People v. Perez

• Decision Date: 23 January 2018
• Docket Number: D072121
• Citation: 19 Cal.App.5th 818,228 Cal.Rptr.3d 95
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Modesto PEREZ, Defendant and Appellant.

19 Cal.App.5th 818

228 Cal.Rptr.3d 95

The PEOPLE, Plaintiff and Respondent,

v.Modesto PEREZ, Defendant and Appellant.

D072121

Court of Appeal, Fourth District, Division 1, California.

Filed January 23, 2018

Nina Bonyak, Los Angeles, 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, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

In August 2005, Modesto Perez pled guilty to possession of methamphetamine for sale ( Health & Saf. Code, § 11378 ). Over six months later, Perez was deported to Mexico based on his conviction.

On January 1, 2017, Penal Code ¹ section 1473.7 became effective. That statute allows a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that "[t]he 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." ( § 1473.7, subd. (a)(1).) Perez subsequently filed a motion to vacate his conviction under section 1473.7. The superior court denied Perez's motion.

Perez appeals, contending the court erred in denying his motion. The People counter, arguing the statute does not apply retroactively and, even if it did, Perez's motion was untimely and the record shows that he had sufficient knowledge of the immigration consequences of his plea.

We determine that section 1473.7 does apply to Perez. However, we conclude Perez has not shown he is entitled to relief under that statute. As such, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Guilty Plea

The operative complaint charged Perez with possession of methamphetamine for sale ( Health & Saf. Code, § 11378 ), among other crimes. Perez ultimately pled guilty to that charge at a hearing on August 10, 2005. The superior court noted that Perez appeared to be very emotional and asked if the hearing should be postponed. As part of its inquiry, the court asked why Perez was upset: "Okay. Is this the case—since we're using the interpreter, is this a case where Mr. Perez is a citizen of another country and afraid this will result in his—"

Perez's counsel responded, "I am sure that's a concern, when speaking in terms of totality. Sure. That's one thing. I explained it to my client. That is an issue. That will follow through after his sentence is up."

The court then offered to postpone the hearing if Perez was "too emotional to go ahead with" it. Perez did not indicate that he wanted to continue the hearing to a later time. The court then asked what Perez wanted to do and explained the immigration consequences if Perez pled guilty:

"What would you like to do? Would you like to go ahead and plead guilty, knowing that you are going to serve 365 days in custody, and also knowing if you violated probation you could get up to three years in prison? [¶] Since I saw there was an immigration hold on your papers, you have to know that if you plead guilty, this will result in your deportation from this country. This country will refuse to let you back in, and this country will refuse to allow you to become a citizen. This is controlled by the federal government, not this court. Those are the things that will happen to you if you plead guilty. [¶] What would you like to do, go to trial or plead guilty?"

Before deciding to plead guilty, Perez asked the court about the consequences of going to trial and when trial would occur. After the court answered Perez's questions, Perez conferred with his attorney for a few minutes before he decided to plead guilty.

Upon Perez indicating that he wished to plead guilty, the court questioned Perez about the plea form Perez submitted. The court asked Perez whether he reviewed the form very carefully with his attorney and the court interpreter. Perez responded in the affirmative. The court specifically asked Perez if the interpreter explained "everything to [him] on these forms line by line?" The court then inquired whether Perez understood everything he was told about the form and if his answers on the form were correct. Again, Perez responded in the affirmative.

After the court explained to Perez that he would be waiving certain constitutional rights, Perez pled guilty to the offense of possession of methamphetamine for sale.

Perez's plea form appears in the record. As pertinent here, the form states, "I understand that if I am not a U.S. Citizen, this plea of Guilty/No Contest may result in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization. Additionally, if this plea is to an ‘Aggravated Felony’ listed on the back of this form, then I will be deported, excluded from admission to the U.S., and denied naturalization." Perez's initials appear in the box next to that statement.

On the back of the plea form, felony possession of any controlled substance is listed as an aggravated felony.

The form also contained the following statement, signed by Perez's attorney:

"I, the attorney for the defendant in the above-entitled case, personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea, including any immigration consequences. I personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this form and any addendum. I concur in the defendant's plea and waiver of constitutional rights."

Additionally, the form contained a statement signed by the interpreter:

"I, the sworn Spanish language interpreter in this proceeding, truly translated for the defendant the entire contents of this form and any attached addendum. The defendant indicated understanding of the contents of this form and any addendum and then initialed the form and any addendum."

The Motion to Vacate

On February 21, 2017, Perez filed a motion to vacate conviction based on section 1473.7. In his motion, Perez argued that (1) his counsel violated the duty to investigate and accurately advise him about the specific immigration consequences of a plea; (2) his counsel failed to defend against immigration consequences of a plea by attempting to plea bargain for an immigration safe alternative disposition; and (3) Perez failed to meaningfully understand the immigration consequences of the conviction.

Among other material offered in support of his motion, Perez submitted multiple self-declarations.² In one such declaration, Perez indicated that he did not understand what was happening at the hearing at which he pled guilty. He claimed that his attorney did not explain other options or the immigration consequences if he pled guilty. Perez further declared that he only pled guilty because he was not aware of and did not understand all the consequences of his guilty plea. Moreover, he asserted that, despite the presence of a Spanish interpreter, he still did not "completely comprehend what [he] was initialing because, [he] only ha[s] an elementary education and [was] not familiar with technical legal terms in Spanish and [he] did not have meaningful understanding of the documents." Finally, Perez insisted that he would not have signed the plea form had he known he would have been deported, but instead, he would have been willing to serve a longer prison sentence to avoid deportation.

The People opposed Perez's motion, contending the motion was untimely and Perez understood and was advised of the immigration consequences of his plea.

At the hearing on Perez's motion, his attorney declined the opportunity to argue and submitted on the tentative ruling. The court then adopted its tentative and denied the motion. In the law and motion minutes contained in the record, the court denied the motion with the following handwritten explanation:

"[Six months] after the [defendant's] sentencing[,] he was deported based on this conviction. At that point he was aware of consequences [and] had the option of bringing a writ of habeas corpus or motion to vacate purs[uant to] [section] 1016.5. This matter is untimely."

Perez timely appealed.

DISCUSSION

Section 1473.7 provides: "A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence" for one of two reasons, including that "[t]he 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." ( § 1473.7, subd. (a)(1).) The motion must be made with "reasonable diligence" after the party receives notice of pending immigration proceedings or a removal order. ( § 1473.7, subd. (b).) The court must hold a hearing on the motion, and if the moving party establishes by a preponderance of the evidence that he or she is entitled to relief, the court must allow the person to withdraw his or her plea. ( § 1473.7, subd. (e).)³

As a threshold matter, the People argue that section 1473.7 is not retroactive; thus, it cannot apply to Perez, who pled guilty and was deported before section 1473.7 became effective.⁴ To this end, the People compare section 1473.7 with sections 1016.5, 1203.4a, and 1473.6. They contend that those sections indicate that the Legislature understands how to explicitly state when a statute applies retroactively. Because section 1473.7 does not contain analogous language, the People maintain the Legislature did not intend it to apply retroactively. We find the specific language of sections 1016.5, 1203.4a, and 1473.6 not helpful to our...