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Court of Appeal:
Man Who Alleged Citizenship at Sentencing May Pursue Motion Under P.C. §1473.7
Opinion Says Hearing Must Be Afforded to Determine if Defendant May Withdraw
No-Contest Plea Based on Inadequate Warning of Immigration Consequences
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed the denial of a defendant’s motion to vacate a no-contest plea based on the court’s failure to adequately advise him of the immigration consequences of such a plea—even though the man represented to the court at the time of sentencing that he is a citizen.
Justice Carl H. Moor of Div. Five authored the opinion, which was not certified for publication.
The Los Angeles Superior Court judge who on April 23, 2021, denied the motion to vacate the plea, pursuant to Penal Code §1473.7(a)(1), was James D. Otto. The denial was based on defendant Johnny Mejia Morales’s response to a question posed at his July 14, 2014 sentencing for possession for sale of a controlled substance.
The judge stated at that time, “If you are not a citizen, this conviction will result in deportation, denial of naturalization, denial of the right to come back into the county,” then asked:
“Are you, in fact a U.S. citizen?”
Morales said:
“Yes, your honor.”
Under Detention
Morales was represented at both the sentencing hearing and the hearing on his pro per motion under §1473.7 by Cerritos attorney Joseph T. Gibbons. He was not personally present at the hearing on the motion; he was under detention in Adelanto by federal immigration authorities, and is facing deportation.
Contrary to his representation in court, he is not a citizen. In seeking, unsuccessfully, a reconsideration of the denial of his motion. Morales explained that he had believed his status as a permanent resident justified his claim of citizenship.
Sec. 1473.7(a) provides:
“A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any of the following reasons:
“(1) The conviction or sentence is legally 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 conviction or sentence.”
Moor’s Opinion
Moor wrote:
“At the section 1473.7 hearing, there was good cause for Morales’s absence. Mr. Gibbons purported to appear on Morales’s behalf, but there is no indication that Morales retained him, or had any opportunity to consult with him in connection with the hearing. Moreover, given the allegations in Morales’s petition, contending that Mr. Gibbons had provided ineffective assistance when advising about immigration consequences at the time of the plea, Mr. Gibbons could not adequately represent Morales due to his adverse interests.”
He went on to say:
“Here, the record contains neither a plea agreement signed by Morales nor a declaration from Gibbons indicating he advised Morales of the plea’s immigration consequences….Therefore, we remand the matter to the trial court for a hearing on the merits consistent with the provisions of section 1473.7.”
The case is People v. Morales, B313206.
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