People v. Morales

• Court: California Court of Appeals
• Writing for the Court: STEWART, J.
• Citation: People v. Morales, 235 Cal.Rptr.3d 776, 25 Cal.App.5th 502 (Cal. App. 2018)
• Decision Date: 24 July 2018
• Docket Number: No. A152530,A152530
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ruben Anaya MORALES, Defendant and Appellant.

25 Cal.App.5th 502

235 Cal.Rptr.3d 776

The PEOPLE, Plaintiff and Respondent,

v.Ruben Anaya MORALES, Defendant and Appellant.

No. A152530

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

Filed July 24, 2018

Stanley Dale Radtke, Burlingame, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Christina vom Saal, Deputy Attorney General, for Plaintiff and Respondent.

STEWART, J.

Appellant Ruben Anaya Morales was convicted of a 2002 drug offense, to which he pleaded no contest. He served his sentence, voluntarily departed the United States and reentered the country. In 2017, while residing in the United States, he filed a motion to vacate this conviction under the newly enacted Penal Code section 1473.7¹ as a part of his effort to obtain legal status via a "U visa." Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for a U visa, and that he pleaded no contest in 2002 only as a result of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the United States.

Section 1473.7, subdivision (a)(1) authorizes a noncitizen convicted of a crime upon pleading no contest who is now free from custody to prosecute a motion to vacate that conviction for ineffective assistance of counsel when the conviction has caused unforeseen actual or potential adverse immigration consequences. Morales filed exactly such a motion. Nonetheless, the superior court denied his motion without prejudice based on its interpretation of section 1437, subdivision (b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. Both Morales and the Attorney General contend the court ignored the plain terms of section 1473.7, subdivision (a)(1) and wrongly determined that section 1473.7, subdivision (b) eviscerates the broad authority granted by subdivision (a)(1) and bars a noncitizen from bringing any motion under section 1473.7 until after the entry of a final removal order. We agree. The superior court's holding is an untenable construction of the statute that is contradicted by the statute's plain language and its legislative history, and would produce absurd results. Therefore, we reverse the trial court's decision and remand for further proceedings consistent with this opinion.

BACKGROUND

In January 2002, the San Mateo County District Attorney charged Morales in an amended information with felony possession for sale of a controlled substance, methamphetamine ( Health & Safety Code, § 11378 ), and the felony transportation, importation, and selling of a controlled substance, also methamphetamine (id. , § 11379). Both counts also included weight enhancement allegations. As part of a negotiated disposition, Morales, represented by counsel, entered a no contest plea to possession for sale of a controlled substance. He also admitted the truth of the accompanying weight enhancement allegation, but the court later struck it and dismissed the transportation count. It sentenced Morales to a three-year prison term, with 199 days of credits. Morales served his sentence, voluntarily departed the United States for Mexico in the face of deportation and reentered the United States shortly thereafter.

In 2016, the Legislature enacted section 1473.7, which became effective January 1, 2017. (Stats. 2016, ch. 739, § 1; People v. Perez (2018) 19 Cal.App.5th 818, 820, 228 Cal.Rptr.3d 95 ( Perez ).) Section 1473.7 allows noncitizens previously convicted of crimes to which they pleaded no contest or guilty and who are no longer imprisoned or otherwise legally restrained to challenge their convictions based on, among other things, their counsels' failure to properly inform them of "the actual or potential adverse immigration consequences" of their pleas. ( § 1473.7, subd. (a)(1).) Section 1473.7 further provides that such a motion "shall" be filed with "reasonable diligence" after the later of the date the noncitizen receives a court or government notice asserting the conviction as a basis for removal or the date a removal order based on the conviction becomes final. ( § 1473.7, subd. (b)(1), (2).)²

In May 2017, a little more than five months after section 1473.7 went into effect, Morales filed his motion. In a sworn declaration, he asserted that his conviction was his only criminal case, and that at the time he filed his motion he was 34 years old, married, a father and the sole financial supporter of his family.

Morales did not file his motion in the face of any removal proceeding. Rather, he filed it as part of his effort to obtain legal status in the United States. He stated in a declaration that he had been a victim of a store robbery in East Palo Alto in 2009, and that he had assisted law enforcement's investigation of that crime. He contended that his assistance made him eligible to receive a "U visa," a temporary nonimmigrant visa created by Congress to provide legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized. (See 8 U.S.C. § 1101(a)(15)(U) ; Fonseca-Sanchez v. Gonzales (7th Cir. 2007) 484 F.3d 439, 442, fn. 4.) Morales further declared he had submitted a U visa application, that this application was pending, and that it included a written certification from a law enforcement official that he had cooperated in the investigation of the store robbery. In this certification, a copy of which Morales attached to his declaration, a law enforcement official identified Morales as the victim of armed robbery, false imprisonment and felonious assault, or attempts to commit these crimes, and stated that Morales had cooperated in the investigation and prosecution of the perpetrators.

Morales also declared he had recently been counseled that his 2002 conviction barred him from "ever" having his U visa application granted. He contended that a U visa would not be granted to a noncitizen who was "inadmissible" under federal immigration law for his drug offense, citing section 214.1(a)(3)(I) of volume 8 of the Code of Federal Regulations, and section 1182, subdivision (a)(2)(A)(i)(II) of volume 8 of the United States Code. He also declared that in 2002 neither his attorney nor the court told him his conviction would cause him to be deported or bar him from ever coming into the United States again, and that he would not have entered his no contest plea if he had known his conviction would cause his deportation. He further contended he had properly brought his motion under section 1473.7 even though he was not a subject of removal proceedings.

The district attorney opposed Morales's motion on multiple grounds. These included that the motion was not proper under the terms of section 1473.7 in the absence of any removal proceedings against Morales.

At an August 2017 court hearing on Morales's motion, Morales presented three witnesses. First, Savas Loikedis testified that he defended Morales in the 2002 case. Loikedis did not recall Morales. Referring to a plea form executed by Morales in 2002, Loikedis said that normally, "when I advise a client and I go over the form with them—and ... [deportation] would be something I would advise them; that [deportation] would be a consequence, that they would have immigration problems. [¶] As to whether I specifically told him he would be deported and never allowed to return, I can't sit here and say that I told him that." He would not have personally read and explained to Morales the form because Loikedis did not speak Spanish, but would have had an interpreter read them to Morales.

Nadeem Makada, an immigration attorney, testified as an expert on the effect a drug-related conviction would have on a noncitizen's immigration status and what "reasonably competent specific affirmative advice would have been at the time of [the] plea." Makada said a drug trafficking offense was an aggravated felony known in the legal community as a "kiss of death." It permanently barred a noncitizen from reentering the United States and from obtaining any form of legal residency here.

Next, Morales testified. He said he was a Mexican native who entered the United States when he was 17 years old, three years before he committed the 2002 offense. In 2002, he knew there was a likelihood he would be subject to deportation. His counsel, Loikedis, informed him of this likelihood, but did not advise him his no contest plea would certainly result in immediate deportation and permanently bar him from legal residency. Subsequently, he consulted with an attorney who advised him that his prior conviction would likely prevent him from obtaining a U visa and recommended he make an effort to "do something" about that conviction.

In closing argument, Morales's counsel argued the motion was meritorious and properly filed under section 1473.7. Counsel argued subdivision (b)'s requirement that a party file a motion with "reasonable diligence" when faced with either a notice of removal proceedings or the filing of a final removal order, whichever came later, simply indicated that these two events "triggered" a reasonable diligence requirement. However, the subdivision did not bar the filing of a motion under section 1473.7 in the face of actual or potential adverse immigration consequences other than removal proceedings.

The district attorney asserted that "by its plain language, [ section 1473.7 ] contemplates one of these two things happening: a notice to appear in immigration court or a deportation—or removal order becoming final." She argued these were "preconditions," the purpose of which was to "really nail down the prejudice requirement, because if we have an individual who is...