed by the trial court. The substitution of one adverse judgment for another is not, as near as
we can tell, what the
Neary
court had in mind, nor is it a practice for which there is other authority.
“Assuming the validity of a final judgment of conviction, any entitlement to postconviction relief, and the form thereof, is governed by statute.”
(People
v.
Mendez
(1991) 234 Cal.App.3d 1773, 1778 [286 Cal.Rptr. 216].) So far as we are aware, the Legislature has established only one such avenue for an adult, like appellant, convicted of a felony or misdemeanor who has been admitted to probation and not committed to prison, California Youth Authority or other state institutions. Penal Code section 1203.4 permits a trial court to set aside a verdict of guilty and “thereupon dismiss the accusations or information against the defendant.” With certain specified exceptions, a defendant granted such relief “shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . .
Expungement under this statute “does not eradicate a conviction or purge a defendant of the guilt established thereby .... It merely frees the convicted felon from certain ‘penalties and disabilities’ of a criminal or like nature.”
(Adams
v.
County of Sacramento
(1991) 235 Cal.App.3d 872, 877-878 [1 Cal.Rptr.2d 138].)
We do not know whether the relief from deportation appellant seeks could have been provided under Penal Code section 1203.4 and deem
it inappropriate to make that inquiry because appellant has not sought such relief. Section 1203.4 is pertinent to our analysis only because it is the only postconviction relief from the consequences of a valid criminal conviction available to a defendant under our law.
Because the relief sought in this case is authorized neither by statute nor by
Neary,
the motion for stipulated reversal is denied. Appellant shall have 30 days from the date of this order to file his opening brief.
Smith, J., and Phelan, J., concurred.
A petition for a rehearing was denied December 9, 1994.