People v. Perez
| Citation | 67 Cal.App.5th 1008,282 Cal.Rptr.3d 796 |
| Decision Date | 17 August 2021 |
| Docket Number | F080837 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jose Adrian PEREZ, Defendant and Appellant. |
67 Cal.App.5th 1008
282 Cal.Rptr.3d 796
The PEOPLE, Plaintiff and Respondent,
v.
Jose Adrian PEREZ, Defendant and Appellant.
F080837
Court of Appeal, Fifth District, California.
Filed August 17, 2021
As Modified September 7, 2021
Certified for Partial Publication.*
Law Office of Allen Broslovsky and Allen Broslovsky for Defendant and Appellant.
Xavier Becerra, Attorney General, Sacramento, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Columbus, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Defendant and Respondent.
FRANSON, Acting P.J.
In December 2019, defendant Jose Adrian Perez filed a motion pursuant to Penal Code section 1473.71 to vacate a 2000 conviction entered after he pled guilty to felony theft. The sole ground raised in the opposition to Perez's motion was its untimeliness. At the hearing on the motion, the superior court stated: "While I think there are a bunch of humanitarian reasons why it should be granted, I have to say the motion is denied." On appeal, the Attorney General contends the court properly denied the motion because (1) it was untimely and (2) Perez did not establish he suffered the "prejudicial error" required by section 1473.7, subdivision (a)(1).
The published part of this opinion addresses the meaning of the timeliness provisions set forth in subdivision (b) of section 1473.7, which is a pure question of law and not dependent upon the facts of this case. That subdivision contains a general rule requiring the court to deem the motion timely in certain circumstances. ( § 1473.7, subd. (b)(1).) It also contains a discretionary exception that permits the court to deem the motion untimely if the moving party did not act with reasonable diligence in bringing the motion after specific triggering events. ( § 1473.7, subd. (b)(2).) Thus, the absence of reasonable diligence does not automatically result in the motion being deemed untimely. A superior court has the discretionary authority, after considering the totality of the circumstances, to deem a motion timely even if the moving party did not act with reasonable diligence.
The unpublished portion of this opinion includes our analysis of whether Perez acted with reasonable diligence in filing his motion and our determination that the motion was timely filed. It also includes our analysis of whether Perez demonstrated the existence of an error that was both prejudicial and damaging to his ability to meaningfully understand and accept the immigration consequences of his no contest plea. ( § 1473.7, subd. (a)(1).) Based on our independent review of the cold record in accordance with the principles set forth in People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425 ( Vivar ), we conclude Perez satisfied the requirements of section 1473.7, subdivision (a)(1) and is entitled to relief.
We therefore reverse the order denying the section 1473.7 motion.
BACKGROUND**
DISCUSSION
I. INTERPRETATION OF TIMELINESS PROVISIONS
Section 1473.7 permits a person to file a motion to vacate a conviction that 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).) In adopting and amending section 1473.7, the Legislature considered the problems faced by defendants "who were unaware of the immigration consequences posed by a plea entered many years earlier." ( Vivar, supra , 11 Cal.5th at p. 523, 278 Cal.Rptr.3d 2, 485 P.3d 425.) Although such motions "must be timely" ( People v. Perez (2018) 19 Cal.App.5th 818, 826, 228 Cal.Rptr.3d 95 ), they
"ordinarily are brought many years after the plea." ( Vivar, supra , 11 Cal.5th at p. 526, 278 Cal.Rptr.3d 2, 485 P.3d 425 [motion brought nearly 16 years after plea was entered].) Whether a particular motion is timely is governed by subdivision (b) of section 1473.7.
A. Initial Timeliness Requirement
The first version of subdivision (b) of section 1473.7 was enacted in 2016, was effective from January 1, 2017, through December 31, 2018, and stated:
"A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following: [¶] (1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal. [¶] (2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final." (Stats. 2016, ch. 739, § 1, italics added.)
The use of the word "shall" in the phrase "shall be filed with reasonable diligence" plainly indicated a moving party was required to act with reasonable diligence after the later of the two events described in paragraphs (1) and (2) of subdivision (b) of former section 1473.7. Thus, under the first version of section 1473.7, courts were required to deny a motion when the moving party had not acted with reasonable diligence in filing the motion.
B. Current Timeliness Provisions
The current version of subdivision (b) of section 1473.7 was enacted in 2018 and became effective on January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment made substantial changes to the timeliness provisions, which now provide:
"(1) Except as provided in paragraph (2), a motion pursuant to paragraph...
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