People v. Gregor
| Decision Date | 12 August 2022 |
| Docket Number | C090171 |
| Citation | 82 Cal.App.5th 147,298 Cal.Rptr.3d 238 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Andrew Lawrence GREGOR, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
82 Cal.App.5th 147
298 Cal.Rptr.3d 238
The PEOPLE, Plaintiff and Respondent,
v.
Andrew Lawrence GREGOR, Defendant and Appellant.
C090171
Court of Appeal, Third District, California.
Filed August 12, 2022
Meredith Lee Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Stephanie A. Mitchell, Deputy Attorney General, for Plaintiff and Respondent.
Duarte, Acting P. J.
Defendant Andrew Lawrence Gregor, a naturalized citizen from Australia, pleaded guilty to a felony sex offense that was later reduced to a misdemeanor and dismissed after early termination of probation. After he was informed he was not able to sponsor his father for a family visa due to this conviction, defendant filed the instant motion pursuant to Penal Code section 1473.7 and sought to withdraw his plea claiming he was unable to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of his conviction.1 The trial court denied the motion; defendant appealed.
We affirm the order denying the motion to withdraw the plea.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2011, pursuant to a plea agreement, defendant pleaded guilty to felony contacting a minor with the intent to commit a sexual offense ( § 288.4, subd. (b) ; count 2), and no contest to misdemeanor contact with a minor with the intent to commit a sex offense ( § 288.4, subd. (a)(1) ; count 3). Sentencing was delayed for one year. If defendant successfully completed a sexual integrity program, count 2 was to be dismissed. In the "Felony Change of Plea; Waiver of Rights; Advisement of Consequences; Findings and Order" form, defendant initialed the box stating, "If I am not a citizen of the United States, my plea could result in my being deported from, or excluded from admission to the United States, or denied citizenship." When he entered his plea, defendant acknowledged reading, understanding, and giving up each right listed on the form.
On September 27, 2012, the trial court dismissed count 2 and placed defendant on informal probation for three years on count 3. Since the time of sentencing, this case has undergone a series of procedural maneuvers we do not recount here, as only the final motion is the subject of this appeal.
In August 2016, defendant received a letter from the United States Citizenship and Immigration Services (USCIS) advising him that the USCIS
intended to deny his petition for a family-based visa for his wife. The USCIS identified a federal law prohibiting United States citizens and lawful permanent residents who have been convicted of specified offenses against a minor from filing a family-based visa petition.
On March 15, 2018, defendant filed a motion pursuant to section 1473.7. We will discuss the relevant statutory provisions in detail post , but it suffices to say here that this section allows a "person who is no
longer in criminal custody" to file a motion to vacate a conviction or sentence where 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 conviction or sentence." ( § 1473.7, subd. (a)(1).)
Although defendant originally alleged only that he had not been advised of the requirement to register as a sex offender for life, after briefing and oral argument he added the contention that he was unable to understand that his plea would result in the inability to sponsor his father for citizenship. He also filed a copy of the letter from the USCIS regarding the rejection of his application for a family-based visa for his wife. While the motion was pending, the Legislature proposed amendments to section 1473.7.2 The trial court denied defendant's motion without prejudice to refiling if the amendments passed.
The Legislature subsequently passed the bill, and defendant renewed his argument that he was unable to meaningfully and knowingly accept the adverse immigration consequences of his plea because he was not informed he would be unable to petition for a family-based visa to sponsor his wife or his father. The trial court again denied the motion. The court found defendant personally stood in no worse position in terms of immigration consequences at the time of the motion than he did before he pleaded guilty. Further, the court concluded the right to sponsor a person to become a citizen was not an "application for an immigration benefit" as set forth in the statute. Finally, the court found defendant's inability to sponsor his father was a collateral consequence and, at best, a minor one, as the father could seek another sponsor.
Defendant timely appealed the order. After multiple extensions of time for briefing and various additions to the record, the case was fully briefed on November 14, 2021, and assigned to this panel on December 14, 2021. The case was argued and submitted on July 20, 2022. At oral argument, appellate counsel for defendant requested for the first time that her client's name be
redacted from this opinion; this court allowed counsel to make that request in a written motion and permitted the Attorney General's representative to respond thereto.
DISCUSSION
I
Redaction
We first explain why we deny defendant's request to refer to him by his initials in this opinion. Defendant bases his argument on California Rules of Court, rule 8.90(b)(10) and (11).3 Rule 8.90(b)(10) is a "catch-all" provision that allows the court to use first name or initials "in other circumstances in which personal privacy interests support not using the person's name." Rule 8.90(b)(11) provides for the use of initials of "[p]ersons in other circumstances in which use of that person's full name would defeat the objective of anonymity for a person identified in (1)-(10)."
We are aware of no authority applying rule 8.90(b)(10) and (11) to criminal defendants except in the narrow circumstance--not applicable here--in which the sole purpose of the appeal is to attempt to vindicate a statutory privacy right. (See, e.g.,
People v. D.C. (2020) 54 Cal.App.5th 727, 730, fn. 1, 269 Cal.Rptr.3d 163 ; People v. E.B. (2020) 51 Cal.App.5th 47, 52, fn. 1, 264 Cal.Rptr.3d 678.) Additionally, while defendant argues that he may eventually be able to request that the trial court seal his criminal records in the event that he is successfully able to vacate his plea and his case is referred to and resolved in veteran's court (see § 1170.9, subd. (h)(4)(D) ), that argument is entirely speculative.
Although we appreciate defendant's situation and corresponding request, his position in this appeal is that of a criminal defendant seeking relief from the denial of his motion to withdraw a guilty plea. We therefore deny his request for redaction.
II
Section 1473.7
Defendant argues his ability to sponsor his father for a family-based visa is an immigration benefit under federal law, and because he has
demonstrated this immigration benefit is impaired by his guilty plea, section 1473.7 required the court to grant his motion to set aside his plea. In so arguing, defendant asserts that the denial of an immigration benefit necessarily constitutes an adverse immigration consequence under section 1473.7, subdivision (a)(1). However, as we will explain, even assuming for the sake of argument that the right to sponsorship is an immigration benefit under federal law, we conclude that right's impairment is not an adverse immigration consequence such that defendant may set aside his conviction under section 1473.7, subdivision (a)(1). Thus, the trial court properly denied defendant's motion.
A. Standard of Review
This is a question of statutory interpretation, which we review de novo. ( People v. Medina (2018) 24 Cal.App.5th 61, 66, 233 Cal.Rptr.3d 758.) "Under fundamental rules of statutory construction, we must ascertain the intent of the Legislature, or the electorate, from examining the statute as a whole in order to effectuate the purpose of the law." ( People v. Saelee (2018) 28 Cal.App.5th 744, 752, 239 Cal.Rptr.3d 475.) "Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction." ( People v. Johnson (2002) 28 Cal.4th 240, 244, 121 Cal.Rptr.2d 197, 47 P.3d 1064.)
"Nevertheless, the ‘plain meaning’ rule does not prevent a court from determining whether the literal meaning of the statute comports with its purpose. [Citations.] Thus, although the words used by the Legislature are the most useful guide to its intent, we do not view the language of the statute in isolation. [Citation.] Rather, we construe the words of the statute in context, keeping in mind the statutory purpose. [Citation.] We will not follow the plain meaning of the statute ‘when to do so would "frustrate[ ] the manifest purposes of the legislation as a whole or [lead] to absurd results." ’ [Citations.] Instead, we will ‘ "interpret legislation reasonably and ... attempt to give effect to the apparent purpose of the statute." ’ " ( MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083, 36 Cal.Rptr.3d 650.) Thus, to determine the most reasonable interpretation of a statute, we look to its legislative history and background. ( Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77 ; People v. DeJesus (2019) 37 Cal.App.5th 1124, 1129-1130, 250 Cal.Rptr.3d 840.) " ‘We must harmonize "the various parts of a statutory enactment
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