Page 3
Appeals Court Won’t Accord Anonymity to Criminal Defendant
By a MetNews Staff Writer
The Third District Court of Appeal on Friday spurned a request that a criminal defendant who wants to withdraw his guilty plea to a sex crime be identified by his initials only.
There’s no authority for doing so, Acting Presiding Justice Elana Duarte declared in an opinion that affirms an order denying the bid of Andrew Lawrence Gregor, a naturalized citizen from Australia, pursuant to Penal Code §1473.7(a)(1). That provision authorizes such relief for a person no longer in custody based on “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.”
Gregor was told of the prospect of deportation when he pled guilty to a violation of Penal Code §288.4(b), a felony, which entails going to “a meeting with a minor or a person he or she believes to be a minor for the purpose of” committing lewd acts.
The felony was reduced to a misdemeanor after he completed probation and was then dismissed.
What he was not told when he pled, Gregor protested in seeking an order vacating his lewd plea, was that he would be subject to lifetime registration as a sex offender, that he could not obtain a family-based visa to sponsor his wife or his father, and could not sponsor his father’s citizenship.
|
|
|
GREGOR |
Anonymity Denied
In seeking anonymity, his appointed counsel, Meredith Lee Fahn of San Jose, invoked the two “catchall” provisions of California Rules of Court, rule 890, which provides guidelines on the use of pseudonyms in appellate opinions. Appellate courts are advised to consider use of initials, only, for sake of “personal privacy interests” (Rule (b)(10)) or “in other circumstances in which use of that person’s full name would defeat the objective of anonymity for a person identified in (1)-(10)” (Rule (b)(11).
Duarte wrote:
“We are aware of no authority applying rule 8.90(b)(10) and (11) to criminal defendants except in the narrow circumstance—not applicable here—in which the sole purpose of the appeal is to attempt to vindicate a statutory privacy right….Additionally, while defendant argues that he may eventually be able to request that the trial court seal his criminal records in the event that he is successfully able to vacate his plea and his case is referred to and resolved in veteran’s court…, that argument is entirely speculative.
“Although we appreciate defendant’s situation and corresponding request, his position in this appeal is that of a criminal defendant seeking relief from the denial of his motion to withdraw a guilty plea. We therefore deny his request for redaction.”
Gregor, who is now 45, was identified at the time of his 2010 arrest in a press release issued by the Shasta County Sheriff’s Office and in news reports. It was set forth that he had arranged, over the Internet, to meet a minor and have sex with her—but the supposed minor was actually a sheriff’s detective conducting a sting operation.
Motion Properly Denied
Explaining the affirmance of Shasta Superior Court Judge Daniel E. Flynn’s order denying the motion to vacate the plea, Duarte said:
“[T]he language of the statute, the existing statutory scheme, and the purpose of the statute demonstrate the Legislature’s intent for ‘adverse immigration consequences’ to refer to removal or deportation, exclusion, or the denial of naturalization or lawful status of persons who plead guilty to charges without being advised of these immigration consequences. Each of these immigration consequences concern the defendant’s personal immigration status.”
She continued:
“Conversely, the denial of the ability to sponsor a relative affects the defendant only indirectly because it concerns the immigration status of another person. Thus, we conclude the (presumed) immigration benefit defendant raises here is not an adverse immigration consequence contemplated by section 1473.7. Here, there is no dispute but that the trial court properly advised defendant of the possible direct immigration consequences of his plea, that it may result in his being deported, or excluded from admission to the United States, or denied citizenship. We conclude there was no legal requirement that the court also advise defendant that his future potential ability to sponsor persons for citizenship or a visa may also be affected by his plea.”
Sex-Offender Registration
Duarte did not address Gregor’s contention that a motion lies under Penal Code §1473.7(a)(1) based on a failure to apprise him of the consequence of lifetime registration as a sex offender, but she did comment in a footnote:
“We recognize that defendant’s appeal is part of a broader effort to have his plea vacated, his criminal charges reinstated, and his case referred to and resolved in veteran’s court…, based in large part on his quest to be released from the requirement that he submit to lifetime sex offender registration….We observe that our opinion resolves only a narrow issue of statutory interpretation related to immigration and is not intended to opine on any other issue related to defendant’s plea or his status as a registered sex offender, including the questionable wisdom of imposing a lifetime registration requirement on an offender whose adjudication was resolved by his successful completion of probation….”
The case is People v. Gregor, 2022 S.O.S. 3541.
Copyright 2022, Metropolitan News Company