Counsel Must Be Appointed on Immigration Motion to Vacate a Conviction

People v. Millan Rodriguez, 2019 WL 3852665 (Cal.App. 4 Dist.)

Vacating a conviction because of inability to understand immigration consequences (Penal Code Section 1473.7)

On January 1, 2017, Penal Code section 1473.7 went into effect. It allows a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant’s ability to understand the immigration consequences of the plea.

On July 10, 2017, following the filing of of an appellate opinion in defendant’s first appeal, defendant, in pro. per., filed a motion to vacate his conviction under section 1473.7. On August 10, 2017, the trial court denied defendant’s motion without defendant or defense counsel present. On October 4, 2017, defendant filed a timely notice of appeal. The Court of Appeal reaffirmed the right to appointed counsel if the petitioner is indigent and cannot attend the hearing because she is in federal custody awaiting deportation.

Requirements for relief under Penal Code Section 1473.7

Penal Code Section 1473.7 permits a defendant to move to vacate his conviction where prejudicial error affected his ability to understand the immigration consequences of his guilty plea. To prevail on this motion, the defendant must establish that: (1) the defendant is no longer imprisoned or restrained; and (2) the conviction is legally invalid due to a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea. (§ 1473.7, subd. (a).)

The motion must be filed with “reasonable diligence” after either (1) the date the defendant receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal; or (2) the date the removal order against the defendant, based on the existence of the conviction or sentence, becomes final, whichever event occurs last. (§ 1473.7, subd. (b).)

Standard of Review on Appeal Claiming Denial of Constitutional Right

Here, the trial court’s decision involved the rejection of a defendant’s argument that he had been deprived of a constitutional right, such as the right to effective assistance of counsel. So the issue is a mixed question of law and fact, which the Court of Appeal determines independently. (People v. Ault (2004) 33 Cal.4th 1250, 1264) [de novo review of mixed law and fact questions particularly favored when constitutional right is implicated].)

The Court acknowledged that standard of review applicable to the denial of a section 1473.7 motion is unsettled. The defendant claims a deprivation of the constitutional right to effective assistance of counsel. When the motion asserts statutory error or a deprivation of statutory rights, the denial is reviewed for an abuse of discretion. (See People v. Ogunmowo (2018) 23 Cal.App.5th 67) However, when, as here, the motion asserts ineffective assistance of counsel, there is a division among the appellate courts whether the denial is reviewed under the “abuse of discretion” standard or the less deferential standard applicable to “ ‘a mixed question of fact and law.’ ” The People argued that “this court should decline to follow [Ogunmowo] because it was wrongly decided.” Recently, in People v. Fryhaat (2019) 35 Cal.App.5th 969, 975, the Court followed the standard of review set forth in Ogunmowo. The Court did not resolve this question because, it concluded that the trial court abused its discretion in denying defendant’s motion.

Trial court failed to comply with provisions of Section 1473.7

Section 1473.7, subdivision (d), in effect at the time of the hearing on August 10, 2017, provided: “All motions shall be entitled to a hearing. At the request of the moving party, the court may hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present.”

In this case, the trial court failed to comply with former section 1473.7, subdivision (d). When the trial court called the matter, defendant was not present. The court noted: “The defendant is currently in detention by the federal government on a detainer, ICE hold.” Also, defendant was not represented by counsel at the hearing. The court ruled on the section 1473.3 motion without defendant’s waiver of his right to be present, or without counsel present.

The Court Of Appeal Reversed and remanded for the trial court to consider whether defendant has set forth adequate factual allegations stating a prima facie case for entitlement to relief under section 1473.7, to appoint counsel if appropriate, and to address the section 1473.7 motion on its merits.

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