Trial court erred when it denied defendant’s motion to vacate his plea pursuant to Penal Code section 1473.7 based on untimeliness. In 2005 defendant pleaded guilty to unlawful sexual intercourse with a minor and was placed on probation. That same year he was taken into custody by immigration authorities and was ordered removed. In December 2016, he filed a petition for dismissal of his conviction under Penal Code section 1203.4 and for reduction of his offense to a misdemeanor, which was denied. The appellate court denied his appeal without prejudice to his filing a motion under then newly enacted Penal Code section 1473.7. Defendant filed a section 1473.7 motion, which was denied as untimely. He appealed. Held: Reversed. Section 1473.7 authorizes a person who is no longer in criminal custody to move to vacate a conviction where it is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea. The motion must be filed with reasonable diligence after either (1) the date the defendant receives notice to appear in immigration court because of the conviction; or (2) the date on which the removal order that is based on the conviction becomes final, whichever is later. The trial court found defendant should have filed his motion in 2005, 2006, or 2007. However, section 1473.7 was not effective until January 1, 2017. Defendant filed his motion within weeks of the Court of Appeal opinion advising him to do so. Thus, he acted with reasonable diligence in filing his motion. [Editor’s Note: The Court of Appeal acknowledged that there is a division among the appellate courts whether the denial of a section 1473.7 motion is reviewed under the “abuse of discretion” standard or the less deferential standard applicable to “a mixed question of fact and law” when the motion asserts a deprivation of the constitutional right to effective assistance of counsel. The court did not decide this issue.]

The trial court violated defendant’s right to have an attorney present at the section 1473.7 hearing. Defendant was not present when the trial court ruled on his section 1473.7 motion, and he was not represented by counsel at the hearing. Under the version of section 1437.7, subdivision (d) in effect at the time of defendant’s hearing, a trial court was allowed to “hold the hearing without the personal presence of the moving party if counsel for the moving party [was] present and the court [found] good cause as to why the moving party [could not] be present.” The trial court failed to comply with the statute when it ruled on defendant’s motion without his waiver of his right to be present and without counsel present. However, section 1437.7, subdivision (d) was amended effective January 1, 2019, deleting “if counsel for the moving party is present,” from subdivision (d). The People argued that, with this amendment, the Legislature intended to clarify the statute and eliminate any implication it provides a right to appointed counsel. The Court of Appeal disagreed and adopted the reasoning of People v. Fryhaat (2019) 35 Cal.App.5th 969, which addressed and rejected the People’s argument. 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. Section 1437.7 was intended to fill a gap left by these other procedural avenues for relief and should be interpreted to also provide for court-appointed counsel where an indigent moving party has adequately set forth factual allegations stating a prima facie case for entitlement to relief. The case was remanded for the trial court to consider whether defendant has set forth adequate factual allegations stating a prima facie case for entitlement to relief under section 1473.7, to appoint counsel if appropriate, and to address the section 1473.7 motion on its merits.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E069339.PDF