California § 1203.42 - If a defendant was sentenced prior to the implementation of the 2011 Realignment

§ 1203.42. If a defendant was sentenced prior to the implementation of the 2011 Realignment

(a) If a defendant was sentenced prior to the implementation of the 2011 Realignment Legislation for a crime for which the defendant would otherwise have been eligible for sentencing pursuant to subdivision (h) of Section 1170, the court, in its discretion and in the interest of justice, may order the following relief, subject to the conditions of subdivision (b): (1) The court may permit the defendant to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if 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 thereupon dismiss the accusations or information against the defendant and the defendant shall be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code. (2) The relief available under this section may be granted only after the lapse of two years following the defendant’s completion of the sentence. (3) The relief available under this section may be granted only if the defendant is not under supervised release, and is not serving a sentence for, on probation for, or charged with the commission of, an offense. (4) The defendant may make the application and change of plea in person or by attorney, or by a probation officer authorized in writing. (b) Relief granted pursuant to subdivision (a) is subject to the following conditions: (1) In a 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 the accusation or information had not been dismissed. (2) The order shall state, and the defendant shall be informed, that the order does not relieve the defendant of the obligation to disclose the conviction in response to a direct question contained in a questionnaire or application for public office, for licensure by a state or local agency, or for contracting with the California State Lottery Commission. (3) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in their custody or control a firearm or prevent a conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6. (4) 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. (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.