67 Cal.App.5th 1008
Cal. Ct. App.2021Background
- Perez, a Mexican-born lawful permanent resident since adolescence, pled guilty in 2000 to felony theft and was sentenced to two years in prison; plea minutes did not show an advisement of possible deportation.
- After release Perez was placed in immigration proceedings, and an Immigration Court ordered his removal in September 2019; he was returned to Mexico that month.
- On December 23, 2019 Perez filed a Penal Code §1473.7 motion to vacate his conviction, asserting he was not advised of immigration consequences and was misinformed by defense counsel.
- The district attorney opposed solely on timeliness grounds; the superior court denied the motion after the bench comment that equity favored relief but concluding the motion should be denied.
- The Court of Appeal held the superior court misapplied §1473.7(b) timeliness rules, found Perez filed with reasonable diligence, independently reviewed the record under People v. Vivar, and concluded Perez proved prejudicial error; it reversed and directed the superior court to grant the motion and vacate the conviction.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Perez) | Held |
|---|---|---|---|
| Proper interpretation of §1473.7(b) timeliness | Motion untimely; Perez delayed 19 years and after removal | §1473.7(b)(1) deems motions timely when not in criminal custody; only an exception allows deeming untimely if not filed with reasonable diligence after triggering events | §1473.7(b)(1) is a mandatory general rule; (b)(2) is a conditional, discretionary exception—lack of diligence does not automatically render motion untimely |
| Did superior court apply correct timeliness standard and make required §1473.7(e)(4) finding? | Denial was appropriate | Court failed to apply §1473.7(b) and did not make the statutory required finding | Superior court legally erred by relying on "equity" and not following §1473.7 timeliness and finding requirements |
| Whether Perez proved a prejudicial error damaging his ability to understand immigration consequences under §1473.7(a)(1) | Insufficient proof of prejudicial error or that Perez would have rejected plea | Minutes lack immigration advisement; Perez credibly says counsel misadvised him; strong U.S. ties show reasonable probability he would have refused the plea | On independent review (Vivar), Perez carried his burden: error (no advisement), damage to understanding, and prejudice (reasonable probability he would have declined plea) |
| Appropriate remedy | (Implicit) uphold denial | Vacate conviction and grant §1473.7 relief | Court reversed the denial and directed the superior court to grant the motion and vacate the conviction |
Key Cases Cited
- People v. Vivar, 11 Cal.5th 510 (Cal. 2021) (framework for §1473.7 prejudice inquiry and independent appellate review)
- People v. Ledesma, 16 Cal.4th 90 (Cal. 1997) ("shall" construed as mandatory in statutory text)
- People v. Perez, 19 Cal.App.5th 818 (Cal. Ct. App. 2018) (timeliness is required for §1473.7 motions)
- People v. Camacho, 32 Cal.App.5th 998 (Cal. Ct. App. 2019) (focus on defendant's lack of knowledge about immigration consequences under §1473.7)
- People v. Mejia, 36 Cal.App.5th 859 (Cal. Ct. App. 2019) (§1473.7 relief may be available without an ineffective-assistance finding)
- People v. Rodriguez, 60 Cal.App.5th 995 (Cal. Ct. App. 2021) (reversing denial of §1473.7 motion and remanding with directions to grant relief)