Filed 6/27/22 P. v. Morales CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B313206
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA098884)
v.
JOHNNY MEJIA MORALES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James D. Otto, Judge. Reversed and remanded
with instructions.
Bess Stiffelman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Steven D.
Matthews, Supervising Deputy Attorneys General, for Plaintiff
and Respondent.
______________________________
Defendant and appellant Johnny Mejia Morales1 appeals
the trial court’s order denying his motion to vacate his no contest
plea pursuant to Penal Code section 1473.7, subdivision (a)(1).2
Morales argues the trial court erred in denying his motion
without conducting a proper hearing in which he was represented
by appointed counsel. We reverse and remand the matter for the
trial court to appoint counsel if an indigency showing is made and
conduct a hearing on the merits pursuant to section 1473.7.
FACTUAL AND PROCEDURAL HISTORY
On July 14, 2014, Morales, who was represented by counsel
Joseph T. Gibbons, pleaded no contest to possessing for sale a
controlled substance (Health & Saf. Code, § 11351) and
possessing for sale a designated controlled substance (Health &
Saf. Code, § 11375, subd. (b)(1)). The probation officer’s report
stated that Morales was a citizen. Before accepting the plea, the
trial court stated, “If you are not a citizen, this conviction will
result in deportation, denial of naturalization, denial of the right
1 We used appellant’s name as spelled in the information
and judgment, but the record reflects other possible spellings or
aliases. The trial court should ensure, on remand, that the file
correctly spells appellant’s name and lists any appropriate
aliases, if necessary.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
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to come back into the county. ¶ Are you, in fact a U.S. citizen?” 3
Morales responded, “Yes, your honor.” The trial court sentenced
him to seven years in prison.
On April 5, 2021, Morales in propria persona filed a motion
to vacate his conviction pursuant to section 1473.7, subdivision
(a)(1). He requested that the court hold a hearing in his absence
because he was in federal immigration detention in Adelanto,
California. Morales attached a statement alleging the court and
his counsel failed to advise him of the immigration consequences
of his plea, and that he would have pleaded differently had he
understood the possible adverse immigration consequences,
including deportation. Morales further alleged the court and his
counsel mislead him by stating his prior conviction for voluntary
manslaughter was a strike conviction, which caused him to
accept a legally invalid plea deal. Morales included a letter from
the Ventura County District Attorney that stated his prior
conviction does not constitute a strike. Morales is now facing
deportation and loss of his legal permanent resident status.
On April 23, 2021, the trial court held a hearing on
Morales’s section 1473.7 motion. Morales was not present, but
plea counsel purported to represent him.4 The trial court stated,
3 The trial court erred when it asked Morales in open court
about his immigration status. (§ 1016.5, subd. (d) [“It is . . . the
intent of the Legislature that at the time of the plea no defendant
shall be required to disclose his or her legal status to the court”];
see former Evid. Code, § 351.4 [“In a criminal action, evidence of
a person’s immigration status shall not be disclosed in open
court”].)
4 Under “appearances”, the transcript states Morales was
not present but was “with counsel, Marc Gibbons.” However,
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“I received his motion which he filed pro per and I’ve reviewed it
and he was specifically asked at the time of his sentencing after
being given the complete admonition . . . ‘Are you, in fact, a U.S.
citizen?’ ¶ And [Morales] answered ‘Yes.’ ¶ On that basis the
motion is denied.” Mr. Gibbons provided no argument on
Morales’s behalf.
On May 21, 2021, Morales filed a motion for
reconsideration. His declaration claimed he did not meaningfully
understand the immigration consequences when he entered his
plea. After receiving his legal permanent resident status, he
“always thought [he] had to do no more” because he believed
“PERMANENT” meant his status was indefinite. His counsel,
Mr. Gibbons, never recommended he speak to an immigration
attorney, mentioned the words “aggravated felony”, or informed
him the plea would result in deportation with a bar to reentry.
Had he known the immigration consequences, he would have
asked Mr. Gibbons to negotiate a different deal or insisted on
going to trial. The trial court denied the motion for
reconsideration.
Morales timely appealed.
DISCUSSION
Standard of Review
On appeal, an independent standard of review applies for
all claims made under section 1473.7, subdivision (a)(1). (People
v. Vivar (2021) 11 Cal.5th 510, 526, fn. 4 (Vivar).) “In section
counsel identified himself as “Joseph Gibbons for Mr. Morales”.
The name “Marc” appears to be an error.
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1473.7 proceedings, appellate courts should [] give particular
deference to factual findings based on a trial court’s personal
observations of witnesses.” (Id. at pp. 527–528.) However, where
the facts derive entirely from written declarations and other
documents, “it is for the appellate court to decide, based on its
independent judgment, whether the facts establish prejudice
under section 1473.7.” (Id. at p. 528.)
Right to Hearing
On appeal, Morales argues the trial court erred in denying
his motion without conducting a hearing where he was
represented by appointed counsel.5 He asks that we reverse and
remand with instructions that the trial court conduct a full
evidentiary hearing. The Attorney General agrees that a remand
for a hearing on the merits is required. We agree with the
parties.
Section 1473.7, subdivision (a), provides in relevant part:
“A person who is no longer in criminal custody may file a motion
to vacate a conviction or sentence . . . [¶] [if] the conviction or
sentence is legally invalid due to prejudicial error damaging the
moving party’s ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
5 Morales also contends he has established by a
preponderance of the evidence that he did not meaningfully
understand the immigration consequences of his plea because his
counsel failed to advise him of such consequences and rendered
ineffective assistance of counsel. In light of our disposition, we do
not reach this contention.
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immigration consequences of a conviction or sentence. . . .”6
Section 1473.7, subdivision (d), states: “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. . . .” When a court finds good
cause for the movant’s absence, the court may hold the hearing if
the movant’s counsel is present. (People v. Fryhaat (2019) 35
Cal.App.5th 969, 977, 979 (Fryhaat).) Thus, a hearing pursuant
to section 1473.7 requires (1) the movant’s presence, or (2) good
cause for the movant’s absence and the presence of movant’s
counsel. (Id. at p. 977.)
Failure to hold a section 1473.7 hearing is not prejudicial
per se (Fryhaat, supra, 35 Cal.App.5th at p. 984) and “remand is
not appropriate when it would be an idle act” (People v.
Jefferson (2019) 38 Cal.App.5th 399, 409). However, the “matter
must be remanded for [a] 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.” (Fryhaat, at p. 984, citing to People v. Braxton (2004) 34
Cal.4th 798, 818–820.)
At the section 1473.7 hearing, there was good cause for
Morales’s absence. Mr. Gibbons purported to appear on Morales’s
6 When Morales moved to vacate his plea, section 1473.7,
subdivision (a), provided that a motion could be filed if a
prejudicial error damaged the person’s “ability to meaningfully
understand . . . the . . . adverse immigration consequences of a
plea of guilty or nolo contendere.” (Italics added.) The statute’s
amendment has no impact on Morales’s case.
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behalf, but there is no indication that Morales retained him, or
had any opportunity to consult with him in connection with the
hearing. Moreover, given the allegations in Morales’s petition,
contending that Mr. Gibbons had provided ineffective assistance
when advising about immigration consequences at the time of the
plea, Mr. Gibbons could not adequately represent Morales due to
his adverse interests. (See Fryhaat, supra, 35 Cal.App.5th at p.
977 [counsel with a conflict of interest did not adequately
represent defendant in a section 1473.7 hearing].) “Because
neither [Morales] nor an attorney on his behalf was present, the
trial court did not satisfy the requirements of section 1473.7,
subdivision (d)” and thus Morales did not receive the hearing he
was entitled to. (Id. at p. 978.) In Fryhaat, although the record
contained a plea agreement that indicated the defendant was
advised of the immigration consequences of his plea, the court
remanded the matter because the “meager record” did not contain
a declaration from plea counsel indicating he had advised the
defendant of the immigration consequences. (Id. at p. 983.)
Here, the record contains neither a plea agreement signed by
Morales nor a declaration from Gibbons indicating he advised
Morales of the plea’s immigration consequences. “[W]e cannot
assume [Morales] was in fact advised of the immigration
consequences by his [plea] counsel without an adequate record.”
(Id. at p. 982.) Therefore, we remand the matter to the trial court
for a hearing on the merits consistent with the provisions of
section 1473.7.
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Right to Appointed Counsel
Morales argues we should instruct the trial court to appoint
counsel on remand. The Attorney General acknowledges Morales
“appears to have made a prima facie case for entitlement for
relief under [] section 1473.7” and contends the matter should be
remanded with instructions that the trial court consider whether
appointing counsel is appropriate.
Although not explicitly stated in section 1473.7, subdivision
(d), due process requires the appointment of counsel for a moving
party who (1) is indigent, (2) in federal immigration custody, and
(3) has established a prima facie case of entitlement to relief
under the statute. (People v. Rodriguez (2019) 38 Cal.App.5th
971, 981–984, abrogated on other grounds by Vivar, supra, 11
Cal.5th 510; Fryhaat, supra, 35 Cal.App.5th at p. 981.) A prima
facie case is established if a court finds the factual allegations,
taken as true, entitle the moving party to relief. (See People v.
Duvall (1995) 9 Cal.4th 464, 475.) A person moving under section
1473.7, subdivision (a), is required to show that “one or more of
the established errors were prejudicial” and damaged the
person’s “‘ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences of [the conviction].’” (People v. Camacho (2019) 32
Cal.App.5th 998, 1009.) Prejudicial error exists when there is a
reasonable probability the person would not have pleaded guilty
and instead risked going to trial if the person had known of the
guilty plea’s mandatory and dire immigration consequences.
(People v. Mejia (2019) 36 Cal.App.5th 859, 871.) Thus, to
establish a prima facie case under section 1473.7, a moving party
must allege (1) an error damaged his ability to meaningfully
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understand, defend against, or knowingly accept the actual or
potential adverse immigration consequence of the conviction; and
(2) he would not have entered the plea had he known it would
have rendered him deportable. (People v. DeJesus (2019) 37
Cal.App.5th 1124, 1133.)
Morales made a prima facie case of entitlement to relief.
Morales alleged his conviction is legally invalid due to prejudicial
error—his counsel’s failure to advise him of the plea’s
immigration consequences. He also claimed that the error
damaged his ability to meaningfully understand the
consequences of his plea, and that he would not have agreed to
the plea agreement had he known of the immigration
consequences. Because Morales is in federal immigration
custody, the second prong for appointment of counsel is also
established. If Morales, on remand, establishes he is indigent,
due process requires that he be appointed counsel.
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DISPOSITION
The order denying Morales’s section 1473.7 motion to
vacate his no contest plea is reversed. The matter is remanded
for the trial court to appoint counsel if Morales makes the
required indigency showing and to conduct a hearing on the
merits pursuant to section 1473.7.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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