People v. AlatorrePeople v. Alatorre
In the wake of the arrest, Alatorre was forthcoming about his involvement. He had already been in jail for a year and a half, awaiting his trial, when he was offered a plea deal that would allow him to be released from custody with credit for time served. So in 2008, at the age of 24, he pleaded guilty to his first and only criminal charge—conspiracy to possess cocaine for sale.
Alatorre did not know this conviction would render him immediately deportable. He had come to the United States from Mexico when he was just four years old, and lived here as a permanent resident. In 2011, three years after his plea, he attempted to become a naturalized citizen, which had the unintended but very predictable consequence of alerting immigration authorities to his criminal conviction. Within a few months, he was deported to Mexico.
Alatorre lived in Mexicali after that, taking any available work he could find. Although his children, who are both U.S. citizens, were usually able visit him on the weekends, he was separated from life with his family—
But what “reasonable diligence” means under the facts of this case is not readily apparent. That is because, for most immigration-related
The trial court here never addressed that question, finding Alatorre‘s petition untimely based on a fundamental-but-mistaken assumption that he was obligated to exercise reasonable diligence beginning from the date that the statute went into effect. But the reality is that a reasonable person in Alatorre‘s circumstances—convicted in 2008, deported to Mexico in 2011, and working as a day laborer—would have little reason to discover 2017 changes to California law that might provide a new way to contest an old conviction.
After considering the text, history, and purpose of
Guided by the Supreme Court‘s recent decision in People v. Vivar (2021) 11 Cal.5th 510 (Vivar), we also independently review the record in this case and conclude that Alatorre‘s motion was timely as a matter of law. As to the merits of his request, we find he established prejudicial error within the meaning of
After his deportation, Alatorre periodically sought legal counsel, hoping to find a legal way to reenter the United States and reunite with his family. But differing reactions to his case from different attorneys left him confused about his prospects. He was unsure if he was being given proper advice, but was also generally aware that the laws might change at any time. For reasons that are not entirely clear, he decided in the late 2010‘s that he wanted to attempt to naturalize again. He contacted attorney Otis Landerholm for this purpose, and because he found Landerholm to be trustworthy and adept at explaining immigration law, he wanted to hire him. After saving up enough money to do so,3 he retained Landerholm in September of 2019.4 Landerholm assessed his case, identified Alatorre‘s 2011 conviction as a barrier, and referred him to the Nieves firm which specializes in postconviction relief. Less than a month later, Alatorre hired Nieves, borrowing considerable funds from his family in the United States to do so quickly.
The following March, Nieves filed a motion on Alatorre‘s behalf to withdraw his plea and vacate his conviction under
When Alatorre testified, he summarized his efforts to obtain relief after his deportation, explaining that he contacted lawyers in both Mexico and the U.S., periodically conducted internet research about immigration, and then enlisted his family‘s financial help to hire Nieves after Landerholm‘s referral. The trial court found these efforts insufficient, concluding that Alatorre did not exercise reasonable diligence because he failed to take any action to vacate his conviction starting in January 2017 when
A. Where the Adverse Immigration Consequences Predate Section 1473.7, a Court Assessing the Timeliness of a Petition Must Consider When the Petitioner Would Have Reason to Learn About New Theories of Relief, and Whether the Petitioner was Reasonably Diligent After that Time.
1. Our Standard of Review is Independent
The Supreme Court recently clarified that appeals from
Although the trial court invoked the concept of reasonable diligence when it denied Alatorre‘s petition, it did so without reference to where the term appears in
“[T]he meaning of the timeliness provisions set forth in subdivision (b) of
In considering the propriety of the trial court‘s denial, Perez gave a thorough account of changes to the statutory language regarding the timeliness requirements for immigration-related
By explaining the scope of the trial court‘s discretion under the amended statute, Perez clarified that “reasonable diligence” is not a timeliness requirement for
Here, it is not clear whether the trial court understood that it was making a discretionary decision when it denied Alatorre‘s motion as
Returning to the statutory text, we observe that the timeliness provision is silent on this point. It plainly states that the trial court may deem a motion untimely “if it was not filed with reasonable diligence after the later of” the triggering events, but says nothing about how the trial court should evaluate diligence if all of the triggering events happened before the statute was effective. Given this statutory silence, “we employ ‘the ordinary presumptions and rules of statutory construction’ ” to determine how to construe “reasonable diligence” in this factual context. (People v. Bear (2018) 25 Cal.App.5th 490, 498; see also American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 290 [“When a statute is silent on a point, the courts resort to statutory interpretation.“].)
We look next at the context of the timeliness provision, and draw what inferences we can from its contents, structure, and counterpart within the same section. “Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.” (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.) First, we observe that the provision‘s list of triggering events acts as a type of notice for the petitioner. Because
Turning to the broader structure of the timeliness provision, we find significant indicators of a legislative intent toward leniency in filing. A petitioner‘s reasonable diligence is measured from the later of three possible
Our final contextual clue comes from the timeliness provision that governs the other grounds for a
In March 2015, Assembly Bill No. 813,11 an early draft of what would become
Where the Legislature has expressly declined to include a provision in a statute, we will neither supply it anew nor affirm its implicit use. (See, e.g., Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 85 [“In construing a statute, we are ’ “careful not to add requirements to those already supplied by the Legislature.” ’ “]; Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 [“In the construction of a statute or instrument [courts do not] insert what has been omitted, or . . . omit what has been inserted“]; Santa Fe Transp. Co. v. State Bd. of Equalization (1959) 51 Cal.2d 531, 539 [when the Legislature fails to put limitations into a statute, it ” ‘must be deemed to have omitted [the language] intentionally’ “].) Consequently, we cannot endorse the framework used by the trial court to assess Alatorre‘s diligence.
What is less clear, however, is what framework trial courts should employ in evaluating the timeliness of petitions like Alatorre‘s, where the triggering event occurred before the statute‘s effective date.14 Because neither our textual nor purposive examinations of
Oregon‘s PCPA “was enacted to establish an exclusive procedure through which a person convicted of a state crime can challenge his or her conviction.” (Bogle, supra, 423 P.3d at p. 719.) It affords relief to a petitioner convicted of a crime who can establish a “substantial denial” of the petitioner‘s rights “in the proceedings resulting in the petitioner‘s conviction . . . [which] rendered the conviction void.” (
The PCPA provides a two year time limit to file a petition for postconviction relief after the final entry of judgment in a petitioner‘s case. But it also includes an “escape clause” allowing a later filing if the grounds for relief could not reasonably have been raised within the two-year period. (
In Gutale, supra, 435 P.3d 728, the Oregon high court considered whether an otherwise untimely PCPA petition fell within the escape clause. Gutale did not learn he was deportable as a result of a guilty plea until after the two-year window to file his petition had elapsed. (Id. at p. 731.) He argued he could not reasonably have known about the deficiency in his plea process before he was taken into ICE custody, but the Oregon intermediate appellate court affirmed the trial court‘s denial of his motion as untimely “based on the principle that ‘persons are assumed to know laws that are publicly available and relevant to them,’ including relevant immigration law.” (Id. at pp. 730, 734.) In rejecting the appellate court‘s mechanical application of a duty to know the law, Oregon‘s high court explained that a proper analysis of whether the escape clause applied would necessarily include consideration of “both whether the petitioner reasonably could have accessed the ground for relief and whether a reasonable person in the petitioner‘s
Although Gutale was construing a different statute with a different timeliness standard, we find its reasoning persuasive, not least because California‘s
In arguing that the Gutale formulation should not apply to petitions under
We begin by noting that the maxim “everyone is presumed to know the law” is not a presumption of fact, but rather a rule of substantive law. (Murphy v. Sheftel (1932) 121 Cal.App. 533, 538 (Murphy).)
Historically, the presumption that everyone knows the law has enjoyed widespread application in the criminal justice system,20 where it can be restated as the principle that “one may not escape criminal liability by claiming ignorance of the law.” (Hutson v. Wenatchee Fed. Sav. and Loan Asso (Wash. 1978) 588 P.2d 1192, 1196 (Hutson); accord, People v. McLaughlin (1952) 111 Cal.App.2d 781, 788 [“No doctrine is more universal or of more ancient vintage in the law than that ignorance of the law excuses no one“]; 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2021) Defenses, § 44.) In civil proceedings, the presumption is usually confined to cases where particular parties, by nature of their professions or business dealings, “ought to know the law, such as a state banking supervisor, who should be presumed to know banking law . . . .” (Hutson, supra, 588 P.2d at p. 1196; see also Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1260‒1262 [distinguishing between licensed and unlicensed brokers in concluding that licensed brokers presumptively know the law governing contract formation];
But as an early appellate decision observed, “the proposition that everyone is presumed to know the law rests upon no basis of fact.” (Murphy, supra, 121 Cal.App. at p. 538.) It is, in reality, “based on a fiction, because no man can know all the law . . . .” (People v. O‘Brien (1892) 96 Cal. 171, 176.) But that fiction is justified because “[t]he rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement.” (Ibid.) Because it is primarily a mechanism for convenience in administrating the law (Murphy, at p. 538), the presumption is “[not] available for the purpose of supplying evidence of a fact material to [a] controversy nor to prevail against the real truth as to any particular situation except as regards punishment for a criminal offense or responsibility for actual damage for the violation of private rights [citation].” (Id. at pp. 538‒539.) In other words, as a general rule the presumption only prevents someone from claiming ignorance of the law in order to escape criminal or civil responsibility. It has no application in a case like this to deny a person statutory relief to which they would otherwise be entitled merely because they might have discovered their statutory remedy if they had reason to look.
A closer examination reveals yet another reason to refrain from applying the presumption in cases like this: it does not apply to foreign nationals. A person is not presumed to know the law of another state or country where they do not live or work. (Tavares v. Glens Falls Ins. Co. (1956) 143 Cal.App.2d 755, 760 [“There is no presumption as to knowledge of
In section 1473.7, the Legislature has expressed its particular concern for immigrants who suffer convictions without understanding that it will in the future result in their deportation or other adverse immigration consequences. It is a highly unique statute in that a failure to understand the law is the essential predicate for relief. To insist in this context that petitioners are irrebuttably presumed to be aware and appreciate the significance of a new change in the law—despite all evidence to the contrary—would deny relief by substituting reliance on one legal misunderstanding for another in contravention of a manifest legislative intent.
In summary, “while it is essential to the due administration of justice that no person avoid liability for his wrongdoings on a claim of ignorance of
5. To Assess Timeliness for Petitioners Whose Adverse Immigration Events Predate Section 1473.7, Courts Should Ask When Petitioners Had Reason to Become Aware of the Statutory Remedy
Putting all of these components together, we conclude it is most consistent with the meaning and purpose of section 1473.7 to evaluate reasonable diligence in cases where the petitioner‘s triggering events predated the law by determining whether or when the petitioner had a reason to inquire about new legal grounds for relief, and assessing the reasonableness of the petitioner‘s diligence from that point forward. Just as the triggering events in the statute provide petitioners still in the U.S. with notice of a fact (such as pending deportation), courts must look for an analogous event in the life of petitioners like Alatorre that would provide notice of a change in the law that the petitioner would otherwise have no occasion to learn about (such as the availability of relief under section
B. Independently Reviewing Alatorre‘s Motion, We Conclude It Was Timely and Should Be Granted.
Having concluded that the trial court made an error of law when it faulted Alatorre for not exercising reasonable diligence from the point at which a change in the law favorable to him took effect, we now consider how to remedy that mistake. In many similar scenarios, we would remand for reconsideration by the trial court. Here, however, as a matter of law Alatorre‘s motion was both timely and legally sufficient to demonstrate his entitlement to relief under section 1473.7. Consequently, there is no need for further consideration in the superior court, and the “appropriate remedy is to direct the trial court to grant the motion.” (People v. Camacho (2019) 32 Cal.App.5th 998, 1012 (Camacho).)
1. Alatorre‘s Motion Was Timely
As the Perez decision made clear, immigration-related petitions are presumptively timely once the petitioner is released from custody, and trial courts can only deem a motion untimely if it was not filed with reasonable diligence after the later of the triggering events. (Perez, supra, 67 Cal.App.5th at pp. 1013‒1014;
Once we identify the point at which Alatorre would have reason to look for legal relief, we evaluate his diligence from that time forward. A reasonably diligent person in Alatorre‘s position would either follow up on the Nieves referral or, at a minimum, begin to investigate post-conviction relief. Here, Alatorre accomplished the former in a month. He was referred by Landerholm in August of 2019, and by September he had retained Nieves.24 A period of approximately one month between a petitioner‘s triggering event and the hiring of legal counsel cannot be considered an unreasonable delay. (People v. Rodriguez (2019) 38 Cal.App.5th 971, 979 [petitioner who filed a motion less than a month after the appellate court alerted him that he might qualify for section 1473.7 relief exercised reasonable diligence].) We thus conclude that Alatorre acted with reasonable diligence. Given that he is no longer in custody, his motion was timely. (
We turn now to the merits of Alatorre‘s petition. Pointing to various statements by the judge during the hearing,25 he asserts that the trial court “implicitly ruled that [he] would have prevailed on the merits” but for its timeliness finding. Not surprisingly, the People dispute this characterization of the court‘s comments. And while it is evident that the court considered timeliness a threshold matter to be addressed before the merits of the petition, it is far less clear whether or to what extent the court expressed views on the merits of Alatorre‘s claim assuming his petition was timely.
Fortunately, interpreting the superior court‘s comments is unnecessary because whether a petitioner establishes prejudicial error is “[u]ltimately . . . for the appellate court to decide, based on its independent judgment.” (Vivar, supra, 11 Cal.5th at p. 528.) Developing caselaw construing section 1473.7 makes it clear that on the undisputed facts of this case, Alatorre is entitled to relief.
Section 1473.7, subdivision (e)(1) indicates that the trial court “shall grant the motion to vacate” if the moving party shows, by a preponderance of the evidence, that the party is entitled to relief. When the motion is based on a misunderstanding of immigration consequences, the petitioner must show the challenged conviction is either causing or could cause (1) removal or (2) the denial of an immigration benefit, lawful status, or naturalization. Subdivision (e)(4) further specifies that to grant relief on an immigration-related motion, “the only finding that the court is required to make is whether the conviction is legally invalid due to prejudicial error damaging
Here, there can be little doubt Alatorre has demonstrated that the conviction he challenges caused his deportation and has twice undermined his attempts to naturalize. These facts were uncontested. We thus proceed to consider whether an error occurred that damaged his ability to understand the immigration consequences of his plea, and if so, whether Alatorre was prejudiced by that error.
a. The error can be a defendant‘s own
Alatorre submitted a declaration in support of his motion asserting that he did not understand when he pleaded guilty that his conviction would make him deportable,26 and that if he had known, he would have proceeded to trial rather than accept the plea. He further stated that his defense attorney did not advise him of any adverse immigration consequences.27
When Alatorre filed his motion, the courts of appeal were still coming to terms with the full effect of the Legislature‘s 2019 amendment to section 1473.7. Among other things, the amendment clarified that successful immigration-related petitions did not have to hinge on ineffective assistance of counsel claims—a requirement that had been read into the first version of the section by reviewing courts. (Camacho, supra, 32 Cal.App.5th at p. 1005;
Camacho was the first case to recognize that the “error” sufficient to invalidate a plea for purposes of section 1473.7 “included defendant‘s own error in believing that a negotiated plea . . . would avoid making him deportable, and in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.”29 (Camacho, supra, 32 Cal.App.5th at p. 1009.) And while this error assessment was arguably nuanced because Camacho identified two separate errors—one of which was attributable to the defendant and the other to his counsel (ibid.)—later cases included no similar subtleties.
Thus in People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia), the court held that to establish error sufficient to trigger a section 1473.7 petition, “a person need only show by a preponderance of the evidence [that] he did not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse immigration consequences of the plea.” (Id. at p. 862.) The court
Later cases have uniformly followed the lead of Camacho and Mejia, concluding that a petitioner‘s own subjective error qualifies for relief under the statute if the evidence shows he or she misunderstood the immigration consequences of a plea deal. (See People v. Jung (2020) 59 Cal.App.5th 842, 856 (Jung) [an “error” under section 1473.7 “may be the moving party‘s own mistake of law or inability to understand the potential adverse immigration consequences of the plea“]; People v. Rodriguez (2021) 68 Cal.App.5th 301 (Rodriguez) [citing Mejia and Jung].) Under this principle, the “error” is that the petitioner subjectively misunderstood the immigration consequences of the plea, and there is no additional need to establish this mistake was caused by some “third party.”30 (Jung, at p. 856.)
b. Alatorre has demonstrated a right to relief
Alatorre has thus established error under section 1473.7. To assess prejudice, we now consider whether he has ” ‘demonstrat[ed] a reasonable probability that [he] would have rejected the plea if [he] had correctly understood its actual or potential immigration consequences.’ ” (Vivar, supra, 11 Cal.5th 510, 529–530.) And “we have long required the defendant corroborate such assertions with ’ “objective evidence.” ’ ” (Id. at p. 530; see also Mejia, supra, 36 Cal.App.5th at p. 872 [“courts should not simply accept a defendant‘s statement of regret regarding the plea [but] should also ‘look to contemporaneous evidence’ “].) This is a “totality of the circumstances” analysis, where factors such as the petitioner‘s ties to the U.S., plea
There is little in the record to establish Alatorre‘s priorities in discussing a plea deal with his defense counsel, and indeed, part of his claim is that he spoke infrequently with his defense attorney and that another attorney actually communicated the prosecutor‘s offer to him. But other important factors of a type frequently highlighted by appellate courts weigh heavily in Alatorre‘s favor—particularly his close ties to the U.S. (Mejia, supra, 36 Cal.App.5th at p. 872 [citing Mejia‘s deep ties to the U.S. as “compelling evidence” of prejudice]; Jung, supra, 59 Cal.App.5th at p. 858 [prejudice demonstrated by the fact that Jung was brought to the United States at the age of three, grew up and attended school here, and had her entire network of “friends, family, and community ties” in the United States]; Rodriguez, supra, 68 Cal.App.5th at p. 324 [describing Rodriguez‘s “deep, lifelong ties to the United States“]; Camacho, supra, 32 Cal.App.5th at p. 1011 [prejudice established because Camacho was “brought to the United States over 30 years ago at the age of two, has never left this country, and attended elementary, middle, and high school in Los Angeles county [and] is, and at the time of his plea was, married to a United States citizen with an American citizen son, and now also an American citizen daughter“]; accord, Vivar, supra, 11 Cal.5th at p. 530.)
The facts presented in Alatorre‘s case are no less compelling. He was still a preschooler when he came here in 1987. All of his family lived in the United States, including his parents who passed away after he was deported. Alatorre married a U.S. citizen, and together they have two children who are both citizens. His single involvement with the criminal justice system led to his continuing separation from his family. And in the years he spent living in
Given all of this, we find it reasonably probable that if he had understood the certain immigration consequences of his plea, he would have either pressed for an immigration-neutral deal, if possible, or taken his case to trial. His deep ties to the United States provide “contemporaneous evidence” that avoiding deportation would have been a paramount concern if he had truly understood his situation. (Lee v. U.S. (2017) 137 S.Ct. 1958, 1961.) Alatorre appears to be in the class of defendants who would “risk additional prison time in exchange for holding on to some chance of avoiding deportation.” (Id. at p. 1962.) He has thus carried his burden and is entitled to relief. (
The order denying the section 1473.7 motion is reversed. The matter is remanded to the superior court with directions to grant the motion and vacate the conviction.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.