People v. Fryhaat, E070847

• Decision Date: 31 May 2019
• Docket Number: E070847
• Citation: 35 Cal.App.5th 969,248 Cal.Rptr.3d 39
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kamal Abdul FRYHAAT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

35 Cal.App.5th 969

248 Cal.Rptr.3d 39

The PEOPLE, Plaintiff and Respondent,

v.Kamal Abdul FRYHAAT, Defendant and Appellant.

E070847

Court of Appeal, Fourth District, Division 2, California.

Filed May 31, 2019

William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Adrian R. Contreras and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CODRINGTON, J.

IINTRODUCTION

Defendant and appellant Kamal Abdul Fryhaat is a citizen of Jordan who had been living in the United States for over 30 years. In 2001, he pleaded guilty to various drug-related offenses and admitted to having suffered a prior prison term ( Pen. Code, § 667.5, subd. (b) ). In exchange, defendant was released on his own recognizance on various terms and conditions. Defendant subsequently violated his release terms and was sentenced to six years eight months in state prison.

Approximately 17 years later, in 2018, as he was facing deportation proceedings, defendant filed a motion to vacate his guilty plea pursuant to Penal Code¹ section 1473.7, arguing his conviction was legally invalid and not knowingly and intelligently made because neither his trial counsel nor the court advised him about the immigration consequences of his guilty plea. The trial court summarily denied defendant's motion, and defendant appealed.

On appeal, defendant argues the trial court erred in denying his motion to vacate his conviction because the court summarily denied his motion without a hearing, without his presence, and without appointed counsel in violation of section 1473.7. He therefore requests the matter be remanded for a hearing consistent with the provisions of section 1473.7. The People respond defendant is partially correct and that the matter must be remanded. Specifically, the People assert defendant is entitled to a hearing, but as recent amendments to section 1473.7 make clear, defendant does not have a right to appointed counsel and his presence can adequately be protected by use of telephonic or videoconference services. We reverse the order denying defendant's motion to vacate his conviction and remand the matter with instructions to the trial court to conduct a hearing pursuant to section 1473.7, evaluate defendant's request for appointed counsel, and to consider the motion on its merits.

IIFACTUAL AND PROCEDURAL BACKGROUND

On July 6, 2001, defendant pled guilty to manufacturing methamphetamine ( Health & Saf. Code, § 11379.6, subd. (a) ; count 1); possession of a controlled substance ( Health & Saf. Code, § 11378 ; count 2); and operating a place for the purpose of selling, giving away, or using a controlled substance ( Health & Saf. Code, § 11366 ; count 3). He also admitted that he had suffered a prior prison term conviction ( Pen. Code, § 667.5, subd. (b) ). In exchange, defendant was released on his own recognizance on various terms and conditions. Defendant subsequently violated his release terms and was sentenced to six years eight months in state prison.

According to defendant's declaration, after defendant was released from prison, the federal government arrested defendant and placed him in removal proceedings in federal immigration court. Defendant was released from immigration custody in 2009. In 2012, the federal government filed a motion to reopen defendant's removal proceedings. Defendant was arrested in 2016 by the federal government, and is currently in federal immigration custody awaiting removal proceedings.

About 17 years after defendant pled guilty, on April 15, 2018, defendant in propria persona filed a motion to vacate his conviction, asserting, in part, that his guilty plea was not knowingly and intelligently made, and that both his attorney and the trial court failed to properly advise him of the immigration consequences of his plea. Defendant also alleged that his attorney was ineffective for failing to recommend consultation with an immigration expert, failing to inform him prior to his plea that his resulting sentence would amount to a reportable offense under immigration laws, failing to research, identify, and pursue an alternative disposition which would have avoided the immigration consequences, and failing to present the pending immigration status as a mitigating fact to the court at sentencing.

On April 30, 2018, the trial court appointed the public defender who had previously represented defendant at the time of the plea.

On May 21, 2018, the court continued the matter to allow the People to respond to defendant's motion to vacate, and to provide the public defender or his investigator an opportunity to contact defendant.

On June 11, 2018, the trial court held a hearing on defendant's motion. At that time, the public defender informed the court that he had not had any communications with defendant and that his office had declared a conflict. The court then denied defendant's motion to vacate, finding as follows: "The Court has reviewed the paperwork submitted. There is no declaration, there is no evidence. Court will take judicial notice of the plea agreement in the file. Plea agreement says he was given the advisal. There's nothing to the contrary. Defendant was notified of today's date. At least, I asked the clerk to do that." After conferring with the clerk, the court stated, "He was notified. He's not present. I have no evidence. The allegations in the unverified portion of the brief are contrary to the record. [¶] The motion is denied."

On June 18, 2018, defendant submitted a letter to the court claiming he had not been notified of the hearing on his motion and requested the clerk of the court to provide him with a status on his case.

On June 28, 2018, defendant in propria persona filed a timely notice of appeal from the denial of his motion to vacate.

On July 15, 2018, defendant in propria persona filed a motion for reconsideration of the denial of his motion to vacate with a supporting declaration and exhibits. Defendant maintained that he was "detained by Immigration and Customs Enforcement (ICE)" in Adelanto and that the public defender never contacted him to obtain a declaration or arrange to have him participate at the hearing via telephone or videoconference "provided freely at the Federal Detention Facility."

On July 20, 2018, the trial court summarily denied the motion for reconsideration, finding that defendant's "New Declaration is inconsistent with the Declaration by Defendant dated 7/06/01."

IIIDISCUSSION

Defendant argues the trial court erred in summarily denying his motion to vacate his conviction without a hearing, without his presence and without appointed counsel in violation of section 1473.7. The People agree that defendant is entitled to a hearing and that the matter must be remanded to the trial court. However, the People believe that, pursuant to the recent amendments to section 1473.7, defendant does not have a right to appointed counsel and that his presence can adequately be protected by the use of telephonic or videoconference services.

A. Standard of Review

We apply de novo review "for a mixed question of fact and law that implicates a defendant's constitutional right. [Citation.] A defendant's claim that he or she was deprived of the constitutional right to effective assistance of counsel ‘presents a mixed question of fact and law,’ and we accordingly review such question independently. [Citations.] We accord deference to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel's deficient performance and resulting prejudice to the defendant. [Citations.]" ( People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76, 232 Cal.Rptr.3d 529 ; accord, People v. Tapia (2018) 26 Cal.App.5th 942, 950, 237 Cal.Rptr.3d 572 ; People v. Olvera (2018) 24 Cal.App.5th 1112, 1116-1117, 235 Cal.Rptr.3d 200.)

The construction and interpretation of a statute is a question of law that we consider de novo on appeal. ( Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672.) "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning.

[Citation.] We do not, however, consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute ... in order to determine the scope and purpose of the provision .... [Citation.]’ [Citation.] That is, we construe the words in question ‘ "in context, keeping in mind the nature and obvious purpose of the statute ...." [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.’ [Citations.]" ( People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.)

B. Section 1473.7—Right to a Hearing and Right to be Present

At the time defendant filed his motion, section 1473.7, subdivision (a), provided: "A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons: [¶] (1) The conviction or sentence is legally invalid due to a 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. [¶] (2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice." (Former § 1473.7, subd. (a).)

Accordingly, section 1473.7 allows noncitizens previously convicted of crimes to...