People v. Alatorre

Decision Date22 October 2021
Docket NumberD077894
Citation70 Cal.App.5th 747,286 Cal.Rptr.3d 1
Parties The PEOPLE, Plaintiff and Respondent, v. Carlos Argenis Figueroa ALATORRE, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.


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.

Penal Code section 1473.7,1 which was enacted by the Legislature in 2016 and became effective on January 1, 2017, created a new avenue of postconviction relief for noncitizens who pleaded guilty to a crime without fully comprehending the immigration consequences that might follow. (Stats. 2016, ch. 739 (Assem. Bill No. 813) § 1.) Although these motions are generally timely if a petitioner is no longer in custody, they can be deemed untimely if not brought "with reasonable diligence." ( § 1473.7, subd. (b).) In early 2020, Alatorre filed a motion to vacate his conviction under this statute, only to have the trial court deny it as untimely based on a finding that he did not exercise "reasonable diligence" to become aware of the existence of the statutory remedy after the law became effective.2

But what "reasonable diligence" means under the facts of this case is not readily apparent. That is because, for most immigration-related section 1473.7 petitions, diligence in bringing a motion is evaluated from the point in time that a petitioner faces a clear adverse immigration consequence as a result of the underlying conviction. Here, however, Alatorre's adverse event—his deportation—occurred years before section 1473.7 was enacted. The interesting question posed by this case is how a petitioner's "reasonable 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 section 1473.7, we reverse the trial court's ruling, finding that it applied an incorrect legal standard when it assumed Alatorre was obligated to learn about section 1473.7 starting in January 2017, when the section became effective. Borrowing from principles established in cases interpreting a similar statute in Oregon, we hold that where a petitioner's adverse immigration consequences predate January 1, 2017, a court assessing the timeliness of a section 1473.7 motion must determine when the petitioner would have had reason to seek legal help or otherwise investigate new forms of postconviction relief, and evaluate diligence from that point forward, in light of all the circumstances.

Guided by the Supreme Court's recent decision in People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425 ( 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 section 1473.7, and we remand to the trial court with instructions to issue an order granting the motion.


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 section 1473.7, alleging his plea was invalid due to his counsel's failure to adequately advise him of the 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 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 section 1473.7 took effect. The court implicitly assumed that any timeliness inquiry traced from the effective date of the statute. In the court's view, the fact that Alatorre had "stumbled upon" section 1473.7 only after consulting a lawyer about naturalization weighed against him. It ultimately denied his motion as untimely.


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 section 1473.7 hearings are subject to independent review. ( Vivar, supra , 11 Cal.5th 510, 525, 278 Cal.Rptr.3d 2, 485 P.3d 425.) Under this standard, " ‘an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.’ " ( Ibid. ) Independent review extends particular deference to trial court findings "that are based on "the credibility of witnesses the [superior court] heard and observed" " but not to findings drawn from the "cold record" in the proceeding, since the trial and appellate courts are in the same position when tasked with interpreting such materials. ( Id. at p. 527, 278 Cal.Rptr.3d 2, 485 P.3d 425.) In this case, we consider the trial court's interpretation of the reasonable diligence standard, which presents a question of law.7

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 section 1473.7. We begin there, with the plain language of the statute, and construe "reasonable diligence" under established principles of statutory construction: " We must look to the statute's words and give them their usual and ordinary...

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