Opinion
H050245
05-06-2024
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO PEREZ VILLEGAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1642353
LIE, J.The superior court granted defendant Eduardo Perez Villegas's motion under Penal Code section 1473.7 to vacate his conviction and sentence and to withdraw his no contest plea. Although the grant or denial of such a motion is "[a]n order . . . appealable under subdivision (b) of [s]ection 1237 as an order after judgment affecting the substantial rights of a party," no party appeals that ruling. (§ 1473.7, subd. (f).)
Undesignated statutory references are to the Penal Code.
The trial court denied Villegas's subsequent motion to dismiss the complaint on the theory that the grant of his motion under section 1473.7 entitled him to that further relief. We treat Villegas's appeal from that ruling as a petition for writ of mandate. Because Villegas secured section 1473.7's sole remedy-vacatur of the judgment and withdrawal of his no contest plea-we deny the petition.
I. BACKGROUND
In 2016, the Santa Clara County District Attorney filed a felony complaint alleging that Villegas made criminal threats in violation of section 422, with an enhancement for the use of a knife under section 12022, subdivision (b)(1). By agreement, Villegas pleaded no contest to the section 422 violation and the prosecution dismissed the weapon enhancement. The court placed Villegas on formal probation for three years with a 60-day jail sentence completed through weekend work.
Five years later, Villegas moved to withdraw his guilty plea as "legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence" within the meaning of section 1473.7, subdivision (a)(1). After an evidentiary hearing and argument, the court announced its decision to grant the motion and allow Villegas to withdraw his plea. (See § 1473.7, subd. (e)(3).)
It was then that Villegas orally moved to dismiss the charges, arguing that dismissal "is required once a [section] 1473.7 motion is granted." In the alternative, Villegas invited the court to dismiss the charges in the interest of justice under section 1385. The court denied the motion to dismiss and reinstated the original complaint. Villegas timely appealed.
II. DISCUSSION
We follow People v. Vaca (2023) 89 Cal.App.5th 1113 (Vaca) in reading the plain language of section 1473.7 as limiting relief under that provision to relief from the judgment, not from prosecution. Villegas's challenge to the order denying his request for dismissal under that statute can garner him no relief.
A. Appealability and Availability of Mandamus Relief
The Attorney General contends that we should dismiss Villegas's appeal without reaching the merits but acknowledges Villegas's right to challenge the denial of his motion to dismiss by petition for writ of mandate. Because the issue of appealability was less than "clear in advance" and the substantive merits have "been thoroughly briefed and argued," it would be"' "unnecessarily dilatory and circuitous" '" to "dismiss the appeal rather than exercising our power to reach the merits through a mandate proceeding." (Olson v. Cory (1983) 35 Cal.3d 390, 401; see also Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221-1222.) And because appealability here turns in part on interpretation of section 1473.7, the parties' dispute on the merits forms the starting premise to the Attorney General's appealability argument. We assume without deciding that the ruling is not appealable and treat Villegas's appeal as a petition for writ of mandate.
B. Section 1473.7's Plain Language and Purpose
A person who is no longer in criminal custody, being ineligible for habeas corpus relief, may file "a motion to vacate a conviction or sentence" (§ 1473.7, subd. (a)) on enumerated grounds including "prejudicial error damaging the moving party's ability to meaningfully understand . . . the actual or potential adverse immigration consequences" of the conviction (§ 1473.7, subd. (a)(1)). If the court under this provision vacates a conviction or sentence obtained by a plea of guilty or nolo contendere, the court "shall allow the moving party to withdraw the plea." (§ 1473.7, subd. (e)(3).) Section 1473.7 does not require the dismissal of the complaint. (Vaca, supra, 89 Cal.App.5th at p. 1122.) As both the trial court and the Vaca court observed, nothing in the statute mentions dismissal of the complaint. (Id. at p. 1118.) The interpretation urged here by Villegas would thus engraft onto the statute a remedy the Legislature did not provide. (Ibid.)
Beyond exceeding the statutory language, Villegas's interpretation would exceed the statute's purpose, which is to provide a mechanism for individuals who are no longer eligible for traditional habeas corpus relief to still seek commensurate relief-"an opportunity to withdraw the plea and proceed to trial." (Vaca, supra, 89 Cal.App.5th at p. 1121.)
The Legislature in enacting section 1473.7"' "fill[ed] a gap in California criminal procedure"' [citation], and provided an out-of-custody defendant a means to challenge a conviction due to error affecting his or her ability to meaningfully understand the actual or potential immigration consequences of the conviction." (Vaca, supra, 89 Cal.App.5th at p. 1121.) Before section 1473.7, "in-custody defendants could pursue habeas corpus relief for counsel's failure to inform them of the immigration consequences of a plea, but this relief was not available to an out-of-custody defendant." (Vaca, supra, 89 Cal.App.5th at p. 1121; see also People v. Villa (2009) 45 Cal.4th 1063, 1066, 1072 [holding that federal immigration detention did not satisfy custody requirement for a state court writ of habeas corpus when the detainee was no longer in actual or constructive state custody as a result of the conviction].) Nor could out-of-custody defendants petition for writ of error coram nobis on this ground, which is functionally indistinguishable from" 'a claim of ineffective assistance of counsel, . . . not reviewable by way of writ of coram nobis.'" (Vaca, at p. 1122, fn. 6; People v. Fryhaat (2019) 35 Cal.App.5th 969, 981.)
Whether the conviction was obtained by trial or by plea, the statute allows the successful moving defendant to unwind those decisions and relitigate the case with knowledge of the immigration consequences of a conviction. (Vaca, supra, 89 Cal.App.5th at p. 1121.) This "opportunity to withdraw the plea and proceed to trial" parallels "[t]he relief afforded to a successful habeas corpus petitioner claiming ineffective assistance due to failure to advise of a plea's immigration consequences" (ibid.) and to "a successful petitioner for a writ of error coram nobis" (id. at p. 1122, fn. 6). The harm the Legislature sought to remedy by section 1473.7, subdivision (a)(1) was not the potential for conviction or sentence or for adverse immigration consequences (as Villegas would have it), but the deficiency of "clear and accurate advice" integral to "a noncitizen defendant's calculus in responding to certain criminal charges." (People v. Vivar (2021) 11 Cal.5th 510, 516.) To adopt Villegas's constructive amendment of the statute to mandate dismissal would be "at odds with the legislative intent." (Vaca, at p. 1122.) This is not to say that dismissal will never be warranted under another law when a defendant is entitled to relief under section 1473.7, subdivision (a) or that the facts warranting section 1473.7 relief could not inform the case for dismissal. But we agree with Vaca that section 1473.7 is not itself a dismissal provision.
Ignoring Vaca in his opening brief, Villegas in his reply brief offers sundry arguments for rejecting its reading of the statute's unambiguous language. As we explain, each lacks merit.
1. Construction with Section 1016.5
Villegas contends that section 1473.7 should be interpreted to provide greater relief than merely withdrawal of a plea because unlike section 1016.5, it does not specify that the successful movant shall be permitted to "enter a plea of not guilty." (§ 1016.5, subd. (b) [providing that "the court . . . shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty" upon a defendant's motion showing that the court failed to issue the advisement prescribed by § 1016.5, subd. (a)].) To Villegas, the Legislature's express provision in section 1016.5 for a plea of not guilty signals its assent to reinstatement of the charges; under his logic, the omission of the same provision in section 1473.7 signals the Legislature's intent to require dismissal of the charges.
In context, this omission is immaterial: Villegas's right to enter a plea of not guilty (or to demur, or to plead not guilty by reason of insanity, or to respond to the charge in any other way) is implicit in his right to withdraw his no contest plea. The more informative statutory counterpoint is section 1203.4's provision for dismissal upon successful completion of probation. Subject to prerequisites not relevant here, section 1203.4, subd. (a)(1) provides, "[T]he defendant shall . . . be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; . . . and . . . the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities ...." Given the usage here, we are unable to read "enter a plea of not guilty" as precluding dismissal when used or requiring dismissal when omitted. The omission from section 1473.7 that matters is the omission of any indication-comparable to section 1203.4's "shall thereupon dismiss"-that the Legislature intended to mandate a dismissal remedy. Had the Legislature intended to require dismissal, it would have done so explicitly.
2. Conflict with Section 1192.5
Villegas argues that in enacting section 1473.7, "the Legislature exercised its own authority to change the terms of a plea bargain when the court vacates a conviction and permits a defendant to withdraw the plea." In his view, limiting section 1473.7 relief to vacatur of the conviction and sentence and withdrawal of a defendant's plea would unfairly relieve the People of their obligations under the plea agreement when the defendant has performed by completing service of agreed-upon sentencing terms. Alternatively, he argues that permitting the resumption of prosecution of previously dismissed counts or enhancements would allow the trial court to alter the terms of the plea agreement in violation of section 1192.5. More than failing to explain how the integrity of a plea agreement requires the dismissal of counts whether agreed upon or not, these arguments misapprehend both the nature of plea bargaining generally, the terms of the plea agreement here, as well as the relevant statutes.
A plea bargain is by definition a quid pro quo "whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge . . . or to the sentencing of the defendant." (§ 1192.7, subd. (b).) The defendant's performance under the agreement is thus the plea-the acceptance of criminal liability for the agreed offense-as distinct from the independently enforceable submission to the sentencing terms the prosecution agreed to. (See People v. Cruz (1988) 44 Cal.3d 1247, 1253 [rejecting the People's contention that defendant's postplea, prejudgment flight breached the plea bargain].) It is Villegas's withdrawal of his plea that repudiates the agreement and excuses the People from performing under the once-agreed terms. "[W]hen a defendant successfully withdraws a plea, the case is generally restored to the position it was in before the parties entered into the plea deal, including the revival of any charges dismissed pursuant to the bargain." (Vaca, supra, 89 Cal.App.5th at p. 1120.)
Villegas contends that the state could have no interest in a retrial to reinstate a vacated conviction where the defendant has already been punished and completed the sentence. But the state may have an interest in the collateral consequences of a conviction on retrial, including the very immigration consequences that are sufficiently significant to warrant relief from the original conviction under section 1473.7.
Villegas objects that an order merely vacating his conviction and sentence under section 1473.7 fails to account for his intervening service of his sentence and therefore fails to restore the status quo ante. But making a successful movant whole is not the point: section 1473.7, after all, contemplates that every moving defendant will have served their sentence. As explained, the purpose of section 1473.7 is to provide those who lacked the sound legal advice necessary to "understand, defend against, or knowingly accept" the collateral immigration consequences of their litigation options (§ 1473.7, subd. (a)(1)) an opportunity to remedy that prejudice by reconsidering those options with the benefit of the advice previously lacking. (Vaca, supra, 89 Cal.App.5th at pp. 1121-1122.)
Asserting that it was not he but section 1473.7 that "change[d] the terms of a plea bargain," Villegas would have us rely on authorities limiting the People's ability to withdraw from a plea agreement when a defendant who does not challenge his conviction seeks the retroactive application of new legislation that ameliorates the sentence. But unlike the authorities Villegas cites, section 1473.7 is a procedural statute, one that enlarges existing means of collaterally challenging an otherwise final conviction; it is not an ameliorative statute that alters the elements of the offense or of the sentencing enhancement, or that lessens the punishment available for either. (Cf. Harris v. Superior Court (2016) 1 Cal.5th 984, 992-993 [effect on plea bargain of Prop. 47's reduction of certain felonies to misdemeanors]; People v. Prudholme (2023) 14 Cal.5th 961, 975-979 (Prudholme) [effect on plea bargain of Assem. Bill No. 1950's lessening of maximum probation term].) Enactment of the statute did not itself render the judgment unsupportable as in People v. Collins (1978) 21 Cal.3d 208, where the decriminalization of the count of conviction required dismissal of the agreed count but reinstatement of dismissed counts capped by the agreed sentence. Instead, the statute provided a mechanism by which a defendant may elect to repudiate a plea agreement by challenging the conviction itself. (Cf. id. at p. 216 [distinguishing legislative repeal of the offense as an "external event[]" and not an attempt to withdraw the plea].)
Villegas's reliance on section 1192.5 is similarly fruitless. After a plea agreement is accepted by the parties and approved by the court, a defendant generally" 'cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.'" (§ 1192.5, subd. (b); Prudholme, supra, 14 Cal.5th at p. 970.) If the court withdraws its approval of the agreement, of course, the defendant may then withdraw the plea. (Ibid.) But when it is the defendant who takes issue with the agreed-upon judgment, Villegas articulates no theory by which the Legislature's knowledge of section 1192.5 meant it intended section 1473.7 to confer on a defendant more than the right to withdraw from the plea. Villegas exercised that right and withdrew. His authorities do not speak to what comes next.
3. Double Jeopardy Protection
Villegas urges us to reject Vaca's plain-language reading of section 1473.7 as offending constitutional prohibitions on double jeopardy. But Villegas misconstrues long-settled double jeopardy jurisprudence." '[T]he Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside . . . because of some error in the proceedings leading to conviction.'" (People v. Santamaria (1994) 8 Cal.4th 903, 910-911, quoting Lockhart v. Nelson (1988) 488 U.S. 33, 38.) In that event, permitting the matter to proceed to trial" 'is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.'" (Santamaria, at p. 911, quoting United States v. Scott (1978) 437 U.S. 82, 91.) With the dismissed section 12022 allegation resurrected by withdrawal of his plea, Villegas fears more severe potential punishment than he has already served, if he should again be convicted. (See People v. Henderson (1963) 60 Cal.2d 482, 495-497; People v. Ali (1967) 66 Cal.2d 277, 281-282.) But "a defendant [who] 'seeks to withdraw a guilty plea or repudiate a plea bargain,'" unlike a defendant who successfully appeals a criminal conviction, is not protected by the California Constitution from the imposition of more severe punishment. (People v. Flores (2022) 77 Cal.App.5th 420, 450, fn. 15; see also Alabama v. Smith (1989) 490 U.S. 794, 795, 799 [holding that "no presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial," absent circumstances showing a" 'reasonable likelihood'" of actual vindictiveness by sentencing authority].) And at this stage of the proceedings, whether the state may seek additional punishment is not before us-we are reviewing the denial of a dismissal order under section 1473.7. Double jeopardy concerns accordingly do not influence our interpretation of section 1473.7.
At bottom, the trial court did not err in denying Villegas's motion to dismiss under section 1473.7 because dismissal is not an available remedy under that statute.
III. DISPOSITION
The appeal is treated as a petition for writ of mandate, and the petition is denied.
WE CONCUR: GROVER, ACTING P. J., BROMBERG, J.