Can a defendant withdraw their guilty plea or set aside their conviction under section 851.86 of the California Criminal Code?

^7. Section 851.86 provides that "[w]henever a person is convicted of a charge, and the conviction is set aside based upon a determination that the person was factually innocent of the charge, the judge shall order that the records in the case be sealed, including any record of arrest or detention." If such an order is made, the defendant may then "state he or she was not arrested for that charge and that he or she was not convicted of that charge, and that he or she was found innocent of that charge by the court." Section 1385, subdivision (a), provides that "[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." The effect of a dismissal under section 1385 is to wipe the slate clean as if the defendant never suffered the prior conviction in the initial instance. In other words, the defendant stands as if he had never been prosecuted for the charged offense. (People v. Simpson (1944) 66 Cal.App.2d 319, 329.)

^8. Section 1203.4, subdivision (a)(1) provides in relevant part that if "a defendant has fulfilled the conditions of probation for the entire period of probation" and "is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense," then the defendant shall "be permitted by the court to withdraw his or her guilty plea or, . . . if [the defendant] has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty." However, the order "does not relieve the defendant of his or her obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, [or] for licensure by any state or local agency." Thus, dismissal under section 1203.4 does not erase a conviction; 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.)