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Court of Appeal:
Indigent Defendant Is Entitled to Lawyer at Vacatur Hearing
Opinion Says Trial Judge Erred in Finding That No Right to Counsel Applied Because Accused Appeared in Court for Proceedings, Read Case Involving Petition From Federal Detention Center ‘Too Narrowly’
By a MetNews Staff Writer
Div. Five of this district’s Court of Appeal has held that an indigent defendant seeking relief from criminal convictions, on the ground that he was not properly advised of the immigration consequences of being found guilty, is entitled to an appointed attorney to represent him at the evidentiary hearing regardless of whether he is present in court or unable to appear due to being detained pursuant to deportation proceedings.
The question arose after defendant Sergio Gutierrez requested the relief under Penal Code §1473.7, which was enacted in 2016 and provides that “[a] person who is no longer in criminal custody may file a motion to vacate” if “[t]he conviction or sentence is legally invalid due to prejudicial error damaging the…ability to meaningfully understand, defend against, or knowingly accept the…adverse immigration consequences of a conviction or sentence.”
Subdivision (d) specifies:
“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.”
In Monday’s opinion, authored by Justice Dorothy Kim and joined in by Acting Presiding Justice Lamar W. Baker and Justice Carl H. Moor, the court reversed an order by Los Angeles Superior Court Judge Hayden Zacky, denying Gutierrez’s motion to set aside his convictions for armed carjacking and resisting arrest, based on the court’s failure to appoint an attorney to represent him at the vacatur hearing.
Fryhaat Case
Zacky cited the 2019 decision by Div. Two of the Fourth District Court of Appeal in People v. Fryhaat as having established that the assignment of counsel is only required for a §1473.7 hearing if the moving party is in federal immigration custody and unable to appear. Gutierrez was present in court during the proceedings on his motion.
In the Fryhaat case, the defendant’s §1473.7 request was summarily denied while he was in federal custody. The moving party appealed the denial, arguing that the court erred by not holding a hearing and failing to appoint an attorney to represent his interests due to his inability to appear in court; Div. Two opined:
“Because neither defendant nor an attorney on his behalf was present, the trial court did not satisfy the requirements of section 1473.7, subdivision (d), by holding a hearing at which the moving party was present or his presence was waived for good cause. The matter must therefore be remanded to the trial court for a hearing consistent with the provisions of section 1473.7.”
Citing case law finding a right to counsel in the context of evidentiary hearings on resentencing, habeas petitions, and coram nobis proceedings, Kim said that Zacky’s reading of Fryhaat was too “narrow.”
Carjacking Conviction
Gutierrez was sentenced to 12 years in prison in 2006 after he admitted the resisting arrest charge and a jury found him guilty of carjacking. After serving his sentence, he was detained by federal immigration authorities in 2016 and eventually released pending appeal of an order directing his removal from the country.
On Jan. 3 of last year, Gutierrez filed the §1473.7 request, arguing that he was not adequately advised “about the potential immigration consequences of going to trial or taking a plea deal” and that “there may have been possible defenses or alternative pleas” that would have helped him avoid deportation proceedings.
Gutierrez requested appointment of counsel and submitted a financial statement under oath, claiming that he had no income or assets.
After denying Gutierrez’s request to have an attorney appointed, Zacky continued the matter for a month to allow time to retain private counsel. In March 2024, the defendant again appeared without representation, and the court conducted an evidentiary hearing during which the prosecutor who handled the carjacking trial testified that “at no time was [defendant] offered anything less than [five or six] years…for a carjacking.”
Based on this testimony, Zacky denied the motion to vacate the convictions, saying that “[t]here is no evidence that an immigration neutral offer was ever made” and that “[t]his was a jury trial case.”
Prima Facie Case
Noting that there was no dispute that the defendant made a prima facie showing of entitlement to relief and presented evidence of his indigency, Kim wrote:
“Section 1473.7 is silent concerning a statutory right to counsel during proceedings conducted pursuant to its provisions. But courts have recognized a constitutional right to counsel in analogous resentencing contexts.”
Citing Fryhaat, she said:
“[That] court interpreted the statute in light of constitutional principles and concluded that the movant had a right to appointed counsel.”
Kim opined:
“[T]he rationale for the holding in that case was not limited to situations in which the moving party was in federal immigration custody and unable to attend the hearing. Instead, the Fryhaat court articulated a broader view, with which we agree, that the right to appointed counsel attaches in section 1473.7 proceedings when an indigent defendant makes a prima facie showing he is entitled to relief and the trial court then proceeds to an evidentiary hearing.”
The jurist continued:
“We therefore conclude the trial court erred by denying his request for appointment of counsel on the grounds that his presence at the hearing made such appointment unnecessary.”
She pointed out that the Office of the Attorney General conceded the point and “does not argue that the failure to appoint counsel was harmless.” Saying the latter concession was made “with good reason,” she concluded that “[t]here is a reasonable probability of a more favorable result for defendant if he were represented by counsel who could have ensured that the trial court had the fullest picture of all relevant facts.”
Under those circumstances, she declared:
“The order denying the section 1473.7 motion to vacate is reversed and remanded with instructions to conduct further proceedings consistent with this opinion on defendant’s request for appointment of counsel and to hold a new hearing on the merits of his request for relief under section 1473.7.”
The case is People v. Gutierrez, 2025 S.O.S. 2486.
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