38 Cal.App.5th 971
Cal. Ct. App.2019Background
- In 2005 Jorge A. Millan Rodriguez pled guilty to unlawful intercourse with a minor (Pen. Code § 261.5(d)), received 36 months formal probation, and was later detained by ICE and removed from the U.S.
- Rodriguez admitted probation violations in 2007 and 2008 that resulted from ICE custody/deportation interfering with probation obligations.
- Rodriguez initially sought dismissal and reduction of his conviction under former statutes; those motions were denied and on appeal the court noted newly enacted Penal Code § 1473.7 (effective Jan. 1, 2017) might provide relief.
- After the appellate opinion, Rodriguez filed a § 1473.7 motion (July 10, 2017) to vacate his plea based on prejudicial failure to advise of immigration consequences; the trial court denied the motion on timeliness grounds and ruled without Rodriguez or his counsel present.
- On appeal the Court of Appeal reversed: it held the trial court abused its discretion by denying the motion as untimely (section 1473.7 did not exist in 2005) and violated Rodriguez’s right to counsel/presence by ruling without appointed counsel while he was in ICE custody; the case was remanded for further proceedings, including appointment of counsel if a prima facie case is alleged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of §1473.7 motion | People: motion not timely; defendant didn’t explain delay from statute effective date | Rodriguez: statute effective Jan 1, 2017; he filed within weeks of appellate court advising him; acted with reasonable diligence | Court: trial court abused discretion; defendant filed shortly after appellate advice and within reasonable diligence; remand required |
| Right to counsel / presence at hearing | People: amended §1473.7 removed language implying right to appointed counsel; no automatic right to appointed counsel for hearings | Rodriguez: when moving party in federal custody cannot appear, counsel must be appointed if a prima facie case is alleged | Held: trial court erred by ruling without defendant or counsel; if defendant in immigration custody waives presence or is excused, appointment of counsel is required when prima facie allegations are made; remand for appointment/merits |
| Standard of review for §1473.7 denials asserting ineffective assistance | People: abuse of discretion (relying on non-constitutional plea-withdrawal standards) | Rodriguez: to the extent constitutional right (IAC) implicated, review may be de novo as mixed question of law and fact | Court: did not definitively resolve the split but found abuse of discretion here; referenced de novo treatment where constitutional rights asserted and cited precedents supporting independent review |
| Remedy on procedural errors (timeliness and counsel) | People: alternative affirmance because record didn’t establish ineffective assistance (later withdrawn) | Rodriguez: procedural errors require reversal and remand for hearing with counsel | Held: reversal and remand for hearing on merits, appointment of counsel if prima facie case, and consideration on merits |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (counsel has duty to advise re immigration consequences)
- People v. Fryhaat, 35 Cal.App.5th 969 (hearing on §1473.7 requires appointed counsel for indigent moving party in immigration custody who sets forth prima facie allegations)
- People v. Ogunmowo, 23 Cal.App.5th 67 (timeliness and reasonable diligence under §1473.7; two-month filing after effective date deemed timely)
- People v. Braxton, 34 Cal.4th 798 (remand for hearing when appellate record insufficient to decide merits)
- In re Resendiz, 25 Cal.4th 230 (mixed question review when constitutional right implicated)
- People v. Ledesma, 43 Cal.3d 171 (appellate independent review for constitutional claims)
- People v. Rouse, 245 Cal.App.4th 292 (appointment of counsel where prima facie showing in collateral attack is required)
- People v. Shipman, 62 Cal.2d 226 (constitutional limits on denying counsel in collateral remedies)