Filed 8/23/22 P. v. Domingo CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311599
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA105356)
v.
SULIETO GUITCHE
DOMINGO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Reversed and
remanded with instructions.
Jason Szydlik, 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.
I. INTRODUCTION
Defendant and appellant Sulieto Domingo appeals from the
trial court’s denial of his petition for a writ of habeas corpus
pursuant to Penal Code section 1473.71 that requested the court
vacate his prior conviction. He contends the court erred in failing
to hold a hearing on his request at which he was personally
present. We reverse.
II. PROCEDURAL BACKGROUND2
On August 13, 2018, defendant pleaded no contest to
assault with a semiautomatic firearm (§ 245, subd. (b)) and
admitted a gang allegation (§ 186.22, subd. (b)(1)(B)). The trial
court sentenced defendant to 11 years in state prison.
On February 25, 2021, defendant filed a petition for a writ
of habeas corpus pursuant to section 1473.7 asking the trial court
to vacate his conviction. On March 2, 2021, the court denied
defendant’s petition without a hearing, defendant’s presence, or
the appointment of counsel.
1 All further statutory references are to the Penal Code.
2 Because the only issue on appeal concerns the trial court’s
failure to hold a hearing on defendant’s request to vacate his
conviction pursuant to section 1473.7, we omit a recitation of the
facts underlying that conviction.
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III. DISCUSSION
Defendant contends the trial court erred in denying his
section 1473.7 petition for a writ of habeas corpus without
holding a hearing at which he was present.3 The Attorney
General agrees as do we. We note, however, that to obtain relief
under section 1473.7, a defendant must file a motion and not a
petition for a writ of habeas corpus. (See § 1473.7, subds. (a)–(g).)
We deem defendant’s petition for a writ of habeas corpus to be a
motion for relief under section 1473.7.
A. Standard of Review
We review de novo all claims of error made under section
1473.7, subdivision (a)(1). (Vivar, supra, 11 Cal.5th at p. 526,
fn. 4.)
3 Although defendant does not contend the court erred in
failing to appoint counsel to represent him, he asks that we
instruct the court to evaluate whether to appoint counsel to
represent him on remand. 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, disapproved on
other grounds by People v. Vivar (2021) 11 Cal.5th 510, 526, fn. 4
(Vivar); People v. Fryhaat (2019) 35 Cal.App.5th 969, 981
(Fryhaat).)
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B. Analysis
Pursuant to section 1473.7, subdivision (a)(1), “[a] person
who is no longer in criminal custody may file a motion to vacate a
conviction or sentence” if “[t]he 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 immigration consequences
of a conviction or sentence.” “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. . . .” (§ 1473.7, subd. (d); Fryhaat, supra,
35 Cal.App.5th at p. 977 [section 1473.7, subdivision (d) entitles a
moving party to a hearing and to be personally present at that
hearing].)
Defendant was not personally present at the hearing on his
section 1473.7 “motion” and did not request the trial court to hold
that hearing without his personal presence. Moreover, the court
did not find good cause that defendant could not be present at the
hearing. (§ 1473.7, subd. (d).) Accordingly, the court did not
satisfy section 1473.7, subdivision (d)’s requirements and we
reverse the court’s order denying defendant’s “motion” and
remand for the court to hold a hearing consistent with section
1473.7’s provisions. (Fryhaat, supra, 35 Cal.App.5th at p. 978.)
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IV. DISPOSITION
The order is reversed. The matter is remanded for a
hearing on defendant’s petition for a writ of habeas corpus (which
shall be deemed a motion under section 1473.7) that is consistent
with section 1473.7, subdivision (d)’s provisions. The trial court
is to evaluate whether to appoint counsel to represent defendant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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