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Name: People v. Perez
Case #: F080837
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/17/2021

Under Penal Code section 1473.7, a trial court is not required to deny a motion to vacate a conviction (based on inadequate understanding of immigration consequences) where the motion is untimely. In 2019, defendant filed a motion under section 1473.7 to vacate his felony theft conviction from 2000 on the ground that he was not adequately informed of the immigration ramifications when he entered his guilty plea. At the hearing, the trial court indicated that there were many humanitarian reasons why the motion should be granted, but concluded that the motion was untimely, stating, “I have to say the motion is denied.” Defendant appealed. Held: Reversed. 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 party’s ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of a guilty or no contest plea. As amended effective January 1, 2019, subdivision (b) provides that a motion shall be deemed timely filed at any time the person is no longer in custody, except that the motion may be deemed untimely if it was not filed with reasonable diligence after the later of: (A) receiving notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for specified immigration consequences, or (B) notice that a final removal order has been issued based on the existence of the conviction or sentence. The section grants superior courts the discretionary authority to deem a motion timely where the moving party did not act with reasonable diligence after the later of the triggering events. The plain wording of the statute requires a court to deem a motion timely any time after release from custody, except that the court is allowed—but is not required—to treat a motion as untimely if the defendant did not act diligently following the triggering event. Here, the superior court did not analyze timeliness correctly, so the order denying defendant’s motion was reversed. [Editor’s Note: (1) In the unpublished portion of the opinion, the Court of Appeal concluded that the motion in this case was, as a matter of law, timely, and that defendant had demonstrated prejudice, so it directed the superior court to grant the motion and vacate the conviction; (2) After the opinion issued, the Court of Appeal sent a letter asking counsel to consider stipulating to the early issuance of the remittitur, should the Attorney General decide not to file a petition for review.]