Filed 7/14/21 P. v. Torres-Vasquez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306428
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA426925)
v.
JUAN DAVID TORRES-VASQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Mildred Escobedo, Judge. Reversed and
remanded with directions.
Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Roberta L. Davis and
William H. Shin, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________
MEMORANDUM OPINION
In 2015, Juan David Torres-Vasquez pled no contest to one
count of taking a vehicle without consent and was sentenced to
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16 months in prison. (Pen. Code, § 10851, subd. (a).) Facing
removal proceedings and deportation, Torres-Vasquez filed a
motion to vacate his conviction pursuant to section 1473.7. He
attached a declaration that he had informed his attorney several
times he would rather go to trial to ensure he could stay in the
United States, and his counsel assured him deportation was
avoidable. Had he understood his plea would result in
deportation, he would have sought an alternative plea or gone to
trial.
The court summarily denied the motion without a hearing
due to state-wide emergency orders regarding the COVID-19
pandemic and without appointing Torres-Vasquez counsel.
The court cited portions of the plea hearing in which Torres-
Vasquez affirmed he understood he would be deported and asked
his counsel questions off the record about the immigration
consequences of his plea.
Torres-Vasquez filed a second motion to vacate his
conviction pursuant to sections 1016.5 and 1473.7, submitting a
second declaration that he was not advised of the immigration
consequences of his plea and would not have pled no contest had
he known he would be deported. The court again summarily
denied this motion without a hearing and without appointing
defense counsel, this time with prejudice. It cited its previous
denial and the same passages from the plea transcript.
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Undesignated statutory citations refer to the Penal Code.
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On appeal, Torres-Vasquez argues he demonstrated
entitlement to relief pursuant to section 1473.7, so we should
reverse the order and direct the trial court to grant his motion.
Alternatively, he requests we remand the matter because the
trial court erred in summarily denying the motion without
appointing him counsel or holding a hearing. Respondent
partially concedes the procedural error on the second point, and
does not address the merits. Consistent with People v. Fryhaat
(2019) 35 Cal.App.5th 969 (Fryhaat), respondent urges us to
remand the case with directions that the trial court evaluate
whether Torres-Vasquez presented a prima facie case for relief
pursuant to section 1473.7, and if so, appoint him counsel and
address the motion on the merits.
We agree the order must be reversed and remanded
consistent with Fryhaat, so we do not address the merits.
Section 1473.7 allows a defendant no longer in custody to
move to vacate a plea on the ground it was 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
plea of guilty or nolo contendere.” (§ 1473.7, subd. (a)(1).) As of
January 1, 2019, “[a] finding of legal invalidity may, but need
not, include a finding of ineffective assistance of counsel.” (Ibid.;
People v. Camacho (2019) 32 Cal.App.5th 998, 1006.) Thus, to
show entitlement to relief, Torres-Vasquez is required to show
(1) an error damaged his ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences of the plea; and (2) he would
not have entered the plea had he known it would have rendered
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him deportable. (People v. DeJesus (2019) 37 Cal.App.5th 1124,
1133.)
Subdivision (d) of section 1473.7 expressly grants Torres-
Vazquez the right to a hearing and his personal presence unless
his presence is waived: “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.”
Fryhaat held this subdivision also requires a court “to
provide 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, supra, 35
Cal.App.5th at p. 981.) In Fryhaat, the trial court denied the
defendant’s section 1473.7 motion effectively without a hearing or
the presence of counsel to advocate for him. (Fryhaat, at p. 977.)
The trial court denied the motion because the defendant was not
present, he did not attach a declaration to his motion, and the
plea agreement indicated he was “given the advisal.” (Ibid.)
The Court of Appeal reversed and remanded because this
record did not demonstrate the trial court evaluated whether the
defendant had presented a prima facie case. The Court of Appeal
could not “assume defendant was in fact advised of the
immigration consequences by his appointed counsel without an
adequate record.” (Fryhaat, supra, 35 Cal.App.5th at p. 982.)
Thus, the defendant was entitled to “remand for the superior
court to consider whether defendant has set forth adequate
factual allegations stating a prima facie case for entitlement to
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relief under section 1473.7, to appoint counsel if appropriate, and
to address the section 1473.7 motion on its merits.” (Id. at
p. 984.)
We will follow Fryhaat. While the trial court here cited
portions of the plea transcript to deny the motion, there is no
indication the court assessed whether Torres-Vasquez presented
a prima facie case for relief. The court did not hear from him or
any counsel advocating on his behalf, and the court had no
testimony or declaration from Torres-Vasquez’s plea counsel.
The plea hearing was inconclusive as to what Torres-Vasquez
understood or what his counsel told him. The plea court
informed him he would be deported, and Torres-Vasquez affirmed
he had spoken to his plea counsel about the immigration
consequences. When the plea court asked if he had questions
about the immigration consequences, he said “yes.” He conferred
with his counsel off the record, and his counsel then stated they
were ready to proceed. This transcript does not preclude the
possibility he misunderstood or was misadvised about the
immigration consequences of his plea.
As in Fryhaat, “we cannot assume defendant was in fact
advised of the immigration consequences by his appointed
counsel without an adequate record.” (Fryhaat, supra, 35
Cal.App.5th at p. 982.) Remand is appropriate for the trial court
to evaluate whether Torres-Vasquez has set forth factual
allegations stating a prima facie case for entitlement to relief
under section 1473.7. If so, the trial court must appoint Torres-
Vasquez counsel and address the merits of his motion.
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DISPOSITION
The order is reversed. The matter is remanded with
directions for the trial court to evaluate whether Torres-Vasquez
has alleged facts demonstrating a prima facie case to vacate his
conviction pursuant to section 1473.7. If so, the court is directed
to appoint counsel for Torres-Vasquez and address the merits of
his motion.
OHTA, J. *
We Concur:
STRATTON, Acting P. J.
WILEY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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