NEW Appellate Opinion Analyzing Penal Code section 1473.7

On August 16, 2019, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.[1]

In March of 2005, the defendant in People v. Jorge A. Millan Rodriguez, out of the Superior Court of Riverside County, pled guilty to Penal Code section 261.5, “Unlawful Intercourse by a Person Over 21” and was placed on formal probation for 36 months. On June 7, 2005, the defendant was placed in Immigration and Naturalization Service custody pending a determination of whether he would be ordered removed from the United States based on the offense. In 2005, Mr. Rodriguez was ordered removed. Subsequently, Mr. Rodriguez admitted to violations of probation and was further sentenced.

In 2016, Mr. Rodriguez filed a petition seeking relief pursuant to Penal Code section 1203.4 and Section 17(b). The trial court denied both motions and the defendant appealed. On June 14, 2017, these denials were affirmed on appeal; however, the appellate court suggested that Mr. Rodriguez seek relief under newly enacted Penal Code section 1473.7. On July 10, 2017, Mr. Rodriguez filed his motion for relief pursuant to Penal Code section 1473.7. On August 10, 2017, Mr. Rodriguez’s motion was denied without defendant or defense counsel present on the grounds that the defendant failed to allege a prima facie case of timeliness in seeking relief. According to the trial court, Mr. Rodriguez should have filed his motion in “2005, 2006, 2007.” Mr. Rodriguez appealed.

According to the appellate court, the reasoning by the trial court is erroneous because the defendant could not have filed his motion in 2005, 2006, or 2007 because “section 1473.7 did not become effective until January 1, 2017.” Further, the defendant filed for relief pursuant to Section 1473.7 only one month after being advised by the appellate court to seek such relief. Thus, the appellate court found that he acted with “reasonable diligence” under the statute with seeking relief.

Further, the appellate court addressed the topic of a right to counsel at the hearing. According to the court of appeal, if a defendant’s presence is waived or good cause exists to excuse a defendant’s presence, like when he is detained in federal immigration custody, then counsel must be appointed. Thus, a defendant has a right to appointed counsel where an indigent moving party has set forth a prima facie case for entitlement to relief under the statute.

This case was remanded to the trial court for a determination of whether relief should be granted under the factual merits of the motion.

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