Metropolitan News-Enterprise


Monday, October 25, 2021


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Court of Appeal Paves Way for Deported Felon to Reenter U.S.

Opinion Says Presumption That Person Knows the Law Is Inapplicable Where Relief Is Sought From Guilty Plea; Alien Acted With ‘Reasonable Diligence’ in Making Motion Two Years After Passage of Authorizing Legislation


By a MetNews Staff Writer


A motion to withdraw a 2008 guilty plea to a felony on the ground that the defendant lacked an awareness that the conviction would cause his deportation was erroneously denied on the ground that there was not “reasonable diligence” in making the motion after 2017 legislation authorized it, the Court of Appeal held Friday, declaring that a presumption that the moving party had knowledge of the law should not be applied.

The opinion by Justice William Dato of the Fourth District’s Div. One orders that the Imperial Superior Court vacate the conviction of Carlos Argenis Figueroa Alatorre for conspiracy to possess cocaine for sale. It was that conviction that triggered his deportation in 2011.

 Alatorre obviously did not know of that consequence of his plea, Dato said, because it was he who brought the conviction to the attention of immigration authorities in seeking permanent residency status. In light of that, he reasoned, there is no reason to remand for the purpose of the trial court deciding whether to grant the motion.

It had been denied by Judge Monica Lepe-Negrete on the ground that Penal Code §1473.7, which went into effect on Altaire Jan. 1, 2017, authorizes relief from a guilty plea made in the absence of an awareness of immigration consequences only where the defendant acts “with reasonable diligence” in making a motion.

Alatorre, whose wife and children remained in the U.S., wanted to make a try at gaining lawful reentry, and retained services of Oakland immigration attorney Otis C. Landerholm in September 2019; Landerholm reviewed the matter and referred Alatorre to The Nieves Law Firm, APC, in Oakland; it filed a motion under §1473.7 in March 2020.

Legal Knowledge Presumed

Disagreeing with Lepe-Negrete’s view that the motion was untimely, Dato said:

“We begin by noting that the maxim ‘everyone is presumed to know the law’ is not a presumption of fact, but rather a rule of substantive law….It is another way of saying that ignorance of the law will not be recognized as a legal defense. The presumption cannot be rebutted even in the face of overwhelming evidence of actual ignorance.”

But, he declared, the presumption is a legal fiction that has no place in the present context, explaining:

“[A]s a general rule the presumption only prevents someone from claiming ignorance of the law in order to escape criminal or civil responsibility. It has no application in a case like this to deny a person statutory relief to which they would otherwise be entitled merely because they might have discovered their statutory remedy if they had reason to look.”

Second Reason

He added:

“A closer examination reveals yet another reason to refrain from applying the presumption in cases like this: it does not apply to foreign nationals. A person is not presumed to know the law of another state or country where they do not live or work.”

Dato elaborated:

“…Alatorre, a Mexican citizen living in Mexico, would have even less opportunity to learn about a newly enacted California law than the average Californian—though we doubt many residents of this state keep abreast of changes to the Penal Code. Even if they did, the scope of relief available under section 1473.7 would not have been clear to just anyone who happened to read about its enactment. It adds a layer of complexity to the already bewildering interplay between state criminal proceedings and federal immigration enforcement….”

Triggering Event

Dato set the point at which diligence on Alatorre’s part would be expected to commence was when Landerholm, in August 2019, referred him to the Nieves firm.

“A reasonably diligent person in Alatorre’s position would either follow up on the Nieves referral or, at a minimum, begin to investigate post-conviction relief,” the jurist wrote.

Alatorre did follow up, in September 2019.

“ A period of approximately one month between a petitioner’s triggering event and the hiring of legal counsel cannot be considered an unreasonable delay,” he remarked. “We thus conclude that Alatorre acted with reasonable diligence.”

The case is People v. Alatorre, D077894.


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