NEW Appellate Opinion Analyzing Penal Code section 1473.7

On May 31, 2019, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.

In 2001 the defendant in People v. Kamal Abdul Fryhaat, 2019 S.O.S. 2569, out of the Superior Court of San Bernardino, pled guilty to violations of Health and Safety Code section 11379.6(a)(1), Section 11378, and Section 11366. Mr. Fryhaat was then released on his own recognizance on various terms and conditions. Mr. Fryhaat subsequently violated the terms of his release and was sent to state prison. After his release from state prison, he was arrested by the federal government and placed in removal proceedings in federal immigration court and is currently in federal immigration custody awaiting removal proceedings.

In 2018, Mr. Fryhaat filed a motion to vacate his conviction pursuant to Penal Code section 1473.7 in propria persona arguing that both his attorney and the trial court failed to properly advise him of the immigration consequences of his plea and that his attorney provided ineffective assistance for failing to attempt to mitigate the immigration prejudice.

The trial court appointed the public defender on his motion and continued the matter to allow the People to respond and to allow the public defender to attempt to contact the defendant. On the next hearing on the motion, the public defender’s office declared a conflict and informed the court that they did not have any communications with the defendant. The court proceeded to deny the motion to vacate finding that the plea agreement said the defendant was given the advisal and stating that nothing was submitted to the contrary.

After the motion was denied the defendant wrote a letter to the court claiming that he has not been notified of the hearing on the motion and thereafter filed a timely notice of appeal. Mr. Fryhaat also submitted a motion for reconsideration with supporting exhibits, a declaration, and statements that he was held in custody at the Adelanto Detention Facility and never contacted to participate in the hearing. The court summarily denied this motion for reconsideration.

Mr. Fryhaat argued in his appeal that the trial court erred by summarily denying his motion to vacate without a hearing, without his presence, and without court appointed counsel. The People agreed that the matter should be remanded because the defendant was entitled to a hearing. The People disagree regarding the right to appointed counsel and believe that his presence by way of telephone or videoconference would be sufficient.

The appellate court determined that the plain language of the statute entitles the defendant to a hearing. Further, the appellate court stated that the plain language of the statute also entitles the defendant to be personally present at the hearing, unless defense counsel is present and the court finds good cause as to why the defendant cannot be present.

The appellate court further determined that although the express provisions of the Statute do not provide a right to counsel, if the defendant is indigent and cannot attend the hearing because he or she is in federal immigration custody, the trial court should appoint counsel. In this case, the appellate court states that the trial court should have appointed a conflict panel attorney to represent the defendant when the public defender’s office conflicted.

Further, the appellate court stated that although the “plea agreement attached to defendant’s motion indicates defendant initialed the box next to the statement “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which is plead guilty/nolo contendere,” we cannot assume without an adequate record that the defendant was in fact advised of the immigration consequences by his appointed counsel.

The appellate court then reversed the denial and the matter was then remanded to the trial court.


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