Opinion
E071349
09-04-2019
THE PEOPLE, Plaintiff and Respondent, v. JESUS MANUEL PEREZ RODRIGUEZ, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF030726) OPINION APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Jesus Manuel Perez Rodriguez is a citizen of Mexico who had been living in the United States for nearly 40 years. In 1998, defendant pleaded guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11378). In exchange, the remaining charges were dismissed, and defendant was sentenced to 16 months in state prison. Approximately 40 days before he finished his sentence, defendant was transported to immigration custody. And, in July 1999, defendant was deported to Mexico. In 2005, defendant entered the United States illegally. In February 2017, defendant was arrested and deported again for illegal reentry into the United States.
In June 2018, about 16 months later, defendant filed a motion to vacate his guilty plea pursuant to Penal Code section 1473.7, arguing his conviction was legally invalid and not knowingly and intelligently made because his trial counsel failed to advise him of the immigration consequences of his guilty plea. The trial court denied the motion, finding the motion was not brought with due diligence.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues the trial court erred in denying his motion to vacate his conviction when it found he did not act with due diligence in filing his motion. We find that defendant's section 1473.7 motion was not brought with "reasonable diligence" and affirm the order.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from defendant's declaration attached to his motion to vacate his conviction.
Defendant, a native and citizen of Mexico, came to the United States with his family when he was six months old in 1980. He became a legal permanent resident soon thereafter.
In September 1998, when defendant was 18 years old and a senior in high school, he attended a "'ditching party'" with some friends. While there, the police raided the house for drugs and arrested defendant.
On September 17, 1998, a felony complaint was filed charging defendant with three counts of furnishing methamphetamine to a minor (Health & Saf. Code, § 11380; counts 1, 2 & 3); transportation, sale, or furnishing methamphetamine (Health & Saf. Code, § 11379; count 5); possession of methamphetamine (Health & Saf. Code, § 11377; count 7); and resisting, delaying or obstructing a peace officer (Pen. Code, § 148; count 8).
Counts 4 and 6 were charged solely against a codefendant.
On November 5, 1998, the felony complaint was orally amended to add count 9, possession of methamphetamine for sale in violation of Health and Safety Code section 11378. Thereafter, pursuant to a plea agreement, defendant pleaded guilty to count 9. In return, the remaining charges were dismissed and defendant was sentenced to a stipulated term of 16 months in state prison. The court's minute order from the plea hearing does not indicate whether defendant was advised of the immigration consequences under Penal Code section 1016.5. Defendant signed and initialed a felony plea form. In relevant part, defendant initialed the section of the form which stated that he had read and understood: "If I am not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
About 40 days before the end of his sentence, defendant was transferred to immigration custody and placed in removal proceedings. He was issued a notice to appear in the immigration court and advised he could fight his case while remaining in custody for another six months or he could sign a consent form to be deported. Defendant signed the consent form and was deported to Mexico.
In 2005, defendant entered the United States illegally. In December 2008, defendant was arrested for possession of a controlled substance and driving under the influence. In February 2009, a felony complaint was filed against defendant, and defendant failed to appear at his arraignment.
On May 11, 2015, in the subsequent case, defendant pleaded guilty to misdemeanor possession of a controlled substance and misdemeanor driving under the influence. In exchange, the remaining charges were dismissed and defendant was placed on probation for a period of 36 months. At that time, defendant was again advised of his potential immigration consequences. Defendant also signed and initialed a misdemeanor plea form. Specifically, he initialed the paragraph indicating, "If I am not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
On January 1, 2017, section 1473.7 went into effect. Section 1473.7 allows a person who is no longer in criminal custody to move to vacate a conviction or sentence entered on a plea, based on ineffective assistance of counsel giving rise to unexpected immigration consequences, or on other errors affecting the defendant's ability to understand or accept the adverse immigration consequences of a plea. (See § 1473.7.)
On February 15, 2017, defendant was arrested in a narcotics sting in Seattle, Washington. Subsequently, defendant was charged with and deported for illegal reentry into the United States.
After his February 2017 deportation, defendant's family members met with an attorney, who advised them of section 1473.7.
On June 6, 2018, over 18 months after section 1473.7 went into effect and approximately 16 months after his second deportation, defendant filed a motion to vacate his 1998 conviction pursuant to section 1473.7. Defendant claimed that his attorney at the time provided ineffective assistance of counsel because counsel failed to properly advise him of the immigration consequences associated with his plea.
On July 17, 2018, the People filed an opposition to the motion, arguing defendant's motion was untimely and not brought with reasonable diligence. In the alternative, the People asserted that defendant had been properly advised of his immigration consequences.
On August 1, 2018, the trial court held a hearing on defendant's motion. After hearing argument, the court denied defendant's motion as untimely and made no findings as to the merits of defendant's motion. The court was sympathetic to the fact that defendant could not bring a motion to vacate his conviction pursuant to section 1473.7, as that statute did not exist until 2017. However, because the statute came into effect in January 2017, and defendant's motion was not filed until June 2018, the court found defendant did not use reasonable diligence.
Specifically, the court explained: "All right. I am sympathetic to the difficulties, that you can't make a motion under a law that you don't know about. [¶] [Defendant] was deported in February of 2017, so he's outside of the United States. But obviously that wasn't barring him from hiring counsel and bringing this motion in—when was it—June 6 of this year. [¶] The Declaration in Support of the Motion doesn't demonstrate that he acted with due diligence in bringing this motion, and I'm only focusing on the time period between when the statute became effective and when the motion was filed; therefore the motion is denied. [¶] And so the record is clear, because I suspect someone may be looking at this, I am not finding anything as far as the arguments that counsel made about, does the record support that he was advised of the immigration consequences back in 1998?"
On September 27, 2018, defendant filed a timely amended notice of appeal.
III
DISCUSSION
Defendant argues the trial court abused its discretion when it found defendant did not act with due diligence in filing his motion to vacate his conviction pursuant to section 1473.7. The People assert that the trial court properly denied defendant's section 1473.7 motion because he failed to show he acted with reasonable diligence and also failed to show deficient performance or prejudice.
Because the trial court explicitly stated it would not reach the merits of defendant's arguments, we will only address the timeliness issue in bringing the motion.
A. Standard of Review
As we recently explained in People v. Fryhaat (2019) 35 Cal.App.5th 969: "We apply de novo review 'for a mixed question of fact and law that implicates a defendant's constitutional right. [Citation.] A defendant's claim that he or she was deprived of the constitutional right to effective assistance of counsel 'presents a mixed question of fact and law,' and we accordingly review such question independently. [Citations.] We accord deference to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel's deficient performance and resulting prejudice to the defendant. [Citations.]'" (Id. at p. 975, citing People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo); People v. Tapia (2018) 26 Cal.App.5th 942, 950 (Tapia); People v. Olvera (2018) 24 Cal.App.5th 1112, 1116-1117 (Olvera).)
The People argue the de novo standard of review as articulated in Ogunmowo, supra, 23 Cal.App.5th 67 was wrongly decided. We disagree for the reasons explained in our decision in Fryhaat. Moreover, in his opening brief, defendant stated the standard of review in determining the timeliness issue was abuse of discretion. Therefore, in his reply brief, defendant did not address whether Ogunmowo was incorrectly decided.
However, as noted by defendant, the determination of timeliness lies within a sound exercise of discretion vested in the trial court (see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 204, 210 (Zamudio); People v. Tannehill (1961) 193 Cal.App.2d 701, 706), reversing only where the court has exercised its "discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice." (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.)
The construction and interpretation of a statute is a question of law that we consider de novo on appeal. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language 'in isolation.' [Citation.] Rather, we look to 'the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]' [Citation.] That is, we construe the words in question '"in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.]' [Citation.] We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 142.)
B. Section 1473.7
At the time defendant filed his motion, section 1473.7, subdivision (a), provided: "A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons: [¶] (1) The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. [¶] (2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice." (Former § 1473.7, subd. (a); see People v. Perez (2018) 19 Cal.App.5th 818, 824 (Perez).) The defendant has the burden to prove that he or she "did not meaningfully understand the immigration consequences" to prevail on this motion. (Id. at p. 829.) Upon such proof, "the court must allow the person to withdraw his or her plea." (Id. at p. 824.)
Section 1473.7 has since been amended effective January 1, 2019, to clarify the section's timing and procedural requirements. (Stats. 2018, ch. 825, § 2; see Sen. Com. on Pub. Safety, Rep. on Assem. Bill No. 2867 (2017-2018 Reg. Sess.) as amended June 4, 2018, p. 1 (Pub. Safety Com. Rep. on Assem. Bill No. 2867).)
Former section 1473.7 subdivision (b), applicable at the time of the trial court's decision, provided, in relevant part, "A motion . . . shall be filed with reasonable diligence after the later of the following: [¶] (1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence is a basis for removal. [¶] (2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final." (Italics added.)
Regarding timing, amended section 1473.7, subdivision (b), states: "(b)(1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody. [¶] (2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following: [¶] (A) The moving party 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 the denial of an application for an immigration benefit, lawful status, or naturalization. [¶] (B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate." (§ 1473.7, subd. (b).) --------
As relevant here, section 1473.7 thus contains three requirements: (1) the moving party is no longer in criminal custody; (2) there is prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea; and (3) the motion is timely, that is, filed with reasonable diligence. (Perez, supra, 19 Cal.App.5th at p. 826.)
There are numerous appellate cases discussing the application of section 1473.7. However, most of these cases primarily discuss whether counsel was ineffective in failing to advise the defendant of the immigration consequences, whether the defendant suffered prejudice as a result, and interpretation of section 1473.7. (See, e.g., Perez, supra, 19 Cal.App.5th at pp. 828-830; People v. Espinoza (2018) 27 Cal.App.5th 908, 915-918; Olvera, supra, 24 Cal.App.5th at pp. 1117-1118; People v. Morales (2018) 25 Cal.App.5th 502, 508-514; Ogunmowo, supra, 23 Cal.App.5th at pp. 75-81; Tapia, supra, 26 Cal.App.5th at pp. 949-951.) As defendant notes, some of these cases briefly address the timeliness issue without much analysis. For example, in Perez, supra, 19 Cal.App.5th 818, the defendant brought his motion under section 1473.7 about seven weeks after the statute's effective date. The Court of Appeal found the passage of seven weeks did not render his motion untimely, "at least under the terms of section 1473.7." (Perez, at p. 829.) In Ogunmowo, supra, 23 Cal.App.5th 67, the appellate court concluded the defendant's motion was timely, noting the defendant "filed his motion two months after the effective date of section 1473.7 and before the finality of any removal order." (Ogunmowo, at p. 75.) In Espinoza, we found the defendant had satisfied the timeliness requirement when the motion was brought "just three weeks after section 1473.7 became effective." (Espinoza, at p. 914.)
Our research has not uncovered any cases interpreting the "reasonable diligence" requirement of section 1473.7, subdivision (b). In addition, there is nothing in the above-noted cases that set a limit of timeliness under the statute. Further, section 1473.7 does not provide guidance in determining the meaning of "reasonable diligence."
Defendant notes People v. Gonzalez (2018) 27 Cal.App.5th 738, review was denied in Gonzalez and the case was ordered not to be officially published on January 23, 2019, wherein the Court of Appeal implicitly found the defendant's motion was timely when the defendant brought his motion nine months after section 1473.7 became effective. (Gonzalez, at pp. 746-753.) However, in this case, defendant brought his section 1473.7 motion over 18 months after the statute's effective date on June 6, 2018, and approximately 16 months after his second deportation.
Citing to page 6 of the reporter's transcript and page 49 of the clerk's transcript, defendant argues that he did not become aware of section 1473.7 until December 2017, and that the motion was brought only six months after he learned of the statute. Yet, defendant's declaration, signed under penalty of perjury, does not support this assertion. Nowhere in defendant's declaration is a statement that he did not become aware of section 1473.7 until December 2017. Similarly, citation to page 49, which is part of the motion to vacate, of the clerk's transcript does not support defendant's statement that he did not learn of section 1473.7 until December 2017. Page 6 of the reporter's transcript also does not aid defendant. That page relates to arguments made by defendant's counsel in which counsel stated, "And at this point his declaration indicates he didn't become aware of [section] 1473.7 until his Federal conviction charge in approximately December of 2017." However, as explained above, defendant's declaration does not state such a proposition. Rather, the date noted in defendant's declaration for the federal charge is February 2017. Accordingly, we reject defendant's contention that he brought his section 1473.7 motion "only six months after he learned of the statute."
As noted by both parties, case law discussing a similar due diligence requirement in bringing a writ of coram nobis is also illustrative in establishing whether defendant timely brought his motion. In People v. Kim (2009) 45 Cal.4th 1078 (Kim), the Supreme Court held: "'It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis " [citations], and the burden falls to defendant 'to explain and justify the delay' [citation]. '[W]here a defendant seeks to vacate a solemn judgment of conviction . . . the showing of diligence essential to the granting of relief by way of coram nobis should be no less than the similar showing required in civil cases where relief is sought against lately discovered fraud. In such cases it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence, is insufficient.' [Citations.]" (Kim, at pp. 1096-1097.)
The Kim court explained: "The diligence requirement is not some abstract technical obstacle placed randomly before litigants seeking relief, but instead reflects the balance between the state's interest in the finality of decided cases and its interest in providing a reasonable avenue of relief for those whose rights have allegedly been violated. '[I]t is the trial that is the main arena for determining the guilt or innocence of an accused defendant. . . . At trial, a defendant is afforded counsel and a panoply of procedural protections, including state-funded investigation expenses, in order to ensure that the trial proceedings provide a fair and full opportunity to assess the truth of the charges against the defendant and the appropriate punishment. Further, . . . [i]t is the appeal that provides the basic and primary means for raising challenges to the fairness of the trial.' [Citation.] Thus, although coram nobis exists as a possible remedy in cases where this system breaks down, the availability of that extraordinary remedy, like habeas corpus, 'properly must be tempered by the necessity of giving due consideration to the interest of the public in the orderly and reasonably prompt implementation of its laws and to the important public interest in the finality of judgments.' [Citation.] Nor is the diligence requirement for coram nobis unique, for in addition to habeas corpus petitions, we require diligence for other types of collateral attacks on the validity of a plea. [Citations.]." (Kim, supra, 45 Cal.4th at pp. 1097-1098, citing Zamudio, supra, 23 Cal.4th at pp. 203-207 [diligence requirement for a motion to vacate a plea under section 1016.5]; People v. Walker (1991) 54 Cal.3d 1013, 1023 [defendant's complaint that he was not advised of the collateral consequences of his plea requires a timely objection], overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183.)
In this case, defendant was deported to Mexico in 1999 following his conviction for possession of a controlled substance for sale. Section 1473.7 became effective on January 1, 2017. Defendant was arrested in Seattle in February 2017 as part of a narcotics sting operation and was again deported. The order reinstating his earlier deportation order noted the 1998 conviction as the basis for his original deportation order. In his motion, defendant argued that it was not until "late 2017" that defendant contacted an attorney and learned of the existence of the new statute, section 1473.7. At the hearing on the motion, defendant's counsel reiterated that it was not until December 2017 that defendant became aware of section 1473.7. Defense counsel further explained that his motion was delayed because it was initially unclear whether the statute would be applied retroactively so that defendant would be eligible for relief under the new statute. These explanations were insufficient to establish that defendant acted diligently in bringing his motion. As the trial court noted, defendant's declaration in support of his motion fails to demonstrate he acted with reasonable diligence in bringing the motion. Defendant did not adequately explain why he waited to file his motion until June 6, 2018, more than 18 months after the January 1, 2017 effective date of section 1473.7, and about 16 months after his second deportation.
Based on the foregoing, we conclude the trial court did not abuse its discretion in denying defendant's section 1473.7 motion when it found defendant did not establish reasonable diligence in bringing his motion.
IV
DISPOSITION
The order denying defendant's section 1473.7 motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.