P. v. Cifuentes
On April 18, 1997, Byron Cifuentes was charged with discharging a firearm in a grossly negligent manner (Pen. Code,[1] § 246.3; count 1) and possessing a firearm as a felon (§ 12021, subd. (a)(1); count 2). Cifuentes pleaded guilty to possessing a firearm as a felon, and the court dismissed count 1. The court granted Cifuentes three years of probation.
Fifteen years later, Cifuentes moved to vacate the judgment and withdraw his guilty plea under section 1016.5. He contended neither the court nor his counsel advised him of the immigration consequences that attached to his guilty plea in 1997. The People agreed to allow the plea to be withdrawn on the condition Cifuentes enter a guilty plea to count 1 (which is a "strike" offense). The court granted Cifuentes's motion, and Cifuentes entered a guilty plea to count 1 nunc pro tunc to 1997. Two days later, the court held a chambers conference with both counsel and ultimately stayed its order granting the motion. On May 1, 2012, the court rescinded its order. On September 25, 2012, Cifuentes moved again to vacate the judgment and withdraw his guilty plea under section 1016.5, which a different court denied.
Cifuentes appeals, contending the court lacked jurisdiction to rescind its original order granting Cifuentes's first section 1016.5 motion, and judicial estoppel prevents the People from arguing the court improperly granted the motion. Cifuentes does not challenge the denial of his motion in September 2012 on the merits. He only challenges the May 1, 2012 order rescinding the earlier action by the trial court allowing the change of plea.
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