People v. Diosdado CA4/2

Filed 2/4/21 P. v. Diosdado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073901

v. (Super.Ct.No. BAF1600033)

MARTIN MUNOZ DIOSDADO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Kelly L. Hansen and

John M. Monterosso, Judges. Affirmed.

Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Mary

Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

1
 I. INTRODUCTION

In 2016, defendant and appellant Martin Munoz Diosdado, a citizen of Mexico,

pleaded guilty to several felony offenses he committed while driving drunk. In return, he

was sentenced to a total term of three years in state prison with 517 days’ credit for time

served. Sometime after his release from prison, defendant was placed into removal

proceedings by the federal government and detained in an immigration facility. In 2019,

defendant filed a motion to vacate his conviction pursuant to Penal Code1 section 1473.7,

arguing he was not advised of, and did not understand, the immigration consequences of

his plea. In an ex parte proceeding, the trial court denied defendant’s motion, finding

“[d]efendant was advised by both defense counsel and the court that his plea would result

in his deportation.”

On appeal, defendant argues the trial court erred in denying his motion to vacate

his guilty plea without a hearing and without appointing counsel in violation of

section 1473.7. Although the trial court erred in denying the section 1473.7 motion

without a hearing, we find the error to be harmless and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant drove his vehicle while drunk with a blood alcohol content of

0.15 percent or more. While inebriated, defendant hit a person with his vehicle, causing

the person to suffer injury, and then fled the scene. Defendant had previously been

convicted of driving while under the influence of alcohol on three separate occasions.

1 All future statutory references are to the Penal Code unless otherwise stated.

2
 On September 27, 2016, defendant pleaded guilty to assault with a deadly weapon,

to wit, a motor vehicle (Pen. Code, § 245, subd. (a)(1)); failure to give assistance and

identifying information in an accident involving personal injury (Veh. Code, § 20001,

subd. (a)); and driving while under the influence of alcohol with a blood alcohol level of

0.15 percent or more, causing injury (Veh. Code, §§ 23153, subd. (a) & 23578).

Defendant also admitted that he had suffered three prior convictions for driving while

under the influence.

Prior to pleading guilty, defendant signed and initialed a plea form. In relevant

part, defendant initialed and signed the paragraph stating, “If I am not a citizen of the

United States, I understand that this conviction WILL have the consequences of

deportation, exclusion from admission to the United States, or denial of naturalization

pursuant to the laws of the United States.” The word “may” was crossed out from the

above paragraph in the plea form and the word “WILL” was placed above the stricken

word “may.” Defendant also initialed the statements that no one had made any threats to

him or pressured him to plead guilty and that he had adequate time to discuss with his

attorney his constitutional rights, the consequences of pleading guilty, and any defenses

he may have to the charges against him.

In addition, defendant signed the plea form, noting he had read and understood the

entire plea form, that he waived and gave up all of the rights he had initialed, and that he

accepted the plea agreement. The plea form was signed by defense counsel, indicating

counsel was satisfied that defendant understood his constitutional rights, his guilty plea,

3
the consequences of his guilty plea, and that defendant had adequate time to discuss his

case with him. The plea form was also signed by defendant’s Spanish interpreter, noting

the interpreter had translated the contents of the entire plea form in Spanish and that

defendant had stated he “fully understood the contents of the form prior to signing.”

During the taking of the plea hearing, with the assistance of defendant’s Spanish

interpreter, defendant indicated to the trial court that he went over the plea form with his

attorney, that he had placed his initials and signature on the plea form, and that he

understood and agreed with the plea form. Defendant also acknowledged that he went

over the plea form with his interpreter and had his interpreter translate the plea form for

him. When the trial court asked defendant whether he had any questions, defendant

questioned why he was “getting a strike.” The trial court thereafter allowed defense

counsel more time with defendant. After a pause in the proceedings, defendant indicated

that his question had been answered, and when the trial court inquired whether defendant

had any other questions, defendant responded, “No.”

The trial court then informed defendant of his constitutional rights and the

consequences of pleading guilty. In relevant part, the trial court specifically informed

defendant that “[i]f you are not a citizen, you will be deported, denied reentry, and denied

naturalization as a U.S. citizen.” When the trial court asked defendant whether he

understood all of the consequences of pleading guilty, defendant stated, “Yes.” Prior to

pleading guilty, defense counsel interrupted the trial court and asked the court to “advise

[defendant] of his immigration consequences, please.” The trial court replied, “I told him

4
that he will be deported and denied reentry and denied naturalization by pleading guilty.”

After indicating he understood his plea agreement, defendant pleaded guilty as agreed to

in his plea form and was immediately sentenced in accordance with his plea agreement.

On August 12, 2019, defendant filed a motion to vacate his conviction pursuant to

section 1473.7. Defendant argued that his trial counsel had failed to advise him of the

immigration consequences of his plea, he did not meaningfully understand the

immigration consequences of his plea due to a language barrier, and that had he known

the consequences of deportation, he would not have pleaded guilty.

On August 21, 2019, the trial court summarily denied defendant’s motion, finding

defendant had been advised by his counsel and the trial court that his plea would result in

deportation. The court also found that defendant “signed the change of plea form,

specifically acknowledging that his plea would cause his deportation.” The trial court

cited to defendant’s change of plea form, which it attached to the court’s minutes.

Defendant timely appealed.

III. DISCUSSION

Defendant argues the trial court erred in denying his section 1473.7 motion to

vacate his guilty plea without a hearing and without appointing counsel to represent him

in his absence. He therefore believes the denial of his motion should be reversed and the

matter remanded with instructions to appoint counsel and hold a hearing.

5
 A. Standard of Review

Appellate courts apply a de novo standard of review to rulings on section 1473.7

motions. (People v. Fryhaat (2019) 35 Cal.App.5th 969, 975 (Fryhaat); People v.

Ogunmowo (2018) 23 Cal.App.5th 67, 76; People v. Olvera (2018) 24 Cal.App.5th 1112,

1116.) As this court explained in Fryhaat, “We apply de novo review ‘for a mixed

question of fact and law that implicates a defendant’s constitutional right. [Citation.] A

defendant’s claim that he or she was deprived of the constitutional right to effective

assistance of counsel “presents a mixed question of fact and law,” and we accordingly

review such question independently. [Citations.] We accord deference to the trial court’s

factual determinations if supported by substantial evidence in the record, but exercise our

independent judgment in deciding whether the facts demonstrate trial counsel’s deficient

performance and resulting prejudice to the defendant. [Citations.]’” (Fryhaat, at p. 975,

citing People v. Ogunmowo, at p. 76; People v. Tapia (2018) 26 Cal.App.5th 942, 950;

People v. Olvera, at pp. 1116-1117.) Substantial evidence is evidence that is reasonable,

credible, and of solid value. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not

reweigh the evidence or reevaluate witness credibility. (People v. D’Arcy (2010) 48

Cal.4th 257, 293.)

B. Section 1473.7 Generally

Section 1473.7, subdivision (a), provides, “A person who is no longer in criminal

custody may file a motion to vacate a conviction or sentence for either of the following

reasons: [¶] (1) The conviction or sentence is legally invalid due to prejudicial error

6
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.” Subdivision (c) requires a motion pursuant to subdivision (a)(2) to

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 section 1473.7.

The statute thus allows a defendant, who is no longer in custody, “to challenge his

or her conviction based on a mistake of law regarding the immigration consequences of a

guilty plea or ineffective assistance of counsel in properly advising the defendant of the

consequences when the defendant learns of the error postcustody.” (People v. Perez

(2018) 19 Cal.App.5th 818, 828.) The burden is on the defendant to show, by a

preponderance of the evidence, that he or she is entitled to relief. (Id. at p. 829.)

Section 1473.7, subdivision (d), provides, “All motions shall be entitled to a

hearing. Upon the request of the moving party, the court may hold the hearing without

the personal presence of the moving party provided that it finds good cause as to why the

moving party cannot be present. If the prosecution has no objection to the motion, the

court may grant the motion to vacate the conviction or sentence without a hearing.”

The court must grant the motion to vacate the conviction or sentence “if the

moving party establishes, by a preponderance of the evidence, the existence of any of the

7
grounds for relief specified in subdivision (a).” (§ 1473.7, subd. (e)(1).) In ruling on a

section 1473.7 motion, the trial court must also specify the basis for its decision.

(§ 1473.7, subd. (e)(4).) An order granting or denying the motion is appealable.

(§ 1473.7, subd. (f).)

C. Analysis

Relying on subdivision (d) of section 1473.7 and this court’s opinions in Fryhaat,

supra, 35 Cal.App.5th at pp. 983-984, and People v. Rodriguez (2019) 38 Cal.App.5th

971 (Rodriguez), defendant argues he was entitled to a hearing and appointment of

counsel. Based on Fryhaat, he also asserts we should reverse the order denying his

motion and remand the case with instructions to the trial court “to evaluate defendant’s

request for appointment of counsel in a manner consistent with the opinion, to appoint

counsel, if appropriate, and to consider the motion on its merits.”

1. Right to a Hearing Under Section 1473.7

The issue before us is not whether section 1473.7 mandates a hearing. It clearly

does. Subdivision (d) of section 1473.7 states “[a]ll motions shall be entitled to a

hearing.” Instead, we must determine whether a remand for a hearing is necessary in this

case where defendant was clearly informed that he “will” be deported if he pleaded guilty

and there is no evidence to suggest he did not understand the repeated admonitions that

he “will” be deported.

“[R]emand is not appropriate when it would be an idle act.” (People v. Jefferson

(2019) 38 Cal.App.5th 399, 409 (Jefferson).) A trial court’s error in failing to hold a

8
hearing under section 1473.7 is not prejudicial per se. (See Fryhaat, supra, 35

Cal.App.5th at p. 984, citing People v. Braxton (2004) 34 Cal.4th 798, 818-820 [although

trial court’s error in refusing to hear new trial motion is not prejudicial per se, matter

must be remanded for hearing on the motion if the appellate record does not allow the

reviewing court to determine as a matter of law that the motion lacked merit or to decide

the trial court would have properly exercised its discretion to deny the motion].)

Here, although the trial court erred in failing to hold a hearing, the error was

harmless under any standard. (See People v. Watson (1956) 46 Cal.2d 818, 836 [an error

is deemed harmless if it is not reasonably probable the defendant would have obtained a

more favorable result in the absence of the error]; Chapman v. California (1967) 386

U.S. 18, 24 [an error is prejudicial and requires reversal of the conviction unless it

appears “beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained”].) In an attached declaration to his section 1473.7 motion, defendant

stated that at the time of his plea, he “had no knoweledgeor [sic] understanding that [the]

conviction would impact [his] immigration status so sever[e]ly.” He also asserted that he

“never had an attorney” and was “never advised” that his plea “would have

conse[quences] of . . . being deported.” He further averred that had he known his

conviction would have “guaranteed” that he would be deported, he “would have

definitely sought an alternative plea or trial.”

The record does not support defendant’s motion and declaration. Defendant was

advised on the record by the trial court twice, once at his counsel’s request, that he “will

9
be deported and denied reentry and denied naturalization by pleading guilty.” Moreover,

defendant specifically initialed and signed his full name next to the section on his plea

form that read: “If I am not a citizen of the United States, I understand that this

conviction will have the consequences of deportation, exclusion from admission to the

United States, or denial of naturalization pursuant to the laws of the United States.”

Indeed, the word “may” was stricken from the immigration consequences paragraph in

the plea form and replaced with “will.”

Furthermore, defendant received the assistance of a Spanish interpreter during the

taking of the plea hearing, as well as at the time he signed and initialed his plea form.

Defendant’s Spanish interpreter noted on the plea form that defendant had no questions

regarding the interpretation. In addition, although defendant questioned whether his

conviction was a strike and had other questions during the plea hearing, he did not

question the unequivocal statement that he would be deported as a result of his plea. The

record demonstrates that defendant was not afraid to stop the proceedings if he did not

understand something. Thus, the trial court’s failure to hold a hearing was not

prejudicial. (See Fryhaat, supra, 35 Cal.App.5th at p. 984.)

As we explained in Fryhaat, remand was necessary because there was only a

“meager record” in the case, which involved a section 1473.7 motion for inadequate

immigration advisements. Rejecting the People’s argument the defendant had failed to

state a prima facie case by omitting a supporting declaration and alleging facts that were

contrary to the record, this court stated, “we cannot assume defendant was in fact advised

10
of the immigration consequences by his appointed counsel without an adequate record.”

(Fryhaat, supra, 35 Cal.App.5th at pp. 982-983.) Here, in contrast, no remand is

necessary because the record demonstrates defendant is not entitled to relief under

section 1473.7 as there was no error in advising him of his immigration consequences.

(See Jefferson, supra, 38 Cal.App.5th at p. 409.)

2. Right to Counsel Under Section 1473.7

In Rodriguez, supra, 38 Cal.App.5th 971, we reversed the trial court’s order

denying a section 1473.7 motion, which the court had considered without the presence of

the moving party or his counsel, and remanded the case “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.” (Rodriguez, at p. 984.) In so holding,

we construed section 1473.7 “‘to require appointment of counsel for an indigent moving

party who has established a prima facie case for relief and who is in federal immigration

custody.’” (Ibid.; accord, Fryhaat, supra, 35 Cal.App.5th at pp. 983-984.)

In Fryhaat, supra, 35 Cal.App.5th 969, we concluded that section 1473.7

“provide[s] the right to appointed counsel where an indigent moving party has set forth

factual allegations stating a prima facie case for entitlement to relief under the statute.”

(Fryhaat, at p. 981.) We based our conclusion on a comparison to petitioners for a writ

of habeas corpus or coram nobis, who are entitled to counsel upon a prima facie showing

of entitlement to relief. (Id. at pp. 981-982.) A prima facie showing of entitlement to

11
relief in those contexts requires the court to assess whether the petitioner has alleged

sufficient facts that, if true, would entitle them to the relief they seek. (In re Lawler

(1979) 23 Cal.3d 190, 194.) We held that this reasoning applies with equal force in the

context of a section 1473.7 motion. (Fryhaat, at pp. 983-984.)

Because we have held that the right to counsel attaches upon the showing of a

prima facie case for relief, we now turn to the issue of whether defendant made such a

showing. If he did, he is entitled to counsel. Where a party moves to vacate their

conviction under section 1473.7, the moving party is “required only to show that one or

more of the established errors were prejudicial and damaged his ‘ability to meaningfully

understand, defend against, or knowingly accept the actual or potential adverse

immigration consequences of [his] plea . . . .’” (People v. Camacho (2019) 32

Cal.App.5th 998, 1008-1009.) Thus, in order to make a prima facie showing of

entitlement to relief, a party must allege (1) some error, and (2) that the alleged error

prejudiced their ability to meaningfully understand, defend against, or knowingly accept

the plea. An error may prejudice a moving party “when there is a reasonable probability

that the person would not have pleaded guilty—and would have risked going to trial

(even if only to figuratively throw a ‘Hail Mary’)—had the person known that the guilty

plea would result in mandatory and dire immigration consequences.” (People v. Mejia

(2019) 36 Cal.App.5th 859, 871, italics omitted.) Whether a petitioner or moving party

has made a prima facie showing of entitlement to relief is a question of law, which we

12
may resolve independently. (Maas v. Superior Court (2016) 1 Cal.5th 962, 977-978;

People v. Bonilla (2007) 41 Cal.4th 313, 341-342.)

Here, for the reasons already explained above, we conclude defendant did not

make a prima facie showing of entitlement to relief. During the plea hearing, at counsel’s

request and with the assistance of a Spanish interpreter, the trial court specifically advised

defendant that he would be deported as a result of his guilty plea. Defendant also signed

a statement in the plea form that he will be deported as a consequence of his plea.

Defendant was not advised that he “may” be deported, but that he “will” be deported.

Thus, defendant did not properly allege some error—namely, his attorney did not advise

him of the immigration consequences of his plea or that the advisement of the

immigration consequences was equivocal.

Defendant initialed the statements in his plea form that no one had made any

threats to him or pressured him to plead guilty and that he had adequate time to discuss

with his attorney his constitutional rights, the consequences of pleading guilty, and any

defenses he may have to the charges against him. He signed the plea form, noting he had

read and understood the entire plea form. In addition, the plea form was signed by his

counsel, indicating counsel was satisfied that defendant understood his constitutional

rights, his guilty plea, and the consequences of his guilty plea. The plea form was also

signed by defendant’s Spanish interpreter, noting the interpreter had translated the

contents of the entire plea form in Spanish and that defendant had stated he “fully

understood the contents of the form prior to signing.” Because there was no error in

13
advising defendant of the immigration consequences of his plea and he was at all times

assisted by a Spanish interpreter, defendant cannot show prejudice.

In both Rodriguez and Fryhaat, we remanded for the superior court to make a

determination whether the defendant in those cases had set forth adequate factual

allegations stating a prima facie case for entitlement to relief. (Rodriguez, supra, 38

Cal.App.5th at pp. 984-985; Fryhaat, supra, 35 Cal.App.5th at p. 984.) However, unlike

in those cases, there is no need to remand in this case because defendant cannot show

entitlement to relief.

IV. DISPOSITION

The order denying defendant’s motion to vacate his conviction pursuant to

section 1473.7 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:

RAMIREZ
P. J.

SLOUGH
J.

14