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’ 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 relied under the statute.

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


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[1] Penal Code section 1473.7 became effective on January 1, 2017 and states, in pertinent part, as follows:

(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:

(1) The conviction or sentence 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.

(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.

(b) 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.

(c) A motion pursuant to paragraph (2) of subdivision (a) shall be filed without undue delay from the date the moving party discovered or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section.