Filed 1/16/20 P. v. Fraihat 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

FAOUR ABDALLAH FRAIHAT,

Defendant and Appellant.

E071129

(Super.Ct.No. FSB1301339)

OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Reversed with directions.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Faour Abdallah Fraihat is a Jordanian citizen in his mid-50’s who has been living in San Bernardino for over 30 years. He is currently in immigration custody in Adelanto with a pending order for his deportation. He appeals the summary denial of his Penal Code section 1473.7 motion to set aside his 2013 guilty plea to a drug-related offense. We will reverse the order and remand with instructions to the trial court to appoint counsel for defendant if appropriate, to conduct a hearing pursuant to section 1473.7, and to decide the motion on its merits.

BACKGROUND

In 2013, defendant was arrested in San Bernardino County for possession of methamphetamine and charged with violation of Health & Safety Code section 11378 (possession for sale of a controlled substance). He pled guilty to violating Health & Safety Code section 11379 (offer to transport a controlled substance) after entering into a plea agreement pursuant to People v. West (1970) 3 Cal.3d 595. The trial court’s advisement of legal rights form signed by defendant states, if the defendant is not a citizen and is a lawful resident alien, a guilty plea “may” result in deportation, exclusion from the United States, or denial of naturalization. The court’s plea form also executed by defendant provides that a guilty plea by a noncitizen “will” result in those adverse immigration consequences.

In July 2018, defendant, detained in the Adelanto United States Immigration and Customs Enforcement processing center and acting in propria persona, filed a motion to vacate his conviction. Although the motion incorrectly refers to a nonexistent Penal Code section “1473.3,” we agree with the parties that its contents make clear defendant intended to cite section 1473.7. The motion was bottomed on defendant’s claims that his 2013 defense counsel’s assistance had been ineffective and that the court violated section 1016.5 by failing to give him complete and correct advice concerning the plea’s potential immigration consequences before he pled guilty. He mailed the motion to the San Bernardino County Superior Court where his plea had been entered and sent a copy to that county’s district attorney’s office.

The trial court denied the motion without a hearing. A minute order issued, which states: “Defendant’s request is DENIED. Motion was not filed or noticed as a formal Motion.” Defendant appealed.

DISCUSSION

On appeal, defendant argues the trial court abused its discretion when it failed to rule on the merits of the section 1473.7 issue presented by his motion. Before addressing defendant’s argument, we dispose of the People’s claims that denial of the motion is not an appealable order and that this appeal should be dismissed as moot.

1. Appealability
2.
The People posit that, because the court did not decide the motion on its merits, the order is not final and, therefore, not appealable because there continue to be unresolved issues between the parties. We disagree.

Subdivision (f) of section 1473.7 provides in relevant part that an order denying a motion pursuant to that statute is appealable as an order after judgment affecting the substantial rights of a party. Accordingly, a summary denial of a section 1473.7 motion to vacate a conviction is an appealable order. (People v. Fryhaat (2019) 35 Cal.App.5th 969, 973 (Fryhaat).)

2. Mootness

The People also argue this appeal should be dismissed as moot on the theory that defendant can “simply correct the technical deficiencies in his pleadings,” which the court did not identify, and file another motion.

A case becomes moot when a court’s ruling would be without practical effect or will not provide the appellant effective relief. (People v. Dunley (2016) 247 Cal.App.4th 1438, 1445.) Here, however, the case is not moot because this court is able to provide defendant with practical and effective relief. (Fryhaat, supra, 35 Cal.App.5th at p. 984.)

3. The court abused its discretion when it failed to conduct a hearing on defendant’s petition
4.
On appeal, defendant argues the trial court abused its discretion and violated his due process rights by failing to rule on the merits of the section 1473.7 issue presented in his motion. We agree.

In relevant part, section 1473.7 authorizes a person who is no longer in criminal custody to move to vacate a conviction or sentence that is legally invalid due to a prejudicial error resulting in damage to the person’s ability to understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of entering a guilty plea. (§ 1473.7, subd. (a)(1) .) Subdivision (d) of section 1473.7 provides, “All motions shall be entitled to a hearing.” Here, the trial court denied defendant’s motion without affording a hearing.

To the extent a section 1473.7 motion asserts statutory error or a deprivation of statutory rights, we review denial of it for an abuse of discretion. (People v. Rodriquez (2019) 38 Cal.App.5th 971, 977.) To the extent the denial of the motion implicates the defendant’s due process rights, however, there is a division among appellate courts whether the applicable standard of review is an abuse of discretion or the less deferential de novo standard applicable to a mixed question of fact and law. (Id. at pp. 977-978.) We need not address the issue in this case because, even using the deferential abuse of discretion standard, we find the court erred when it denied defendant’s motion without a hearing.

The analysis of former section 1473.7 by the California Senate Appropriations Committee supports the conclusion that the required hearing is intended to provide the parties an opportunity to present evidence and argument before the court rules on the motion. That Committee anticipated costs for court time associated with “locating the historic record, reviewing the case, setting the case for hearing, allowing for discovery, conducting the hearing, and making a final judgment on the record.” (Sen. Com. on Appropriations, Analysis of Assem. Bill No. 813 (2015-2016 Reg. Sess.) as amended June 22, 2015, p. 1.)

The history of section 1473.7 is in keeping with the general rule that an express provision for a “hearing” on the matters embraced by a statute denotes an opportunity to be heard, that is, for the movant to make his or her case. (In re James Q. (2000) 81 Cal.App.4th 255, 263-264; see People v. Perkins (2016) 244 Cal.App.4th 129, 137 [When a statute does not expressly require the trial court to hold a hearing, it need not provide an opportunity to take evidence or conduct proceedings that compel the parties’ involvement.].)

The People speculate the trial court did not comply with section 1473.7’s hearing requirement because defendant did not designate a time and place for hearing as required by rule 3.1110 of the California Rules of Court and Superior Court of San Bernardino County, Local Rules, rule 520. Even if the record established that as the reason for the court’s summary denial of the motion, its failure to conduct a hearing would nevertheless have been error. The rules cited by the People govern civil actions. They do not apply to a motion authorized by a Penal Code provision that is addressed to, and seeks to vacate a judgment of, the criminal division of the superior court.

Moreover, application of those rules may effectually preclude an immigrant detained by federal authorities from moving to vacate an unlawful criminal conviction. Such a result is contrary to the Legislature’s clear intent that section 1473.7 provide a means for persons no longer in criminal custody and who are facing deportation to challenge an unlawful conviction that will, if not remedied, result in denial of their opportunity to stay in the United States with their families. (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 813 (2015-2016 Reg. Sess.) as amended on June 22, 2015, pp. 4-5.) For example, Superior Court of San Bernardino County, Local Rules, rule 520, requires the moving party to reserve a hearing date with the court clerk prior to noticing a motion and thereafter file the moving papers within five court days of making the reservation. It is not reasonable to presume that a person held in federal immigration detention will have the means and access to telephone the court clerk or the ability to ensure the motion will be handled by the detention facility in a manner to arrive in the clerk’s office quickly enough to be filed on time.

That a person seeking to vacate a conviction pursuant to section 1473.7 may well be in immigration detention, acting without counsel, and unable to contact the court to reserve a hearing date is reflected by adoption of a specified form to file a motion to vacate conviction or sentence. (Judicial Council Forms, form CR-187.) That form, intended for optional use by an attorney or those acting without counsel, sets forth instructions for its completion. The instructions explain the completed document is to be filed with the sentencing court and served on the prosecuting attorney. The form does not require the moving party to contact the court for a hearing date. Instead, the box on the first page of the form where the date, time, and department for the hearing is to be filled in is marked, “FOR COURT USE ONLY,” which clearly indicates that it is the court clerk, and not the moving party, who will supply that information on the front of the form and notify the parties when the motion will be heard.

The People also posit the motion was defective because it referred to more than one section of the Penal Code. While we agree the document is not a model of pleading clarity, it leaves no doubt, as the People acknowledge, that defendant is seeking to vacate his conviction on the grounds he was not properly advised by court or counsel of the adverse immigration consequences of his guilty plea pursuant to sections 1016.5 and 1473.7.

Here, defendant filed a motion seeking vacation of his criminal conviction. His motion states he did not knowingly and intelligently enter a guilty plea because his counsel failed to advise him of the adverse immigration consequences of that plea, and he supported that contention with an affidavit. He served a copy of the motion on the office of the district attorney. Accordingly, the court was required to conduct a hearing even if the motion or the notice of it was lacking in formality. (§ 1473.7, subd. (d); see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1365 [court should avoid treating a curable defect as a basis for crippling a litigant’s ability to present his or her case.].)

DISPOSITION

The order denying defendant’s section 1473.7 motion is reversed. The matter is remanded with instructions to consider appointing counsel for defendant if appropriate and to consider the motion on its merits.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MENETREZ

J.