Filed 5/20/22 P. v. Chiriac CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078082
v. (Super.Ct.No. RIF138126)
EMANUEL CHIRIAC, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Emanuel Chiriac appeals from the trial court’s denial of
his motion to vacate the judgment and set aside his plea. For the reasons forth post, we
affirm the trial court’s order denying defendant’s motion.
1 STATEMENT OF THE CASE
On July 27, 2009, an amended information charged defendant with three counts of
lewd and lascivious acts upon a child under 14 (Jane Doe) by use of force, violence,
duress, menace and fear under Penal Code1 section 288, subdivision (b)(1) (counts 1-3).
The information also alleged that counts 1 and 2 occurred on or about May 2006, and
count 3 occurred “on or about the year of 2006.”
On November 5, 2009, as to count 1, a jury found defendant guilty of violating
section 288, subdivision (a), a lesser included offense of section 288, subdivision (b)(1).
The court declared a mistrial on its own motion as to counts 2 and 3. After the court and
counsel conferred regarding a section 288.1 referral, the court appointed Dr. Robert
Suiter to examine defendant and to provide a report. The court also ordered both defense
counsel and the prosecutor to submit simultaneous sentencing memorandums. The court
then ordered a Romanian interpreter for defendant’s next appearance, exonerated the
current bail bond, and remanded defendant to custody.
On May 5, 2010, reports by the probation department and Dr. Suiter were filed.
Moreover, a section 1203.03 diagnostic study/recommendation was also filed. At the
hearing on May 5, 2010, the court stated that it had read and considered the probation
report, the court-ordered evaluations, and the sentencing briefs. After Doe and others
addressed the court, the court granted defendant formal probation for 60 months under
various terms and conditions.
1 All further statutory references are to the Penal Code unless otherwise specified
2 On the day of retrial on March 16, 2011, as to counts 2 and 3, the trial court
granted the prosecutor’s oral motion to add counts 4 and 5—violations of section 288,
subdivision (a). Defendant then entered a guilty plea as to those counts. The court
granted formal probation for a period of 60 months under various terms and conditions,
including that defendant not leave California without first obtaining written permission
from his probation officer. Defendant accepted the terms and conditions of his probation.
The court then dismissed counts 2 and 3 in the interest of justice under section 1385, and
exonerated the current bail bond.
On November 7, 2013, the probation department filed a violation of probation
against defendant. The department alleged the following violations to the terms of
probation: (1) on October 9, 2013, defendant was discharged from his sex offender
treatment program for excessive absences, a violation of term 7; (2) defendant failed to
report to the kiosk reporting system for the month of September, a violation of term 10;
and (3) defendant failed to contact his probation officer, even after the probation officer
sent defendant a letter and left a note at defendant’s front door, a violation of term 10.
The probation officer stated that these violations were defendant’s first violations of
probation. If the court sustained the probation violations, the officer recommended that
defendant be sentenced to state prison.
At the probation violation hearing on November 18, 2013, defendant failed to
appear. The court stated, “Not here? Bond forfeited. Bench warrant at [$]50,000.” The
court never mentioned revoking defendant’s probation.
3 On April 16, 2014, in case No. RIF1401741, the People filed a complaint alleging
that defendant failed to reregister as a sex offender after he moved out of his residence,
under section 290.013, subdivision (a). The complaint also alleged two strike priors. On
May 6, 2014, the trial court issued a warrant for one million dollars in the case. The
warrant appeared to be outstanding and the case appeared to be active. However, there
were no future court dates on the case.
On April 2, 2021, defense counsel filed a motion to vacate conviction/sentence
under section 1473.7.
On May 17, 2021, defendant was not present under section 977, and the court
granted a stipulated motion to continue the hearing under section 1050, subdivision (d).
On June 22, 2021, the People filed an opposition to defendant’s motion to
withdraw his guilty plea under section 1473.7.
On June 30, 2021, the court found good cause to continue the case to August 2,
2021. The court ordered Doe to return and for defendant to be present at the next date.
The court then stated that defendant’s section 977 appearance was not authorized by the
court, and the bench warrant remained outstanding.
On August 2, 2021, the trial court indicated that it had read and considered
defendant’s declaration and granted a motion to continue. The bench warrant remained
outstanding.
On November 2, 2021, the trial court filed defendant’s brief supplementing his
motion to vacate his past convictions and to set aside his guilty plea under section 1473.7.
The court denied defendant’s motion and the bench warrant remained outstanding.
4 On November 12, 2021, defendant filed a notice of appeal from the court’s denial
of his motion under section 1473.7. The court denied defendant’s request for a certificate
of probable cause.
STATEMENT OF FACTS
In a motion filed on April 2, 2021, defendant moved to vacate the 2009 guilty
verdict (count 1) and his 2011 guilty plea (counts 4 & 5). Defendant noted that section
1473.7 provided people who are no longer in criminal custody with an opportunity to
raise a claim of legal invalidity based on actual innocence or a defendant’s failure to
meaningfully understand, defend against, or knowingly accept the immigration
consequences of his plea.
Defendant indicated that he is a Romanian citizen and a permanent legal resident
of the United States. He left the United States in 2013 because of death threats he and his
wife received from Doe’s father (Father). In 2014 Father murdered Father’s wife, tried to
kill another person, and then committed suicide. Doe is now 28 years old and has since
recanted her allegations against defendant.
Moreover, defendant argued that since he is a noncitizen, (1) he “suffers all of the
adverse immigration consequences of deportation, exclusion from admission to the
United States, or denial of . . . naturalization;” (2) he is deportable under the Immigration
and Nationality Act because of his convictions and he is certain to face immigration
consequences as sexual abuse of a minor is an aggravated felony regardless of the
sentence. (8 USC § 101, subd. (a)(43)(A).)
5 Defendant additionally provided that the Board of Immigration Appeals has
considered intentional sexual conduct by an adult with a child is a crime of moral
turpitude. And a conviction under section 288 constitutes a crime for violence for
purposes of unlawful reentry under the United States Sentencing Guidelines Manual
§ 2L1.2, even though the offense does not have force as an element of the crime.
Furthermore, defendant stated that he is ineligible for immigration relief or asylum
because of his convictions.
A document attached to the motion included defendant’s declaration dated March
30, 2021, translated from Romanian, which stated:
“1. My name is Emanuel Chiriac. I am the defendant in the herein action. All
of the facts herein alleged are within my own personal knowledge and, if called upon as a
witness, I could competently testify thereto.
“2. My country of citizenship is Romania.
“3. I am married to my wife, Claudia Chiriac, a United States citizen, and we
have four United States citizen children.
“4. I am a legal permanent residence of the United States. I left the United
States in 2013 due to death threats my wife and I suffered from . . . the father of the only
alleged victim in this case.
“5. In 2014, [Father] murdered his wife . . . and also tried to kill another person
before committing suicide.
“6. [Doe], the alleged victim on this case, is now 28 years old and has since
recanted her allegations.
6 “7. In 2007, a felony complaint was filed against me. The complaint alleged
three counts of Penal Code section 288(b)(1) and one count of Penal Code section
288(a)[], crimes that I allegedly committed in May 2006. An amended information was
filed on July 27, 2007[,] alleging three counts of Penal Code section 288(b)(1).
“8. I denied all allegations and charges and I took my case to trial. On or
around July 5, 2007, I was found guilty by a jury on count one and hung on counts two
and three. On March 16, 2011, I pled to amended counts four and five, violations of
Penal Code section 288(a), Lewd or lascivious act [on] a child who is under the age of 14
years. I was sentenced to 365 days in county jail [and to] five years formal probation.
“9. My convictions should be dismissed because I was convicted for crimes I
did not commit.
“10. The victim on this case. [Doe] has recanted her statement and states that all
of the allegations pertaining to my case were made up.
“11. Because of the made-up allegations, I suffered criminal convictions which
are causing severe immigration consequences. I am deportable, inadmissible, and
ineligible for naturalization because of my convictions.
“12. I respectfully request the Court vacate my convictions because I am not
guilty of the accusations and the resulting convictions.
“I declare under penalty of perjury under the laws of the [State of] California that
the foregoing is true and correct. Executed on 3/30/2021. [Signed Emanuel Chiriac]”
7 The motion also attached (1) articles regarding Father killing Father’s wife,
shooting another individual, and committing suicide; and (2) an undated handwritten
letter from Doe wherein she recanted her accusations against defendant.
In the People’s opposition to defendant’s motion, the People argued that when
defendant entered his plea, he signed a felony advisement of rights form, which included
that defendant understood the immigration consequences pursuant to his plea. Defendant
attested that he entered his plea knowingly, voluntarily and with the advice of counsel.
Notwithstanding, 10 years later, defendant contends that “he has new evidence of actual
innocence and that he is likely to have future immigration consequences of his plea.”
The People, in its opposition, pointed out that defendant failed (1) to explain why
he did not file his section 1473.7 motion until four years after the statute was created;
(2) to explain why it took him 10 years to attempt to vacate his plea; (3) to show “his
attorney did not thoroughly advise him at the time” of the immigration consequences of
his plea; and (4) to show “he did not understand the future immigration implications
through the conviction at trial or his voluntary plea to the charges.”
The People went on to argue that although defendant was alleging new evidence
after 14 years, the issue that Father had forced her to falsely accuse defendant of
molesting her was defendant’s defense at trial. It is not new evidence that fundamentally
undermines the judgment. Moreover, defendant must show “ ‘the evidence of innocence
could not have been, and presently cannot be, refused.’ ”
Based on the foregoing, the prosecutor urged the court to deny defendant’s section
1473.7 motion to vacate his guilty plea based upon (1) his warrant status; (2) he had not
8 met his burden to show that he was not advised of the consequences of his plea, that he
was prejudiced as a result, and that he did not enter his guilty plea knowingly and
voluntarily; and (3) there was no new evidence presented by defendant that was not
litigated in the first trial.
Thereafter, the court filed defendant’s declaration, dated July 30, 2021, which
stated:
“In accordance with the laws of California, I Emanuel Chiriac, hereby declare:
“1. My name is Emanuel Chiriac. I am the defendant in the herein action. All
of the facts herein alleged are within my own personal knowledge and, if called upon as a
“2. I am not able to travel back into the United States due to the Covid-19
restrictions that have been set on the United Kingdom (England).
“3. As of July 19, 2021, ‘The CDC has issued a Level 4 Travel Health Notice
for the United Kingdom due to Covid-19.’ This would make traveling between both
nations extremely difficult.
“4. I am unable to travel into the United States due to problems with
immigration as well.
“5. This is due to the warrant for my arrest.
“6. The warrant for my arrest would mean that I will be detained by
immigration the minute I step onto US soil. If detained I will most definitely not be
allowed to leave custody to go to court.
9 “7. Once the warrant has been lifted, I will be able to fix the restrictions on my
green card and I will be able to immediately re-enter into the United States.
“8. I also cannot fly because of the restrictions that have been placed on my
green card.
“I declare under penalty of perjury under the laws of California that the foregoing
is true and correct. Executed this on July 30th 2021.” The declaration was signed by
defendant and notarized.
On September 9, 2021, the trial court granted a continuance under section 1050,
and indicated that no further continuances would be granted. The bench warrant
remained outstanding.
On the date of the hearing, November 2, 2021, the trial court allowed defendant to
file another brief in support of his motion. Defendant argued that his trial counsel “failed
to take any steps to defend against the immigration consequences associated with” the
offense for which he was on trial. Therefore, defendant “failed to intelligently assess the
severity of the immigration consequences he would suffer.” Because defendant did not
receive the required advisements, defendant currently “faces dire immigration
consequences.” He “was denied asylum in 2000.” Moreover, because of the convictions,
he is barred from applying “for an adjustment of immigration status” through his U.S.
citizen wife.
Defendant reiterated his argument that because his probation had been revoked, he
fell within section 1473.7 as the statute “fails to clarify whether a person [whose]
10 probation has been revoked is considered in or out of custody.” Defendant asked the
court to consider this issue.
Moreover, defendant argued that Doe’s recantation was newly discovered
evidence of his actual innocence and “additional inquiry is necessary to determine”
whether the system failed.
At the hearing, defense counsel orally repeated the positions stated in defendant’s
moving papers and brief. The prosecutor submitted on the record.
The trial court initially noted that section 1473.7 is limited to an individual no
longer in criminal custody; and that a petition for writ of habeas corpus is the traditional
route wherein a person in custody challenges a conviction. The court stated, “Physical
custody is not required for a person to be constrained under restraint, and a person on
probation is in constructive custody and under restraint.” (Citing People v. Cruz-Lopez
(2018) 27 Cal.App.5th 212, 220-221.) The court noted, “A person on probation is in
custody because he or she is subject to restraints not shared by the public generally and
may lose his liberty and be eventually incarcerated.” (Citing People v. Villa (2009) 45
Cal.4th 1063, 1070.) The court then added that “Section 1473.7 is not applicable to a
person under probation at the time the motion is presented.” (Citing Cruz-Lopez, at p.
221.)
The court then stated: “In this case, the defendant is still considered to be under
constructive custody. He is on probation. Probation has been revoked for alleged
violations of a bench warrant and a bench warrant has issued and he will potentially be
sentenced to prison for violating probation. It is clear the defendant is subject to
11 restraints not shared by the public generally and may lose his liberty and be eventually
incarcerated within the meaning of [People v. Villa, supra, 45 Cal.4th at p. 1070].”2
Although the court indicated that it could summarily deny defendant’s motion
based on the ground that section 1473.7 was not applicable, the court added that there
were additional grounds for denying defendant’s motion: “The Fugitive Disentitlement
Doctrine gives a court discretion to dismiss an appeal by a defendant who is a fugitive
from justice.” (Citing Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531
(Polanski).) The court described the “long-existing doctrine” as follows:
“A party to an action cannot with right or reason ask the aid and assistance of a
Court in hearing his demands while he stands in an attitude of contempt to legal orders
and processes of the courts of this state. [(MacPherson v. MacPherson (1939) 13 Cal.2d
271, 277.)] [¶] Courts have said that such a defendant forfeits the right to invoke the
jurisdiction of the courts to review a judgment that the fugitive flouts and puts himself
rather than the courts in a [position] of determining whether to submit to the court’s
judgment.” (Citing Polanski, supra, 180 Cal.App.4th at p. 532.)
The court noted the Fugitive Disentitlement Doctrine encourages individuals to
surrender voluntary which “promotes the efficient dignified operation of the courts,
[Degen v. U.S. (1996) 517 U.S. 820, 824]. The trial court noted that although Polanski
dealt with an appeal, “the logic and purpose of the doctrine does apply” to a section
2As noted by appellate counsel and in our procedural background ante, on November 18, 2013, the reporter’s transcript indicated that the court stated defendant’s bond was forfeited and issued a bench warrant. There is no record that the court revoked defendant’s probation.
12 1473.7 motion, and that courts should balance concerns when determining whether the
application of the doctrine “is a proper sanction for a party’s flight.” (Citing Polanski,
supra, 180 Cal.App.4th p. 533.)
The trial court observed that in choosing whether the doctrine applies, it had to
consider whether defendant was seeking relief while insulating himself from an
unfavorable legal result; whether application of the doctrine would encourage voluntary
surrender; whether defendant sought to gain a tactical advantage by fleeing the
jurisdiction; how long defendant waited to raise his claim; “and prejudice as a result of
his delay and the existence of legal alternatives to flight.” (Citing Polanski, supra, 180
Cal.App.4th at pp. 538-547.)
Recognizing that its application of the doctrine is reviewed for abuse of discretion
under Polanski, the court stated, “this case calls out for” its application: “The defendant
has been at large for years. The only reasonable conclusion that I draw from the case in
total, even given all the assertions by the defendant in his declarations—the only
reasonable conclusion is that he did flee the jurisdiction. [¶] He has been in violation of
his probation since 2013. He is seeking relief from the courts while insulating himself
from the consequences of an unfavorable result by staying in another country because he
would be arrested should he try to cross the border into the United States. The
application of the Fugitive Disentitlement Doctrine does encourage, in this case,
voluntary surrender. It does have a deterrent effect. If the defendant is required to
submit to the court’s authority to obtain a relief, he is more likely to bring himself before
13 the court, and this would have a deterrent effect on defendants who believe they can
abscond and raise and litigate claims of innocence from abroad.”
“Other than encourage and surrender, the Court has little to no ability to protect its
own dignity from the defendant who has denied this court. The defendant has certainly
gained a [tactical] advantage by fleeing and remaining free from custody despite the fact
that the court has issued a bench warrant for his arrest and in delaying adjudication from
his probation violation. With respect to the timing of the raising of the claim, because the
defendant has failed to explain his delay, the court is unable to evaluate how long he
waited to raise this claim.
“This case is alarmingly close to the fact pattern in Polanski. Given the entire
analysis, A, I do not believe the defendant is entitled to have this matter reviewed
because he is still under the jurisdiction of the court, and so he is not entitled pursuant to
[1473.7]. Furthermore, as I have already stated, I will not conduct a—a new trial analysis
for him without him being personally present. The motion pursuant to 1473.7 is denied.
The bench warrants will remain outstanding.”
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issues to assist the court in its search of the record for error:
14 (1) “Did the court properly deny [defendant]’s section 1473.7 motion based on
its finding the statute did not apply to [defendant] because he was in constructive custody
as he remained on probation?”
(2) “Did the court abuse its discretion by denying [defendant]’s section 1473.7
motion by applying the Fugitive Disentitlement Doctrine by finding that [defendant]
sought ‘relief from the courts while insulating himself from the consequences of an
unfavorable result by staying in another country because he would be arrested should he
try to cross the border into the United States, as he had fled the jurisdiction’?”
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We are satisfied that defendant’s
attorney has fully complied with the responsibilities of counsel and no arguable issue
exists. (Id. at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The trial court’s denial of defendant’s motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J. We concur:
McKINSTER Acting P. J.
CODRINGTON J.