Filed 8/16/19 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E069339
v. (Super.Ct.No. RIF121343)
JORGE A. MILLAN RODRIGUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Reversed.
Conrad Petermann, Siri Shetty, under appointment by the Court of Appeal, for
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Adrian R.
Contreras and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and
Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
On March 3, 2005, defendant and appellant Jorge A. Millian Rodriguez pled guilty
to unlawful intercourse by a person over 21 under Penal Code1 section 261.5, subdivision
(d). Defendant, as a person over 21, admitted to having sex with a person under the age
of 16. The trial court sentenced defendant to formal probation for 36 months.
On June 7, 2005, defendant was taken into custody by the Immigration and
Naturalization Service pending resolution by an immigration judge whether defendant
would be removed from the United States. That same year, defendant was ordered
removed.
On November 6, 2007, defendant admitted to violating his probation. The trial
court added 60 days to defendant’s sentence, to be served on a work release program to
commence on December 14, 2007, and reinstated defendant’s probation. On September
10, 2008, defendant admitted a violation of a term of his probation requiring defendant to
report to probation. The court then reinstated probation.
“On December 16, 2016, defendant filed a petition for dismissal under . . . section
1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under . . .
section 17, subdivision (b). As mitigation, defendant provided in his petition that he
married the victim and had two children with her. Moreover, defendant noted that both
violations of probation occurred because he was in the custody of Immigration and
Customs Enforcement (ICE) and was deported so he was unable to meet his probation
1 All further statutory references are to the Penal Code unless otherwise specified.
2 officer or check in for his weekend custody obligation.” (People v. Rodriguez, case No.
E067686, p. 2).) The trial court denied both of defendant’s motions. (Ibid.)
On January 30, 2017, defendant filed an appeal. On June 14, 2017, we affirmed
the trial court’s order denying defendant’s motions, “but without prejudice to defendant’s
right to file a motion for relief under newly-enacted . . . section 1473.7; effective January
1, 2017.” (People v. Rodriguez, supra, case No. E067686 at p. 7.)
On January 1, 2017, section 1473.7 went into effect. Among other things, section
1473.7 permits a defendant to challenge a conviction based on a guilty plea where
prejudicial error affected the defendant’s ability to understand the immigration
consequences of the plea.
On July 10, 2017, following the filing of our opinion in defendant’s first appeal,
defendant, in pro. per., filed a motion to vacate his conviction under section 1473.7. On
August 10, 2017, the trial court denied defendant’s motion without defendant or defense
counsel present.
On October 4, 2017, defendant filed a timely notice of appeal. The next day, the
trial court granted defendant’s request for a certificate of probable cause. On February
23, 2018, defendant filed a request for judicial notice of the record in case No. E067686.
On March 20, 2018, we granted defendant’s request for judicial notice. On February 13,
2019, the People filed a request for leave to file a supplemental respondent’s brief and a
request for judicial notice. On February 21, 2019, we granted the People’s motions to file
a supplemental brief and for judicial notice of the documents attached to the motion, and
directed the clerk to file the People’s supplemental respondent’s brief. We also ordered
3 that defendant may serve and file a supplemental reply brief. On March 12, 2019,
defendant filed his supplemental reply brief. On May 29, 2018, the People filed another
motion for judicial notice of “Senate Committee on Appropriations, Bill Analysis of
Assembly Bill 813 (2015-2016 Reg. Sess.) as of June 29, 2016,” which the People
attached to its request. On June 13, 2018, we reserved ruling on the request, to be
considered with the appeal. We hereby grant the People’s request for judicial notice
DISCUSSION
A. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
DEFENDANT’S SECTION 1473.MOTION
Defendant contends that the trial court erred in denying his motion to vacate his
conviction under section 1473.7. The People contend that the court’s ruling should be
affirmed because defendant “failed to allege a prima facie case of timeliness.”2 For the
reasons set forth post, we find that the trial court abused its discretion in denying
defendant’s motion.
1. LEGAL BACKGROUND
Section 1473.7 permits a defendant to move to vacate his conviction where
prejudicial error affected his ability to understand the immigration consequences of his
2 In their respondent’s brief, in addition to the timeliness argument, the People also argued that the order should be affirmed because “there is no cognizable claim of ineffective assistance of counsel because [defendant’s] counsel had no affirmative obligation to advise him of the immigration consequences of his plea at the time that [the] plea was entered in 2005.” On March 15, 2019, however, the People filed a letter in this court withdrawing that argument. The People, in withdrawing the argument, agree with defendant that defense counsel had an affirmative duty to advise defendant of adverse immigration consequences but failed to do so.
4 guilty plea. As pertinent here, to prevail on this motion, the defendant must establish the
following: (1) the defendant is no longer imprisoned or restrained; and (2) the conviction
is legally invalid due to a prejudicial error damaging the defendant’s ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of a guilty plea. (§ 1473.7, subd. (a).) Moreover, the
motion must be filed with “reasonable diligence” after either (1) the date the defendant
receives a notice to appear in immigration court or other notice from immigration
authorities that asserts the conviction or sentence as a basis for removal; or (2) the date
the removal order against the defendant, based on the existence of the conviction or
sentence, becomes final, whichever event occurs last. (§ 1473.7, subd. (b).)
2. STANDARD OF REVIEW
The People contend that we should review the court’s order for an abuse of
discretion, citing decisions involving section 1018 (See, e.g., Ponte v. County of
Calaveras (2017) 14 Cal.App.5th 551, 555; People v. Foss (2007) 155 Cal.App.4th 113,
126; Paterno v. State of California (1999) 74 Cal.App.4th 68, 102). Section 1018,
however, does not implicate the defendant’s constitutional rights. Section 1018 permits a
court to grant a defendant’s application to withdraw a plea “for a good cause shown,”
such as the defendant’s “[m]istake, ignorance or any other factor overcoming the exercise
of free judgment.” (People v. Cruz (1974) 12 Cal.3d 562, 566.) When, however, a trial
court’s decision implies the rejection of a defendant’s argument that he or she has been
deprived of a constitutional right, such as the right to effective assistance of counsel, the
issue is a mixed question of law and fact, which we determine independently. (See, e.g.,
5 In re Resendiz (2001) 25 Cal.4th 230, 249, abrogated in part on other grounds in Padilla
v. Kentucky (2010) 559 U.S. 356, 370; People v. Ledesma (1987) 43 Cal.3d 171, 210; see
generally People v. Ault (2004) 33 Cal.4th 1250, 1264 [de novo review of mixed law and
fact questions particularly favored when constitutional right is implicated].) Thus, in
People v. Taylor (1984) 162 Cal.App.3d 720, the court noted that although the denial of a
motion for new trial is ordinarily reviewed for abuse of discretion, when the motion is
based upon the defendant’s allegation that he was deprived of his constitutional right to
the effective assistance of counsel, the appellate court will indulge all presumptions in
favor of the trial court’s express and implied factual findings, but retain “ ‘ “the ultimate
responsibility . . . to measure the facts, as found by the trier, against the constitutional
standard . . . .” [Citation.] On that issue, in short, the appellate court exercises its
independent judgment.’ ” (Id. at pp. 724-725.)
We acknowledge that the standard of review applicable to the denial of a section
1473.7 motion is unsettled, insofar as defendant claims a deprivation of the constitutional
right to effective assistance of counsel. To the extent the motion asserts statutory error or
a deprivation of statutory rights, the denial is reviewed for an abuse of discretion. (See
People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.) However, to the extent the motion
asserts ineffective assistance of counsel, there is a division among the appellate courts
whether the denial is reviewed under the “abuse of discretion” standard or the less
deferential standard applicable to “ ‘a mixed question of fact and law.’ ” (Id. at p. 76
[court of appeal applied de novo standard in reviewing trial court’s order denying the
defendant’s motion to vacate conviction under section 1473.7].) The People argue that
6 “this court should decline to follow [Ogunmowo] because it was wrongly decided.”
Recently, in People v. Fryhaat (2019) 35 Cal.App.5th 969, 975, we followed the standard
of review set forth in Ogunmowo. We need not determine the People’s argument
because, as discussed further post, the trial court abused its discretion in denying
3. THE MOTION WAS FILED ON A TIMELY BASIS
As provided above, the People contend that defendant’s “motion did not allege a
prima facie case regarding timeliness.” We disagree.
In this case, at the hearing on defendant’s motion, the trial court stated as follows:
“Calling the matter of People versus Rodriguez, RIF121343, appellate docket
E067686. The defendant is not present. The defendant is currently in detention by the
federal government on a detainer, ICE hold. The Court reviewed the defendant’s motion
under . . . section 1473.7.
“The court also reviewed the appellate division in E067686 where the appellate
court advised the defendant, which was a very unusual thing for the Court of Appeals to
do, to file a motion in the trial court under . . . section 1473.7. The court is taking judicial
notice of the E067686, and also all of the records, including the Tahl Waiver, the
transcript of the sentencing, and this case, RIF121343.
“The only issue for this Court, the only issue, is whether or not this motion was
brought into the trial department on a timely basis. Defendant was convicted in this case
on March 3rd, 2005, and was arrested in written notification of ICE detention on June 7,
7 2005, at which time he requested a hearing before the immigration court to determine
whether or not he is to remain in the United States.
“Later, in 2005, he was ordered removed from the United States of America. He
admits that in his motion that his ICE detention and subsequent deportation was due to
the conviction in this case. [S]ection 1473.7 is not an open-ended invitation to file
motions to vacate based on immigration consequences advisement.
“The issue, basically, is—main issue is reasonable diligence. Did the defendant
act reasonably and diligently in filing his motion? The Court indicates he did not. He
was given actual notice of his immigration consequences when he was deported in 2005.
He should have hired a lawyer in 2005, 2006, 2007 instead of coming back to the United
States. Now he’s once again in a detention facility ten years later. That’s not reasonable.
So the motion is denied.”
In sum, the trial court denied defendant’s motion because it found that defendant
should have filed his motion in “2005, 2006, 2007.” This reasoning by the trial court,
even under the abuse of discretion standard of review, is erroneous because defendant
could not have filed his motion in “2005, 2005, [or] 2007” because section 1437.7 did not
become effective until January 1, 2017. In fact, we advised defendant that he could ask
for relief under newly enacted section 1473.7 in our opinion filed on June 14, 2017.
Defendant filed his motion on July 10, 2017—less than one month after we issued our
opinion. The trial court, therefore, abused its discretion in denying defendant’s motion
based on the fact that defendant did not act reasonably and diligently because he should
have filed his motion over 10 years prior to the enactment of section 1473.7.
8 On appeal, the People “acknowledge[] the superior court’s reasoning on timeliness
and diligence was partly erroneous.” “In assessing reasonable diligence, the superior
court could consider that it is reasonable not to have filed a motion when the statute that
created the motion did not exist.” Nevertheless, the People argue that we should affirm
the trial court’s order denying defendant’s motion because defendant failed to “explain
why he waited until July 10, 2017, to file his motion when section 1473.7 became
effective several months earlier on January 1, 2017.” The People, however, failed to
address why this seven-month delay disqualified defendant from taking advantage of the
newly-enacted statute. As noted above, defendant filed his motion weeks after we issued
our opinion in defendant’s previous appeal advising defendant that he now had a remedy
under section 1473.7. In People v. Ogunmowo, supra, 23 Cal.App.5th 67, the defendant
filed his section 1473.7 motion two months after the effective date of the statute.
(Ogunmowo, at p. 75.) The appellate court found this satisfied that the motion was
timely. (Id. at p. 81.) Here, we also fail to see how this short delay presented a “pleading
deficiency,” as argued by the People.
In sum, defendant was still in ICE detention and his removal proceedings were
ongoing. Moreover, in our opinion filed on June 14, 2017, we advised defendant to file a
petition under section 1473.7 in the trial court. Less than a month later, defendant filed
his motion under section 1473.7. We find that defendant acted with “reasonable
diligence” under the statute and the trial court abused its discretion in finding defendant
did not act with reasonable diligence because he should have filed his motion over 10
9 years prior to the enactment of section 1473.7.3 The court, therefore, erred in denying
defendant’s motion based on untimeliness.
B. THE TRIAL COURT VIOLATED DEFENDANT’S RIGHT TO HAVE
COUNSEL PRESENT AT THE HEARING4
Section 1473.7, subdivision (d), in effect at the time of the hearing on August 10,
2017, provided: “All motions shall be entitled to a hearing. At the request of the moving
party, the court may hold the hearing without the personal presence of the moving party if
counsel for the moving party is present and the court finds good cause as to why the
moving party cannot be present.” (Former § 1473.7, subd. (d), italics added.)
In this case, the trial court failed to comply with the requirements set forth under
former section 1473.7, subdivision (d). When the trial court called the matter, defendant
was not present. The court noted: “The defendant is currently in detention by the federal
government on a detainer, ICE hold.” Moreover, the transcript from the hearing showed
that defendant was not represented by counsel at the hearing. Therefore, when the court
ruled on the section 1473.3 motion, it did so without defendant’s waiver of his right to be
present, or without counsel present.
3 The People, in their respondent’s brief, argued that “[e]ven if the superior court erred regarding timeliness and diligence, the ruling should be affirmed on the alternative ground that the record did not establish defense counsel was ineffective.” The People, withdrew this argument in the letter dated March 15, 2019.
4 Although we find that the trial court erred in denying defendant’s section 1473.7 motion based on untimeliness, we address the right to counsel issue because this issue needs clarification when the trial court conducts a new hearing on this motion after remand.
10 Section 1473.7 was amended effective January 1, 2019. Amended section 1473.7,
subdivision (d), now provides, “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. If the prosecution has no objection to the motion, the court may grant the
motion to vacate the conviction or sentence without a hearing.” There is nothing in the
amended language requiring the presence of counsel.
In their supplemental brief, the People contend that the Legislature, by amending
section 1473.7, subdivision (d), to remove the language authorizing the court to hold a
hearing without the presence of the moving party if counsel for the moving party is
present, intended to clarify the statute and eliminate any implication it provides a right to
appointed counsel. The People also argue that applying a clarifying amendment to
conduct predating the amendment does not constitute a retroactive application of the new
provision. In support of their argument, the People point to the “ambiguous” language in
former subdivision (d), which does not expressly provide for court-appointed counsel;
statements in legislative committee reports that the purpose of the amendment was to
provide clarification regarding section 1473.7; and the absence of any comments in the
legislative history regarding deletion of the language regarding the presence of the
moving party’s counsel at the hearing on a section 1473.7 motion, which the People
suggest indicates the amendment did not effect a material change in that portion of the
statute.
11 The points raised by the People, however, weaken their argument, rather than
support it. Although former subdivision (d) did not expressly provide for a right to
counsel, the most reasonable interpretation of its plain language contemplated that
counsel would be appointed for indigent parties who were unable to attend the hearing
because they were in federal detention awaiting deportation. If the Legislature had
intended to “clarify” the language in former section 1473.7 by eliminating the right to
appointed counsel, some comment on that point should be in the legislative history.
There is nothing.
We addressed and rejected the points raised by the People in Fryhaat, supra, 35
Cal.App.5th 969. In Fryhaat, the defendant argued that “the trial court erred in
summarily denying his motion to vacate his conviction with a hearing, without his
presence and without appointed counsel in violation of [former] section 1473.7.” (Id. at
p. 975.) Although the People agreed that the defendant was entitled to a hearing and the
matter must be remanded, “[t]he People believe[d] that, pursuant to the recent
amendments to section 1473.7, [the] defendant [did] not have a right to appointed counsel
and that his presence can adequately be protected by use of telephonic or
videoconference services.” (Ibid.) We disagreed with the People. We found that
although “section 1473.7 does not require a superior court to secure a defendant’s
presence at the hearing, [] if a defendant’s presence is waived or good cause exists to
excuse a defendant’s presence, such as when a defendant is confined in federal
immigration custody, then counsel must be appointed.” (Id. at p. 983-984.) We hereby
adopt the analysis and holding in Fryhaat, supra, 35 Cal.App.5th 969.
12 “[T]he People’s argument ignores the Legislative Counsel’s Digest summarizing
the final version of Assembly Bill No. 2867 (2017-2018 Reg. Sess.), which plainly
anticipated continuation of the right to counsel implicit in the original version of section
1473.7: ‘Existing law authorizes the court, at the request of the moving party, to hold the
hearing without the personal presence of the moving party if counsel for the moving party
is present and the court finds good cause as to why the moving party cannot be present.
[¶] . . . The bill would authorize the court, upon the request of the moving party, to hold
the hearing without the personal presence of the moving party and without the moving
party’s counsel present provided that it finds good cause as to why the moving party
cannot be present.’ (Legis. Counsel’s Dig., Assem. Bill No. 2867 (2017-2018 Reg.
Sess.).)” (Fryhaat, supra, 35 Cal.App.5th at p. 980, italics added.)
In rejecting the People’s contention, we also noted that “‘[c]ourts should, if
reasonably possible, construe a statute “in a manner that avoids any doubt about its
[constitutional] validity.”’ (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334,
346.) ‘ “If a statute is susceptible of two constructions, one of which renders it
constitutional and the other unconstitutional (or raises serious and doubtful constitutional
questions), the court will adopt the construction which will render it free from doubt as to
its constitutionality, even if the other construction is equally reasonable.” ’ (Field v.
Bowen (2011) 199 Cal.App.4th 346, 355; see Association for Retarded Citizens v. Dept.
Of Developmental Services (1985) 38 Cal.3d 384, 394.)” (Fryhaat, supra, 35
Cal.App.5th at p. 980.)
13 Additionally, we agreed with the People that “neither the federal nor the state
Constitution mandates an unconditional right to counsel to pursue a collateral attack on a
judgment of conviction. (See, e.g., Pennsylvania v. Finley (1987) 481 U.S. 551, 556-557
[no federal constitutional or due process right to appointed counsel in state postconviction
proceedings]; People v. Shipman (1965) 62 Cal.2d 226, 231-232 (Shipman); cf. In re
Barnett (2003) 31 Cal.4th 466, 474-475 [no federal or state “constitutional right to
counsel for seeking collateral relief from a judgment of conviction via state habeas
corpus proceedings”].) Nevertheless, ‘if a postconviction petition by an incarcerated
defendant “attacking the validity of a judgment states a prima facie case leading to
issuance of an order to show cause, the appointment of counsel is demanded by due
process concerns.” ’ (People v. Rouse (2016) 245 Cal.App.4th 292, 300, quoting In re
Clark (1993) 5 Cal.4th 750, 780.)” (Fryhaat, supra, 35 Cal.App.5th at pp. 980-981.)
“As explained by the California Supreme Court in Shipman, supra, 62 Cal.2d at p.
231, ‘whenever a state affords a direct or collateral remedy to attack a criminal
conviction, it cannot invidiously discriminate between rich and poor.’ Compliance with
the principle that invidious discrimination should be rooted out as unconstitutional, which
does not require ‘absolute equality to the indigent,’ may be affected by requiring the
appointment of counsel for an indigent petitioner who, in challenging a judgment of
conviction, has set forth ‘adequate factual allegations stating a prima facie case;’
otherwise, ‘there would be no alternative but to require the state to appoint counsel for
every prisoner who asserts that there may be some possible ground for challenging his
conviction.’ (id. at p. 232.) Therefore, we construe amended section 1473.3 to provide
14 the right to appointed counsel where an indigent moving party has set forth factual
allegations stating a prima facie case for entitlement to relief under the statute; to
interpret the statute otherwise would be to raise serious and doubtful questions as to its
constitutionality.” (Fryhaat, supra, 35 Cal.App.5th at p. 981.)
“Our construction of amended section 1473.3 to provide this conditional right to
appointed counsel is supported by the Legislature’s purpose in enacting this statute. As
explained, section 1473.7 was designed to remedy the failure of then-existing California
law to provide a means for a person no longer in criminal custody to challenge a
conviction due to error affecting his or her ability to meaningfully understand the actual
or potential immigration consequences of the conviction. Specifically, a person in the
custody of federal immigration authorities could not bring such a challenge by filing a
petition for a writ of habeas corpus because he or she was ‘no longer in “custody” for
purposes of the writ.’ (Public. Safety, Rep. on Assem. Bill No. 813, supra p. 6.)
Similarly, although there is no custody requirement to bring a motion under section
1016.5 to withdraw a guilty plea for failure to be admonished of the possible immigration
consequence of the plea, a section 1016.5 motion ‘is only available where the court fails
to give the general admonishment or the record is silent on the matter.’ (Public Safety,
Rep. on Assem. Bill No. 813, supra, p. 6.) Finally, a person seeking to challenge a
conviction based on the ‘unawareness of the immigration consequences’ of his or her
plea could not petition for ‘a writ of error coram nobis’ because the challenge ‘amounted
to a claim of ineffective assistance of counsel, which is not reviewable by way of writ of
15 coram nobis.’ (Public Safety, Rep. on Assem. Bill No. 813, p. 5.)” (Fryhaat, supra, 35
Cal.App.5th at p. 981.)
“The rules governing a petition for writ of habeas corpus require a court to issue
an order to show cause if the petitioner has made a prima facie showing of entitlement to
relief, based on the petitioner’s factual allegations taken as true, and, upon issuing the
order, to appoint counsel for the petitioner who desires, but cannot afford, counsel. (Cal.
Rules of Court, rule 4.551(c).) The same requirement to appoint counsel for an indigent
petitioner who has made adequate factual allegations stating a prima facie case applies to
a petition for writ of coram nobis. (Shipman, supra, 52 Cal.2d at p. 232.) As for a
motion to vacate based on the absence of immigration advisements by the court pursuant
to section 1016.5, although the statute does not ‘specify the rules that apply to such a
motion,’ the rules for writs of coram nobis have been held to apply to a section 1016.5
motion to vacate. (People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207 [although
section 1016.5 does not expressly place burden on a defendant to prove reasonable
diligence in seeking to withdraw a plea, court of appeal held the rules for writs of coram
nobis, including the burden to prove reasonable diligence, also apply to a section 1016.5
motion to vacate ‘because a “motion to vacate” has long been equated in California with
a petition for a writ of coram nobis’].) We are not aware of any reason the rules for writs
of coram nobis applicable to a section 1016.5 motion would not include the
constitutionally grounded rules for appointing counsel for an indigent moving party.”
(Fryhaat, supra, 35 Cal.App.5th at p. 982.)
16 “In light of the fact that writs of habeas corpus and coram nobis, and likely section
1016.5 motions to vacate, require court-appointed counsel for an indigent petitioner or
moving party who has established a prima facie case for entitlement to relief, and given
that a section 1473.7 motion was intended to fill the gap left by the foregoing procedural
avenues for relief, interpreting section 1473.7 to also provide for court-appointed counsel
where an indigent moving party has adequately set forth factual allegations stating a
prima facie case for entitlement to relief would best effectuate the legislative intent in
enacting section 1473.7.” (Fryhaat, supra, 35 Cal.App.5th at p. 983, fn. omitted.)
“Moreover, both former and current versions of section 1473.7, subdivision (d),
provide, ‘All motions shall be entitled to a hearing.’ Construing the amended statute to
require appointment of counsel for an indigent moving party who has established a prima
facie case for relief and who is in federal immigration custody would avoid the untenable
result of having such a party, who cannot be personally present at a hearing, be
effectively deprived of an opportunity to present his or her case and respond to any
arguments made in opposition at the hearing on the motion.” (Fryhaat, supra, 35
Cal.App.5th at p. 983.)
D. REVERSAL AND REMAND ARE NECESSARY
In sum, because the trial court denied defendant’s motion based on untimeliness
and denied the motion without the presence of defendant or his counsel, we reverse the
trial court’s order denying defendant’s section 1473.7 motion. We remand this matter for
the trial court to consider whether defendant has set forth adequate factual allegations
stating a prima facie case for entitlement to relief under section 1473.7, to appoint
17 counsel if appropriate, and to address the section 1473.7 motion on its merits. (See
Fryhaat, supra, 35 Cal.App.5th at p. 984; People v. Braxton (2004) 34 Cal.4th 798, 818-
820 [although trial court’s error in refusing to hear new trial motion not prejudicial per se,
matter must be remanded for hearing on the motion if the appellate record does not allow
reviewing court to determine as a matter of law that the motion lacked merit or to decide
that the trial court would have properly exercised its discretion to deny the motion]; see
also People v. Anzalone (2013) 56 Cal.4th 545, 553 [“ ‘ “under the California
constitutional harmless-error provision some errors . . . are not susceptible to the
‘ordinary’ or ‘generally applicable’ harmless-error analysis—i.e., the Watson ‘reasonably
probable’ standard—and may require reversal of the judgment notwithstanding the
strength of the evidence contained in the record in a particular case” ’ ”].)
DISPOSITION
The order denying defendant’s section 1473.7 motion to vacate his conviction is
reversed, and the matter is remanded to the trial court for further proceedings consistent
with this opinion.
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
McKINSTER Acting P. J.
SLOUGH J.