Opinion
B294922
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JAVIER PEREZ SANTIAGO, Defendant and Appellant.
Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA035596 APPEAL from an order of the Superior Court of Los Angeles County, Craig Richman, Judge. Reversed and remanded. Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant and defendant Javier Perez Santiago pled guilty to one count of sale or transportation of a controlled substance in 1991. Seventeen years later, while in immigration custody, Santiago filed a motion in pro per to vacate his plea and conviction pursuant to Penal Code sections 1473.7 and 1016.5. In the motion, Santiago argued he had received ineffective assistance of counsel at the time of the plea due to counsel's failure to advise him of the actual immigration consequences of the plea and counsel's failure to seek an immigration neutral disposition. The motion also stated Santiago was never provided the statutorily required section 1016.5 immigration consequences advisement at the time of his plea. The trial court summarily denied the motion without a hearing and without any parties present. Because Santiago was entitled to a hearing on his section 1473.7 claim where he could have been present or represented by counsel, we reverse the trial court's order and remand with instructions to hold such a hearing and consider the motion on its merits. On remand, the court should also consider Santiago's section 1016.5 motion.
All undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
We omit a recitation of facts because this appeal arises from the denial of a post-conviction motion, and the facts of Santiago's underlying conviction are neither contained in the record nor relevant to the issues presented.
On March 27, 1991, Santiago entered a guilty plea to one felony violation of Health and Safety Code section 11352, subdivision (a) in case number BA035596. He was sentenced to six months in county jail and three years of formal probation. Minute orders indicate the trial court played a "video cassette" advisement of rights for Santiago on the date of his arraignment, which included a section 1016.5 advisement of the potential immigration consequences of pleading guilty. The minute orders do not, however, indicate the trial court advised Santiago of the immigration consequences at the time of his guilty plea.
The Reporter's Transcript of the oral proceedings at Santiago's plea have apparently been destroyed.
Santiago filed a motion to dismiss the conviction under section 1203.4, which the trial court granted on February 22, 2017.
In accordance with section 1203.4, which authorizes relief to persons who have successfully completed probation, the court allowed Santiago to withdraw his plea and enter a plea of not guilty, and dismissed the information against him. Santiago's conviction was therefore expunged from his record. That action, however, had no effect on the federal immigration consequences of his conviction. (Ramirez-Castro v. INS (9th Cir. 2002) 287 F.3d 1172, 1174-1175.)
On May 25, 2018, the trial court received and filed a motion to vacate a judgment (§ 1473.3) prepared by Santiago in pro per from immigration custody. In his motion, Santiago argued he had received ineffective assistance of counsel at the time of the plea because counsel failed to advise him of the immigration consequences of the plea and failed to seek an immigration neutral disposition. The motion also asserted a second basis for vacating the plea, stating Santiago was never provided the statutorily required section 1016.5 immigration advisement at the time of his plea.
Santiago's motion explained that his conviction rendered him excludable and deportable and prevented him from seeking otherwise available forms of immigration relief. The motion stated that had Santiago understood these actual consequences of his conviction via proper advisement by either counsel or the court, he would not have proceeded with the plea.
Santiago later sent the court a follow-up letter reiterating his request to vacate the conviction.
The trial court read and considered the May 25th motion on August 20, 2018, and responded by ordering a copy of the February 22, 2017 minute order (which apparently reflected the court's decision to grant the section 1203.4 motion) be mailed to Santiago. Two days later, on August 22, 2018, the court received and considered Santiago's follow-up letter. Without holding a hearing and without any party present, the court, from chambers, denied Santiago's motion to vacate "for failure of proof."
Although Santiago's notice of appeal is facially untimely, the following considerations prompt us, in the interests of justice and judicial economy, to deem the notice of appeal constructively timely filed and decide the merits of the issues now before us: (1) Santiago filed his motion with the trial court in pro per and was not appointed counsel until after he filed his notice of appeal; (2) because Santiago filed the motion while in federal immigration custody, it likely took extra time before he was informed of the trial court's ruling; (3) it appears from the notice of appeal that Santiago filed it in good faith without knowing it was untimely; (4) the claims Santiago has raised on appeal are meritorious; and (5) the Attorney General agrees Santiago is entitled to a remand and does not raise the issue of timeliness. Based on these considerations, we deem Santiago's notice of appeal constructively timely filed. (See In re Benoit (1973) 10 Cal.3d 72, 84 ["the principle of constructive filing . . . embodies nothing more than a basis for judicial acceptance of an excuse for the appellant's delay in order to do justice. [Citation.]"].)
DISCUSSION
A. Santiago is entitled to a hearing
On appeal, Santiago argues the trial court erred by summarily denying his motion. He asks that we reverse and remand with instructions that the trial court hold a hearing and consider the motion on the merits. The Attorney General agrees that a remand for a hearing on the merits is required. We agree with the parties.
Section 1473.7, subdivision (a)(1) provides that a person who is "no longer in criminal custody may file a motion to vacate a conviction or sentence" if "[t]he conviction or sentence is legally invalid due to 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 . . . ." Section 1473.7, subdivision (d) states: "All motions shall be entitled to a hearing. Upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present . . . ." (Italics added.) Thus, "the plain language of section 1473.7, subdivision (d), establishes that a moving party is entitled to a hearing" and "entitle[s] [the moving party] to be personally present at the hearing." (People v. Fryhaat (2019) 35 Cal.App.5th 969, 977 (Fryhaat).) "[T]he court may hold the hearing without a defendant's presence if the defendant's counsel is present and the court finds good cause as to why the defendant cannot be present." (Ibid., citing § 1473.3, subd. (d).) Santiago is entitled to a remand for a hearing consistent with these principles.
B. Appointment of counsel at Santiago's hearing
Santiago also argues we should instruct the trial court to appoint him counsel on remand because he has made a prima facie showing of entitlement to relief under section 1473.7. With respect to the issue of the appointment of counsel, the Attorney General argues the proper remedy is a remand for the trial court to consider whether Santiago has set forth adequate factual allegations stating a prima facie case for entitlement to relief, and to appoint counsel if appropriate.
While section 1473.7 explicitly provides for the presence of the moving defendant, many defendants bringing such motions are in federal immigration custody and unable to personally appear. As Santiago filed his motion in pro per from federal immigration detention while awaiting removal proceedings, he apparently is such a defendant. The Fourth District recently held: "[I]f the moving party is indigent and cannot attend the hearing because he or she is in federal custody awaiting deportation, . . . the trial court should appoint counsel." (Fryhaat, supra, 35 Cal.App.5th at p. 978.) The appointment of counsel "would avoid the untenable result of having such a party, who cannot be personally present at a hearing, be effectively deprived of an opportunity to present his or her case and respond to any arguments made in opposition at the hearing on the motion." (Id. at p. 983.)
In addition to the requirements that the defendant be indigent and unable to attend the hearing, Fryhaat sets forth a third requirement that must be satisfied in order to trigger the appointment of counsel - that the defendant make a prima facie case for relief under section 1473.7. (Fryhaat, supra, 35 Cal.App.5th at pp. 983-984.)
It appears from Santiago's motion that he has made a prima facie case for relief under section 1473.7, as he has alleged his "conviction or sentence is legally invalid due to prejudicial error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty . . . ." (§ 1473.7, subd. (a).) Once the case is remanded, however, the trial court will be in a better position than we are now to assess whether Santiago satisfies all three requirements necessary to trigger the appointment of counsel (indigence, inability to attend the hearing, and a prima facie showing of eligibility for relief). Assuming Santiago satisfies these three requirements, counsel should be appointed on his behalf.
The fact that Santiago did not make these statements in a separate attachment or declaration and merely included them in his motion does not defeat their validity as the basis of a prima facie showing. (Fryhaat, supra, 35 Cal.App.5th at p. 982.) Additionally, the Attorney General suggests the trial court could, upon remand, conclude Santiago failed to present a prima facie case by not affirmatively establishing that his motion was filed with reasonable diligence. This appears to be incorrect. Section 1473.7, subdivision (b)(2)(B) states that a petition may be untimely if it was not filed with reasonable diligence after the later of two different events, one of which is "[n]otice 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." Because Santiago was still being held in a federal immigration detention facility when he mailed his notice of appeal on December 31, 2018, it appears unlikely that a final removal order had yet issued when he filed his motion to vacate seven months earlier on May 25, 2018. If, however, the trial court concludes such a removal order issued before he filed his motion, the court will have the discretion to conclude the motion was not filed with reasonable diligence. (See § 1473.7 (b)(2)(B) [motion may be deemed untimely if not filed with reasonable diligence after notice of a final removal order has issued].) --------
Santiago's motion also alleged he was not given a section 1016.5 advisement at the time of his guilty plea. Section 1016.5, subdivision (a) provides: "Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: ¶ If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged 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." A defendant is "presumed not to have received" the advisement unless it appears in the record. (§ 1016.5, subd. (b); People v. Akhile (2008) 167 Cal.App.4th 558, 562 (Akhile).)
The statute specifies a remedy for a trial court's failure to administer the advisement: "If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty." (§ 1016.5, subd. (b).)
"'To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement.'" (Akhile, supra, 167 Cal.App.4th at p. 562, internal citations omitted.)
In Santiago's case, it appears the Reporter's Transcript of the plea proceedings has been destroyed, and the minute orders from the plea hearing provide no indication that any immigration advisement was given. In cases such as Santiago's, where the minute orders are marked "by the absence of any notation that the defendant was advised," there is a strong inference "that advisements were not given." (People v. Arriaga (2014) 58 Cal.4th 950, 963, emphasis in original, citing People v. Martinez (2013) 57 Cal.4th 555, 560.) Although the record shows the trial court gave Santiago the section 1016.5 advisement at his arraignment hearing, the advisement must occur at the plea hearing. (Akhile, supra, 167 Cal.App.4th at p. 564.) On remand, however, assuming the trial court concludes the prosecution is unable to rebut the presumption that Santiago was not given the section 1016.5 advisement, this conclusion "does not require the trial court to ignore the obviously material fact of an earlier advisement." (Akhile, supra, 167 Cal.App.4th at p. 565.) "Instead, an advisement at the arraignment becomes a factor that the trial court should consider in deciding if prejudice has been established." (Ibid., italics in original.)
On remand, the trial court should determine whether the prosecution is able to rebut the presumption that Santiago was not properly advised of the immigration consequences under section 1016.5. If the court determines the prosecution is unable to rebut the presumption, the court should then determine whether Santiago suffered prejudice as a result of the non-advisement, i.e., whether Santiago has demonstrated it is "reasonably probable he would not have pleaded guilty . . . if properly advised. [Citation.]" (Akhile, supra, 167 Cal.App.4th at p. 565.)
DISPOSITION
The order denying Santiago's section 1473.7 motion to vacate his conviction is reversed, and the matter is remanded with directions to evaluate Santiago's request for appointment of counsel in a manner consistent with this opinion, appoint counsel if appropriate, and consider the motion on its merits. On remand, the court should also consider the merits of Santiago's section 1016.5 motion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: MANELLA, P.J. COLLINS, J.