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Criminal Defense Attorneys

Does a Judge Have Discretion to Find 1473.7 Motion Timely?

If one has prepared, filed and argued a Penal Code § 1473.7 motion more than a few times, he or she will understand that a prosecutor will often argue that the motion was not filed in a timely manner.  Put another way, the prosecution will argue that the judge should deny the motion because defendant did not bring the request to the judge fast enough and did not show reasonable diligence in asserting such rights, he or she now asks the judge to enforce.  This is a laches-type, or even waiver, argument of “he who sleeps on his rights loses such rights.”

Judges, up until the following case summarized below, were generally sympathetic to this prosecution argument because the prosecution is otherwise almost powerless to oppose a motion that has no objective standard for evaluation.  Indeed, “[t]he key to the statute [Penal Code § 1473.7] is the mindset of the defendant . . . at the time the plea was taken.” People v. Mejia, (2019) 36 Cal. App. 5th 859, at 866.

Therefore, the timeliness of the motion has been a possible Achilles heal for defendants.  People v. Jose Adrian Perez, a Fifth Appellate District court case arising out of Tulare County and published on August 19, 2021 (2021 DJDAR 8545), should make defendants a bit less nervous about the timeliness issue.

Perez was born in Mexico in January 1981.  In 1984, when he was three years old, his parents brought him to the United States.  His declaration, submitted in support of his motion to vacate his conviction under Penal Code § 1473.7, states that he has “remained continuously in the United States since then.”  He became a legal permanent resident of the United States when he was about 14 years old.  He attended high school in the United States and has three children, all of whom are United States citizens.  His parents are legal permanent residents of the United States.

In October 1999, Perez was charged with robbery, Penal Code § 211, but pursuant to a negotiated plea bargain, he resolved the case as felony grand theft, Penal Code § 487(c) in exchange for a prison sentence of two years. 

The minute order from sentencing and plea hearing states, “Defendant advised and understands the maximum penalties of his plea, the possible defenses, consequences of a violation of probation . . .” and fails to state that defendant was warned of the immigration consequences of his plea or that an interpreter was used. 

Perez was then remanded on the two-year prison term.  When he was released, he was taken into custody by Immigration and Customs Enforcement (ICE) and put into removal proceedings.  He was then deported to Mexico, where he was separated from his family for over three years.

Perez then snuck back into the United States, but was ordered deported again in 2019.  Before being deported, he filed a motion to vacate his conviction pursuant to section 1473.7. 

The motion explained the 211 conviction and that his attorney at the 1999 hearing had since passed away.  Perez’s declaration stated that his attorney did not mention anything about immigration and did not tell him that his plea would cause him to be deported and lose his status as a legal permanent resident.  He also stated that he would not have entered his plea had he known of the horrible immigration consequences that would result.

The district attorney filed an opposition to Perez’s motion with just one ground in opposition: that the motion was untimely because the motion was brought 19 years after Perez entered his plea.  People v. Perez (2018) 19 Cal. App. 5th 818, 826 (a 1473.7 motion must be timely).  The delay caused prejudice to the People. 

The trial court judge denied the motion and Perez appealed to the Fifth Circuit Court of Appeals in Fresno. 

The Fifth Circuit began its analysis by noting that Penal Code § 1473.7(b) states, “[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.”

The Fifth Circuit then explained that 1473.7 was amended, stating that such a motion “may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following: “(A) 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 or the denial of an application for an immigration benefit, lawful status, or naturalization.  (B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.”

The Fifth Circuit commented that this “gives the trial court has broad discretion.” People v. Moine (2021) 62 Cal.App.5th 440, 448.
Moreover, the court pointed out that “the lack of reasonable diligence does not automatically require the superior court to deem the motion untimely.” 

In this case, it appeared that Mr. Perez waited over two, but less than three months, to file his motion after the order to deport him in 2019 was issued.  The court also pointed out, somewhat sarcastically, that Perez could not be required to have filed his 1473.7 motion in 2011 because 1473.7 was not even codified until January 1, 2017.

The Fifth Circuit then addressed the merits of the motion and found the motion to vacate should be granted, so it remanded the case to the trial court with orders that it grant the motion.

We naturally like this ruling, but caution that one should expect prosecutors to point out that three months may be the upper limit to a delay in filing a 1473.7 motion.  Defense counsel, in response, must remind the court of its “broad discretion” and that “lack of reasonable diligence” does not require an automatic finding that the motion is untimely.

For more information about 1473.7 motion issues, please click on the following articles:
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