THE PEOPLE, Plaintiff and Respondent, v. CARLOS ARGENIS FIGUEROA ALATORRE, Defendant and Appellant.
D077894
Court of Appeal, Fourth Appellate District, Division One, State of California
October 22, 2021
CERTIFIED FOR PUBLICATION; (Super. Ct. No. JCF18829)
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
In the mid-2000s, Carlos Argenis Figueroa Alatorre was working as a car salesperson and had a second baby on the way. As sales plummeted and he found himself out of a job, he was approached by his brother-in-law, Luis, with an opportunity to make some quick cash. Although he knew Luis was involved in something unsavory, Alatorre began working for him, acting as a lookout and a driver for about two months before the United States Department of Justice closed in on Luis‘s drug importation ring, arresting Alatorre along with several others at a border patrol checkpoint where agents seized over thirty kilograms of cocaine.
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—not only his wife and children, but also his parents, four siblings, and dozens of nieces, nephews, and cousins—all of whom lived in the U.S.
But what “reasonable diligence” means under the facts of this case is not readily apparent. That is because, for most immigration-related
diligence” should be evaluated when the ripening of an unexpected immigration consequence predates the creation of an avenue of relief.
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
FACTUAL AND PROCEDURAL BACKGROUND
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
immigration consequences he would face.5 At the motion hearing in July 2020, the trial court‘s primary concern was the timeliness of Alatorre‘s petition rather than its merits.6 In focusing on this issue, the trial court stated its view that “reasonable due diligence . . . assumes that a petitioner is attempting to avail himself of knowledge and attempting to seek relief continuously and . . . at least attempting to procure it.”
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
DISCUSSION
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
2. The Statute Itself is Ambiguous as to the Application of “Reasonable Diligence” for Petitioners Whose Adverse Immigration Consequence Predates Section 1473.7
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
Subdivision (a)(1) of the statute provides in relevant part that a motion to vacate can be brought if the “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.” As the language of the statute makes clear, it was enacted to create postconviction relief for individuals whose convictions are legally invalid due to prejudicial error—but who are no longer imprisoned or restrained, and for that reason are unable to file a habeas corpus petition. (Vivar, supra, 11 Cal.5th 510, 523.)
Notably, the law contains two separate timeliness provisions. The one that governs immigration-related petitions contains no rigid time constraint; in fact, these motions are timely by default as long as the individual is no longer in custody. (
“[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
67 Cal.App.5th at p. 1013.) It reasoned from the Legislature‘s initial use of “shall” that “courts were required to deny a motion when the moving party had not acted with reasonable diligence in filing the motion.” (Ibid.) But it went on to explain that the Legislature made significant changes to this language when it amended the section two years later. In the updated version, which became effective in 2019, the Legislature specified that motions “shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody,” but “may be deemed untimely filed if it was not filed with reasonable diligence after the later of” the triggering events. (Ibid.) From this shift in language, Perez concluded that as a “general rule” motions submitted by petitioners no longer in custody were timely (id. at p. 1012), but as an exception to that rule, if a trial court finds that a petitioner did not exercise reasonable diligence, the court may exercise its discretion to deem a motion untimely. (id. at p. 1015.) In other words, “[t]he lack of reasonable diligence does not automatically require the superior court to deem the motion untimely,” but if the court elects to consider timeliness, it may do so in light of the “totality of the circumstances.” (Ibid.)
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 untimely. But of course, it did not have the benefit of Perez‘s statutory construction at the time. Nor did it give a clear indication—as the trial court in Perez did—that it would have granted the motion if it understood that it had the discretion to do so. Regardless, the heart of the trial court‘s evaluation of timeliness in this case lies elsewhere and requires that we address an issue Perez did not reach: how to analyze whether a petitioner exercised reasonable diligence in cases where the petitioner‘s triggering events predate
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
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 subdivision (a)(1) of
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
triggering events. Under this framework, the same petitioner could receive notice to appear in immigration court (
Our final contextual clue comes from the timeliness provision that governs the other grounds for a
While this contextual analysis yields significant indicators of general legislative intent and motivations, it still does not clarify how to construe “reasonable diligence” in the specific factual situation before us. We thus turn to the section‘s purpose and history for further guidance. (See Arias, supra, 45 Cal.4th at p. 177 [in the service of statutory construction, “we may consider a variety of extrinsic aids, including legislative history, the statute‘s purpose, and public policy“].) There, we find strong evidence that the reasonable diligence standard imposed by the trial court in this case contravenes the Legislature‘s intent.
In March 2015, Assembly Bill No. 813,11 an early draft of what would become
Alatorre means he must “[attempt] to avail himself of knowledge and . . . seek relief continuously”12 from the time when
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.
3. The Meaning of “Reasonable Diligence” in the Context of Postconviction Relief
What is less clear, however, is what framework trial courts should employ in evaluating the timeliness of petitions like Alatorre‘s, where the triggering
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.” (
Annotated Statutes, section 138.530(1)(a) claim using a Padilla theory.15 (See, e.g., Gutale v. State (Or. 2019) 435 P.3d 728, 729 (Gutale).) These similarities enable us to draw helpful insights from Oregon authority construing the bounds of PCPA relief.
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
situation would have thought to investigate the existence of that ground for relief.” (Id. at p. 734.)16
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).) It is another way
at the time petitioner was convicted. (Ibid.) Drawing from other cases, it further stated that “‘the applicability of the escape clause turns on whether the information existed or was reasonably available to the petitioner, and not on whether the petitioner‘s failure to seek the information was reasonable.‘” (Id. at p. 552.) The Oregon Supreme Court vacated the Hernandez-Zurita decision and remanded for reconsideration in light of Gutale (Hernandez-Zurita v. State (Or. 2019) 451 P.3d 236), “after which the case was jointly dismissed by the parties.” (Canales-Robles v. Laney (Or. 2021) 314 Or.App. 413, 420, fn. 1.) Finding Gutale‘s reasoning more compelling, we use it for guidance.
of saying that ignorance of the law will not be recognized as a legal defense. The presumption cannot be rebutted even in the face of overwhelming evidence of actual ignorance.19 (See, e.g., Leonard, Towards A Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model Penal Code (2003) 6 Buff. Crim. L.Rev. 691, 770 [citizens are presumed to know the law “not as a rebuttable factual matter but as a legal rule“].)
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
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 a law where the law is the law of a foreign country.“].)21 The reason for this is apparent when we consider that Alatorre, a Mexican citizen living in Mexico, would have even less opportunity to learn about a newly enacted California law than the average Californian—though we doubt many residents of this state keep abreast of changes to the
In
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 the law, ‘the law is not so senseless as to make absurd presumptions of fact.’ ” (Claremont v. Truell (N.H. 1985) 489 A.2d 581, 586.) Here, the presumption that Alatorre could or should have known about
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
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
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
2. Alatorre Established Prejudicial Error
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
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
Camacho was the first case to recognize that the “error” sufficient to invalidate a plea for purposes of
Thus in People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia), the court held that to establish error sufficient to trigger a
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
This is not to say, of course, that a
b. Alatorre has demonstrated a right to relief
Alatorre has thus established error under
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
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 the shadow of that mistake, he stayed close to the border so he could see his children on weekends.
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. (
DISPOSITION
The order denying the
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.