Opinion
B321345
07-25-2023
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW LEEMON, Defendant and Appellant.
Robert G. Berke and Carlo Brooks for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA323802 William C. Ryan, Judge. Affirmed.
Robert G. Berke and Carlo Brooks for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
Matthew Leemon is a United States citizen. He pleaded guilty to a felony sex offense. Years later, Leemon was informed he was unable to sponsor his wife for a family visa due to his conviction. Leemon then moved to vacate his conviction claiming he failed to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of his conviction. The trial court denied his motion. We affirm.
Leemon refers to this person as his fiance and wife interchangeably. To avoid further confusion, we shall refer to this person as his wife.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2007, an amended felony complaint was filed by the Los Angeles County District Attorney's Office charging Leemon with eight counts of possession of child pornography (Pen. Code, § 311.11, subd. (a).)
All further statutory references are to the Penal Code unless otherwise stated.
On December 13, 2007, pursuant to a plea agreement, Leemon pleaded guilty to one count of possession of child pornography, and the remaining counts were dismissed. Prior to his plea, Leemon was advised: "If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." On March 5, 2008, the trial court sentenced Leemon to the upper term of three years in state prison.
On September 11, 2009, Leemon was released from prison and placed on parole for three years. However, due to a parole violation, Leemon was returned to custody to serve the remainder of his term. Leemon was ultimately released from prison on November 10, 2012.
In June 2013, Leemon met his now-wife, a Pakistani national who lived in Pakistan. At some point, Leemon was notified by the United States Citizenship and Immigration Services (USCIS) that the USCIS intended to deny his petition for a family-based visa for his wife due to his prior conviction.
A United States citizen convicted of possession of child pornography is precluded from petitioning for a family-sponsored visa, unless it is determined that the citizen poses no risk to the family member. (8 U.S.C., § 1154(a)(1)(A)(viii)(I); 34 U.S.C. § 20911(7)(G).)
On July 14, 2021, Leemon filed a motion to vacate his conviction on the ground that he "did not meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea," specifically his ability to petition for a family-based visa.(§ 1473.7, subd. (a)(1).) The People filed an opposition and Leemon filed a reply. On March 22, 2022, the trial court denied the motion, finding that "[n]othing in the language of section 1473.7 or the legislative history of the section suggests that it applies to . . . a U.S. citizen for the benefit of a non U.S. citizen." Assuming the statute applied to United States citizens, the court further found Leemon "failed to meet his burden that knowledge of the adverse immigration consequences of his plea would have led him to not acquiesce to such a plea."
In his motion, Leemon stated he made a prior attempt to vacate the conviction by writ of coram nobis on the ground that he was improperly advised on the correct maximum sentence he faced prior to entering his plea. The writ was denied. It does not appear the writ was filed with this court.
Leemon timely appealed.
DISCUSSION
Leemon argues the trial court erred in denying his motion to vacate his conviction. This is a question of statutory interpretation, which we review de novo. (People v. Medina (2018) 24 Cal.App.5th 61, 66.)
Section 1473.7 authorizes "[a] person who is no longer in criminal custody" to file a motion to vacate a conviction or sentence where "[t]he conviction or sentence is 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." (§ 1473.7, subd. (a)(1).) In its ruling, "the only finding that the court is required to make is whether the conviction is 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." (§ 1473.7, subd. (e)(4).)
"Prior to the enactment of section 1473.7, only an individual who was in custody could seek a writ of habeas corpus to challenge a conviction for an offense that had adverse immigration consequences; a person out of custody had no legal means of challenging a conviction on that basis. [Citations.]" (People v. Gregor (2022) 82 Cal.App.5th 147, 161.) Thus, "'the purpose of the legislation was to "fill a gap in California criminal procedure" [citation] by providing a means to challenge a conviction by a person facing possible deportation who is no longer in criminal custody and thus for whom a petition for a writ of habeas corpus is not available.'" (Ibid.) Moreover, the legislative history of section 1473.7 also indicates legislators were not only "'concerned about convictions that rendered noncitizens removable'" but also "'inadmissible.'" (Id. at p. 162.)
Leemon contends the reference to "a person" bringing a motion to vacate a conviction or sentence demonstrates that the statute does not limit its application to non-United States citizens. This contention is without merit. The Legislature intended for "adverse immigration consequences" to only refer "to removal or deportation, exclusion, or the denial of naturalization or lawful status of persons who plead guilty to charges without being advised of these immigration consequences. Each of these immigration consequences concern the defendant's personal immigration status. Conversely, the denial of the ability to sponsor a relative affects the defendant only indirectly because it concerns the immigration status of another person." (People v. Gregor, supra, 82 Cal.App.5th at p. 164.) Thus, a United States citizen would not personally suffer any of these adverse immigration consequences when entering into a guilty plea and therefore would not be entitled to relief under section 1473.7. (See Ibid.)
Leemon asserts the ability to sponsor his wife for a family-based visa is an "immigration benefit." However, any denial of this presumed immigration benefit does not equate to an adverse immigration consequence within the meaning of section 1473.7. (People v. Gregor, supra, 82 Cal.App.5th at p. 158 [denial of the ability to sponsor a relative for a family-based visa does not constitute an adverse immigration consequence].) Leemon has cited no authority to the contrary.
Because Leemon cannot demonstrate he had suffered an adverse immigration consequence under section 1473.7, we do not address whether he established prejudice. (People v. Abdelsalam (2022) 73 Cal.App.5th 654, 661 ["a person seeking relief pursuant to section 1473.7 need only demonstrate prejudice that he [or she] would not have entered the plea had he [or she] known about the [adverse] immigration consequences"].)
We note that Leemon spent a large portion of his brief arguing that he was not properly advised on the potential maximum sentence prior to entering into his guilty plea. However, Leemon fails to articulate, as required by section 1473.7, that this alleged error affected his ability to understand the adverse immigration consequences of his plea. Moreover, a claim solely based on any misrepresentation of his maximum exposure is not properly raised in a section 1473.7 motion.
DISPOSITION
The order is affirmed.
WE CONCUR: CURREY, P. J., MORI, J.