Wednesday, October 9, 2019
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Court of Appeal:
Judge Erred in Hearing a Motion Without Presence of Party, Though at His Request
Statute Still Required Finding of Good Cause for Detained Defendant’s Absence, Opinion Says; Counsel Should Have Been Appointed If Man Is Indigent
By a MetNews Staff Writer
A man in federal custody, facing deportation, was entitled to be present at a hearing on his motion in Los Angeles Superior Court to be relieved of his no-contest plea on the ground that he did not understand the immigration consequences of his plea, the Court of Appeal for this district held yesterday, even though the defendant had asked that the matter be decided in his absence.
The appellant, Egyptian citizen Mohammed Abdelsalam, in pleading no contest to a charge of making criminal threats, signed a statement which said:
“I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.”
When the deputy district attorney orally advised him in court of the consequences of his plea, Abdelsalam responded:
“Yes, I understand. But I’m just going to wait for immigration.”
Motion to Vacate
He did not need to wait long; the following month—on Oct. 20, 2017—Immigration and Customs Enforcement officials detained him. While still in detention, Abdelsalam, on Sept. 6, 2018, moved to vacate his conviction based on Penal Code §1473.7(d) which 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.”
He also asked that a lawyer be appointed for him.
Wiley’s Decision
The motion was denied by Los Angeles Superior Court Judge Rogelio G. Delgado. Reversal came in an unpublished opinion by Justice John Shepard Wiley Jr. of this district’s Div. Eight, who said:
“There is no record showing the trial court found good cause for Abdelsalam’s absence, as required by section 1473.7, subdivision (d).”
He continued:
“Nor is there any record showing the trial court found Abdelsalam was not entitled to appointed counsel. The trial court thus did not comply with section 1473.7, subdivision (d)….If Abdelsalam were indigent and good cause excused his presence at the hearing, then the trial court was required to appoint counsel for him….Not doing so deprived Abdelsalam of a proper hearing under section 1473.7, subdivision (d) because he did not have an opportunity to present his case and respond to any arguments against his motion.”
Abdelsalam came to the United States on a 90-day fiancé visa. His fianceé broke the engagement when she realized he was planning to marry her, become a citizen, then divorce her.
The case is People v. Abdelsalam, B293116.
Copyright 2019, Metropolitan News Company