People v. Wiedersperg, Cr. 12967

Decision Date15 January 1975
Docket NumberCr. 12967
Citation44 Cal.App.3d 550,118 Cal.Rptr. 755
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Stefan WIEDERSPERG, Defendant and Appellant.

Gerald D. Connor, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

GOOD, * Associate Justice (Assigned).

On this appeal from an order denying a petition for writ of error coram nobis defendant contends that the trial court erred in its holding that it did not have jurisdiction to entertain the petition. We agree and remand the cause to the trial court for its consideration of the merits.

On December 20, 1973, defendant Stefan Wiedersperg, through counsel, filed a petition for writ of error coram nobis and a notice of motion to vacate judgment in San Francisco Superior Court. The petition and supporting declaration alleged in substance as follows: On August 26, 1968, defendant was found guilty of possession of marijuana. The issue of guilt had been submitted on the transcript of the preliminary hearing. He was fined $100, and placed on three years probation. On December 3, 1969, defendant's motion for expungement of the record and conviction was granted, pursuant to section 1203.4 of the Penal Code. At the time of the 1968 proceedings defendant's attorney did not know, and had no reason to know, that defendant was an alien born in Austria. He had been in this country since the age of ten, when he entered with his parents in 1957, and he had no outward appearances of not having been native born. Subsequent to the 1969 expungement of the conviction, defendant was ordered to appear before the Immigration and Naturalization Service, which ultimately determined that he should be deported because of his conviction. 1

The declaration also states that if counsel had known of his client's alien status he would not have proceeded with the case as he had, but would have attempted to arrive at some other disposition, such as a guilty plea to presence in a place where drugs are used (Health & Saf.Code, § 11365, formerly § 11556), which is not a deportable offense. The attorney declared upon information and belief that the sentencing judge would not have imposed the sentence which he did had he been aware that it would subject defendant to deportation. This belief was supported by the fact that the judge had been quite lenient with defendant in several respects, i.e., allowing him to remain on bail, minimal fine at the time and minimal terms of probation.

Hearing was held on the petition on December 24, 1973, at which time the court found that it did not have jurisdiction to entertain a petition for writ of error coram nobis, because the judgment had been expunged. It therefore declined to exercise its discretion and denied the petition. Appellant filed timely notice of appeal.

Did the trial court have jurisdiction to entertain the petition?

The court held that because the guilty finding had been set aside, the not guilty plea reinstated, and the information dismissed, all pursuant to section 1203.4 of the Penal Code, it did not have jurisdiction to vacate the judgment. The judge said, '. . . the complete information has been wiped out from under me. I have nothing before me right now. That has been expunged . . . I have no jurisdiction.' The question of the propriety of this ruling appears to be one of first impression.

Section 1203.4 provides that in any case in which the defendant has successfully completed the period of probation he may be permitted by the court to withdraw his guilty plea, after which the court shall dismiss the information against him, 'and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted.' However, the expungement procedure does not eradicate the conviction. Even though the information has been dismissed, the 'EXPUNGED' CONVICTION MAY BE PLEADED AND PROVEd in a subsequent case as a prior conviction. Also, the defendant may be convicted of possession of a firearm by a prior felon, based upon his expunged conviction. (Pen.Code, § 1203.4, subd. (a).) Furthermore, the conviction exists for other purposes, such as suspending a physician's license for unprofessional conduct (Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 206 P.2d 1085); disbarring an attorney (In re Phillips (1941) 17 Cal.2d 55, 109 P.2d 344); res judicata in a civil action for nonsupport of a child (People v. Majado (1937) 22 Cal.App.2d 323, 70 P.2d 1015); and, as in the case at bench, deportation (8 U.S.C.A. § 1251, subd. (a) (11); Gonzalez de Lara v. United States (5th Cir. 1971) 439 F.2d...

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  • US v. Mora-Gomez
    • United States
    • U.S. District Court — Eastern District of Virginia
    • February 15, 1995
    ...state courts have adopted this approach. See Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982); People v. Wiedersperg, 44 Cal.App.3d 550, 118 Cal.Rptr. 755 (1975). Yet, the greater weight of authority is to the contrary. See supra note 7 and accompanying 10 Both decisions sp......
  • People v. Ibanez
    • United States
    • California Court of Appeals Court of Appeals
    • November 29, 1999
    ...children and child molestation at the time he pleaded guilty to these crimes. Further, defendant's reliance on People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755 is misplaced. In that case, the defendant contended the trial court erred in its holding that it did not have juri......
  • People v. Hyung Joon Kim
    • United States
    • California Supreme Court
    • March 16, 2009
    ...that would have prevented rendition of the judgment. In arguing to the contrary, defendant relies heavily on People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755, but that decision cannot bear the weight of his argument. In that case, an Austrian national was charged with havin......
  • People v. Kim
    • United States
    • California Court of Appeals Court of Appeals
    • April 25, 2007
    ...have been discovered by him at any time substantially earlier than the time of his motion for the writ." (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554, 118 Cal.Rptr. 755.) Defendant's position is that he has properly presented in his petition the assertion of his "lack of knowledge o......
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