Trial court erred in summarily denying motion to vacate conviction under Penal Code section 1473.7 without appointing counsel to represent defendant. Defendant is a citizen of Jordan who had been living in the U.S. for 30 years. In 2001, he pleaded guilty to drug offenses and was released on his own recognizance on various conditions. He subsequently violated his release terms and was sentenced to prison. In 2018, as he was facing deportation, defendant filed a motion to vacate his plea arguing that both his attorney and the trial court failed to advise him of the immigration consequences of his plea. The trial court summarily denied the motion because defendant was not present, did not attach a declaration to his motion, and the change of plea form reflected he was given an immigration advisal. Defendant appealed. Held: Reversed. Penal Code section 1473.7 provides a means for noncitizens who were previously convicted of crimes to which they pleaded guilty, and who are no longer in criminal custody, to move to vacate a conviction where it is legally invalid due to a prejudicial error damaging the defendant’s ability to meaningfully understand and accept the potential adverse immigration consequences of the plea. Under section 1437.7, subdivision (d), the moving party is entitled to a hearing. Here, the trial court appointed the public defender, but the public defender declared a conflict and no one else was appointed to represent defendant at the hearing. Defendant was in immigration custody and so did not appear. Because neither defendant nor an attorney on his behalf was present, the trial court did not satisfy the requirements of section 1473.7 by holding a hearing at which the moving party was present or his presence was waived for good cause.

Where the indigent moving party who is in immigration custody makes out a prima facie case for relief, he is entitled to appointment of counsel. Effective January 1, 2019, subdivision (d) of section 1437.7 was amended to provide that the moving party is entitled to a hearing and upon his request, the court may hold a hearing without the defendant’s presence if it finds good cause as to why the defendant cannot be present. The portion of former subdivision (d) which provided the hearing could proceed in defendant’s absence “if counsel for the moving party is present,” was deleted. But this does not mean that an indigent defendant is not entitled to appointed counsel. In light of the fact writs of habeas corpus, writs of corum nobis, and likely section 1016.5 motions to vacate, require court-appointed counsel for an indigent defendant who has established a prima facie case for entitlement to relief, and given the fact that section 1437.7 was intended to fill a gap left by these other procedural avenues for relief, section 1437.7 should also be interpreted to provide for appointment of counsel in similar circumstances.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E070847.PDF