People v. Morales

235 Cal. Rptr. 3d 776, 25 Cal. App. 5th 502
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 24, 2018
DocketNo. A152530
StatusPublished
Cited by31 cases

This text of 235 Cal. Rptr. 3d 776 (People v. Morales) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Morales, 235 Cal. Rptr. 3d 776, 25 Cal. App. 5th 502 (Cal. Ct. App. 2018).

Opinion

STEWART, J.

*778*504Appellant Ruben Anaya Morales was convicted of a 2002 drug offense, to which he pleaded no contest. He served his sentence, voluntarily departed the United States and reentered the country. In 2017, while residing in the United States, he filed a motion to vacate this conviction under the newly enacted Penal Code section 1473.71 as a part of his effort to obtain legal status via a "U visa." Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for a U visa, and that he pleaded no contest in 2002 only as a result of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the United States.

Section 1473.7, subdivision (a)(1) authorizes a noncitizen convicted of a crime upon pleading no contest who is now free from custody to prosecute a motion to vacate that conviction for ineffective assistance of counsel when the conviction has caused unforeseen actual or potential adverse immigration consequences. Morales filed exactly such a motion. Nonetheless, the superior court denied his motion without prejudice based on its interpretation of section 1437, subdivision (b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. Both Morales and the Attorney General contend the court ignored the plain terms of section 1473.7, subdivision (a)(1) and wrongly determined that section 1473.7, subdivision (b) eviscerates the broad authority granted by subdivision (a)(1) and bars a noncitizen from bringing any motion under section 1473.7 until after the entry of a final removal order. We agree. The superior court's holding is an untenable construction of the statute that is contradicted by the statute's plain language and its legislative history, and would produce absurd results. Therefore, we reverse the trial court's decision and remand for further proceedings consistent with this opinion.

*505BACKGROUND

In January 2002, the San Mateo County District Attorney charged Morales in an amended information with felony possession for sale of a controlled substance, methamphetamine ( Health & Safety Code, § 11378 ), and the felony transportation, importation, and selling of a controlled substance, also methamphetamine (id. , § 11379). Both counts also included weight enhancement allegations. As part of a negotiated disposition, Morales, represented by counsel, entered a no contest plea to possession for sale of a controlled substance. He also admitted the truth of the accompanying weight enhancement allegation, but the court later struck it and dismissed the transportation count. It sentenced Morales to a three-year prison term, with 199 days of credits. Morales served his sentence, voluntarily departed *779the United States for Mexico in the face of deportation and reentered the United States shortly thereafter.

In 2016, the Legislature enacted section 1473.7, which became effective January 1, 2017. (Stats. 2016, ch. 739, § 1; People v. Perez (2018) 19 Cal.App.5th 818, 820, 228 Cal.Rptr.3d 95 ( Perez ).) Section 1473.7 allows noncitizens previously convicted of crimes to which they pleaded no contest or guilty and who are no longer imprisoned or otherwise legally restrained to challenge their convictions based on, among other things, their counsels' failure to properly inform them of "the actual or potential adverse immigration consequences" of their pleas. ( § 1473.7, subd. (a)(1).) Section 1473.7 further provides that such a motion "shall" be filed with "reasonable diligence" after the later of the date the noncitizen receives a court or government notice asserting the conviction as a basis for removal or the date a removal order based on the conviction becomes final. ( § 1473.7, subd. (b)(1), (2).)2

*506In May 2017, a little more than five months after section 1473.7 went into effect, Morales filed his motion. In a sworn declaration, he asserted that his conviction was his only criminal case, and that at the time he filed his motion he was 34 years old, married, a father and the sole financial supporter of his family.

Morales did not file his motion in the face of any removal proceeding. Rather, he filed it as part of his effort to obtain legal status in the United States. He stated in a declaration that he had been a victim of a store robbery in East Palo Alto in 2009, and that he had assisted law enforcement's investigation of that crime. He contended that his assistance made him eligible to *780receive a "U visa," a temporary nonimmigrant visa created by Congress to provide legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized. (See 8 U.S.C. § 1101(a)(15)(U) ; Fonseca-Sanchez v. Gonzales (7th Cir. 2007) 484 F.3d 439, 442, fn. 4.) Morales further declared he had submitted a U visa application, that this application was pending, and that it included a written certification from a law enforcement official that he had cooperated in the investigation of the store robbery. In this certification, a copy of which Morales attached to his declaration, a law enforcement official identified Morales as the victim of armed robbery, false imprisonment and felonious assault, or attempts to commit these crimes, and stated that Morales had cooperated in the investigation and prosecution of the perpetrators.

Morales also declared he had recently been counseled that his 2002 conviction barred him from "ever" having his U visa application granted. He contended that a U visa would not be granted to a noncitizen who was "inadmissible" under federal immigration law for his drug offense, citing section 214.1(a)(3)(I) of volume 8 of the Code of Federal Regulations, and section 1182, subdivision (a)(2)(A)(i)(II) of volume 8 of the United States Code. He also declared that in 2002 neither his attorney nor the court told him his conviction would cause him to be deported or bar him from ever *507coming into the United States again, and that he would not have entered his no contest plea if he had known his conviction would cause his deportation. He further contended he had properly brought his motion under section 1473.7 even though he was not a subject of removal proceedings.

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Cite This Page — Counsel Stack

Bluebook (online)
235 Cal. Rptr. 3d 776, 25 Cal. App. 5th 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morales-calctapp5d-2018.