Page 3
Court of Appeal:
Confusion Led to Denial of §1473.7 Motion
By a MetNews Staff Writer
A motion to vacate a 2005 cocaine-possession conviction, pursuant to a guilty plea, on the ground that the defendant was not informed of the potential immigration consequences of his plea, was erroneously denied, the Court of Appeal has held, saying that the judge was confused in thinking that the defendant would have grabbed an irresistible plea bargain, even with a proper advisement, because a prior would otherwise have been alleged.
Riverside Superior Court Judge John D. Molloy fumbled, Div. Two of the Fourth District found in an unpublished opinion filed Wednesday, because the supposed “prior” conviction of Dharmendra Prasad for making criminal threats—which Molloy thought would have statutorily foreclosed the prospect of probation and added a year to his sentence, if it had been pled and proven—was not incurred until 2007.
Molloy declared that what occurred in 2005—Prasad was placed on probation in exchange for his plea—“looks like a very rational disposition,” commenting:
“I do not find the defendant’s averments that he would not have entered into this disposition to be remotely credible.”
Justice Marcia G. Slough authored the opinion reversing Molloy’s determination in denying a motion under §1473.7. She wrote:
“…Prasad is right that the judge’s decision below was premised on a faulty understanding of the facts. The judge found Prasad’s claim he would not have accepted the plea in his 2005 case not credible in part because the existence of his 2007 case meant he would have been ineligible for probation and faced stiff penalties had he gone to trial. This is obviously impossible. When Prasad pled in 2005, he had not yet been convicted of his 2007 crime. Indeed, that conviction wasn’t even pending. Contrary to the judge’s assertions, the 2007 charge would not have increased the potential penalties Prasad faced had he gone to trial. Accordingly, the judge’s assessment of Prasad’s credibility—and therefore of the entire prejudice question—is in error.” This was the second time Slough wrote an opinion in the case reversing an order by Molloy denying Prasad’s motion to vacate his conviction based on not having been told of the possibility of deportation as a result of his plea. In an Oct, 9, 2020 opinion, she said:
“Prasad argues the court abused its discretion by holding the hearing and denying his motion in his absence and without first appointing him counsel. The People concede the error and agree we should remand for a new hearing. We agree, reverse the order, and remand to allow the trial court to appoint counsel and hold an evidentiary hearing on Prasad’s claims.”
Such a hearing was held and Molloy denied the motion in March 2021, again with Prasad not present.
This time, the appeals court, in reversing, did not order a remand. Rather, it directed the Riverside Superior Court to vacate its order and permit Prasad to withdraw his guilty plea, thus blocking pending deportation efforts.
Slough said the fact that Prasad had signed a form in 2005 acknowledging awareness of the immigration consequences—found meaningful by Molloy—was not. She declared that “even if Prasad’s counsel did go through the plea form with him, the form’s boilerplate advisement that ‘this conviction may have the consequences of deportation’ was not sufficient advice from a constitutional perspective, let alone under section 1473.7.”
Penal Code §1473.7 provides, in part, that “[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence” on the ground that “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” was impaired.
“[W]e consider it reasonably probable,” Slough wrote, that if Prasad had been caused to appreciate the potential consequences of his plea, “he would have tried anything he could—up to and including a ‘Hail Mary’ trial—to avoid immigration consequences.”
The case is People v. Prasad, E076914.
Copyright 2022, Metropolitan News Company