Summary
In People v. Perez (2021) 67 Cal.App.5th 1008, at page 1016, 282 Cal.Rptr.3d 796, the appellate court discussed the timeliness of a section 1473.7 motion following the 2019 amendments: "First, if ‘the individual filing the motion is no longer in criminal custody’ and the triggering events specified in subparagraphs (A) and (B) of subdivision (b)(2) of section 1473.7 have not yet occurred, the motion must be deemed timely under the mandatory rule in subdivision (b)(1) of section 1473.7.
Summary of this case from People v. GregorOpinion
F080837
08-17-2021
The PEOPLE, Plaintiff and Respondent, v. Jose Adrian PEREZ, Defendant and Appellant.
Law Office of Allen Broslovsky and Allen Broslovsky for Defendant and Appellant. Xavier Becerra, Attorney General, Sacramento, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Columbus, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Defendant and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the Background and parts II. and III. of the Discussion.
Law Office of Allen Broslovsky and Allen Broslovsky for Defendant and Appellant.
Xavier Becerra, Attorney General, Sacramento, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Columbus, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Defendant and Respondent.
FRANSON, Acting P.J.
In December 2019, defendant Jose Adrian Perez filed a motion pursuant to Penal Code section 1473.7 to vacate a 2000 conviction entered after he pled guilty to felony theft. The sole ground raised in the opposition to Perez's motion was its untimeliness. At the hearing on the motion, the superior court stated: "While I think there are a bunch of humanitarian reasons why it should be granted, I have to say the motion is denied." On appeal, the Attorney General contends the court properly denied the motion because (1) it was untimely and (2) Perez did not establish he suffered the "prejudicial error" required by section 1473.7, subdivision (a)(1).
Unlabeled statutory references are to the Penal Code.
The published part of this opinion addresses the meaning of the timeliness provisions set forth in subdivision (b) of section 1473.7, which is a pure question of law and not dependent upon the facts of this case. That subdivision contains a general rule requiring the court to deem the motion timely in certain circumstances. ( § 1473.7, subd. (b)(1).) It also contains a discretionary exception that permits the court to deem the motion untimely if the moving party did not act with reasonable diligence in bringing the motion after specific triggering events. ( § 1473.7, subd. (b)(2).) Thus, the absence of reasonable diligence does not automatically result in the motion being deemed untimely. A superior court has the discretionary authority, after considering the totality of the circumstances, to deem a motion timely even if the moving party did not act with reasonable diligence.
The unpublished portion of this opinion includes our analysis of whether Perez acted with reasonable diligence in filing his motion and our determination that the motion was timely filed. It also includes our analysis of whether Perez demonstrated the existence of an error that was both prejudicial and damaging to his ability to meaningfully understand and accept the immigration consequences of his no contest plea. ( § 1473.7, subd. (a)(1).) Based on our independent review of the cold record in accordance with the principles set forth in People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425 ( Vivar ), we conclude Perez satisfied the requirements of section 1473.7, subdivision (a)(1) and is entitled to relief.
We therefore reverse the order denying the section 1473.7 motion. BACKGROUND
See footnote *, ante .
DISCUSSION
I. INTERPRETATION OF TIMELINESS PROVISIONS
Section 1473.7 permits a person to file a motion to vacate a conviction that is "legally invalid due to a 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 plea of guilty or nolo contendere." ( § 1473.7, subd. (a)(1).) In adopting and amending section 1473.7, the Legislature considered the problems faced by defendants "who were unaware of the immigration consequences posed by a plea entered many years earlier." ( Vivar, supra , 11 Cal.5th at p. 523, 278 Cal.Rptr.3d 2, 485 P.3d 425.) Although such motions "must be timely" ( People v. Perez (2018) 19 Cal.App.5th 818, 826, 228 Cal.Rptr.3d 95 ), they "ordinarily are brought many years after the plea." ( Vivar, supra , 11 Cal.5th at p. 526, 278 Cal.Rptr.3d 2, 485 P.3d 425 [motion brought nearly 16 years after plea was entered].) Whether a particular motion is timely is governed by subdivision (b) of section 1473.7.
A. Initial Timeliness Requirement
The first version of subdivision (b) of section 1473.7 was enacted in 2016, was effective from January 1, 2017, through December 31, 2018, and stated:
"A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following: [¶] (1) The date the moving party 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. [¶] (2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final." (Stats. 2016, ch. 739, § 1, italics added.)
The use of the word "shall" in the phrase "shall be filed with reasonable diligence" plainly indicated a moving party was required to act with reasonable diligence after the later of the two events described in paragraphs (1) and (2) of subdivision (b) of former section 1473.7. Thus, under the first version of section 1473.7, courts were required to deny a motion when the moving party had not acted with reasonable diligence in filing the motion.
B. Current Timeliness Provisions
The current version of subdivision (b) of section 1473.7 was enacted in 2018 and became effective on January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment made substantial changes to the timeliness provisions, which now provide:
"(1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody.
"(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:
"(A) The moving party 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 the denial of an application for an immigration benefit, lawful status, or naturalization.
"(B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate." ( § 1473.7, subd. (b), italics added.)
The amendment relaxed the mandatory rule enacted in 2016 and granted superior courts the discretionary authority to deem a motion timely where the moving party did not act with reasonable diligence after the later of the triggering events.
For convenience, this opinion refers to the events described in subparagraphs (A) and (B) of paragraph (2) of subdivision (b) of section 1473.7 as the "triggering events."
Subdivision (b)(1) of section 1473.7 sets forth a mandatory general rule for the timeliness of motions based on the absence of a meaningful understanding of the immigration consequences of a plea. Its use of the phrase "shall be deemed timely" plainly creates a mandatory rule. "It is a well-settled principle of statutory construction that the word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily construed as mandatory, particularly when both terms are used in the same statute." ( Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443, 261 Cal.Rptr. 574, 777 P.2d 610.) We adopt the ordinary meaning of the word "shall" and conclude the rule established by section 1473.7, subdivision (b)(1) is mandatory. (See People v. Ledesma (1997) 16 Cal.4th 90, 103, 65 Cal.Rptr.2d 610, 939 P.2d 1310 [in ordinary usage, "shall" is mandatory].) The Legislature's findings, which are contained in the uncodified section of the 2018 amendment (Stats. 2018, ch. 825, § 1 ), and other provisions of section 1473.7 do not indicate a contrary legislative intent.
The clause "[e]xcept as provided in paragraph (2)" clearly identifies an exception to the mandatory rule stated in subdivision (b)(1) of section 1473.7. Based on the plain meaning of the text, the mandatory rule is properly characterized as a general rule subject to one exception. Next, we consider the nature and scope of the exception. Subdivision (b)(2) of section 1473.7 uses the phrase "may be deemed untimely." "[I]n delineating the trial court's authority by use of the word ‘may,’ the statutory language itself indicates the trial court has broad discretion." ( People v. Moine (2021) 62 Cal.App.5th 440, 448, 276 Cal.Rptr.3d 668.) Thus, applying the ordinary meaning of the word "may," we conclude the exception in subdivision (b)(2) of section 1473.7 grants discretionary authority to the court.
The discretion to deem a motion untimely arises "if it was not filed with reasonable diligence after the later of the later of the" triggering events. ( § 1473.7, subd. (a)(2).) According to the definition of "if" in one legal dictionary, "[i]n deeds and wills, this word, as a rule, implies a condition precedent, unless it is controlled by other words." (Black's Law Dict. (6th ed. 1990) p. 746; see Shackley v. Homer (1910) 87 Neb. 146, 149–150, 127 N.W. 145 ["No doubt the general meaning of the word ‘if’ implies a condition precedent, unless it be controlled by other words"].) We conclude this definition of "if" also establishes its ordinary meaning when used by our Legislature in a statute. Applying this ordinary meaning, we conclude the use of the word "if" in subdivision (b)(2) of section 1473.7 indicates the discretionary authority to deem a motion untimely is conditional.
The statutory condition is satisfied when the motion "was not filed with reasonable diligence after the later of the" triggering events. ( § 1473.7, subd. (b)(2).) Only when the condition is satisfied does the court have the discretion to deem a motion untimely. Thus, the lack of reasonable diligence does not automatically require the superior court to deem the motion untimely. Instead, the absence of reasonable diligence subjects the motion to the court's discretionary authority and, in exercising its discretion, the court might deem the motion timely or might deem it untimely. Section 1473.7 does not provide any guidance for exercising that discretion, such as a list of factors that should be weighed by the court. Based on the lack of explicit statutory guidance, we conclude the well-established general rule governing grants of discretion applies. Thus, the "[d]iscretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." ( People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225.) In other words, before exercising its discretionary authority regarding the timeliness of the motion, the court must consider the totality of the circumstances.
C. Summary of Timeliness Principles
Based on the absence of ambiguities in the statutory text and the litigants' decision not to present extrinsic materials relevant to the construction of section 1473.7, we adopt the plain meaning of the language. (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 634, 234 Cal.Rptr.3d 856, 420 P.3d 767 [plain meaning of statute control and resort to extrinsic sources is unnecessary]; see generally, Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1495, 35 Cal.Rptr.3d 596 [use of extrinsic materials to identify latent ambiguity].) We conclude subdivision (b) of section 1473.7 unambiguously establishes the following principles governing the timeliness of a motion to vacate a conviction based on the absence of a meaningful understanding and knowing acceptance of the immigration consequences of a plea.
First, if "the individual filing the motion is no longer in criminal custody" and the triggering events specified in subparagraphs (A) and (B) of subdivision (b)(2) of section 1473.7 have not yet occurred, the motion must be deemed timely under the mandatory rule in subdivision (b)(1) of section 1473.7.
Second, if the triggering events have occurred, the superior court must determine whether the motion was "filed with reasonable diligence after the later of" the triggering events. ( § 1473.7, subd. (b)(2).)
Third, if the superior court determines the moving party acted with reasonable diligence after the later of the triggering events, the motion must be deemed timely under the mandatory rule in subdivision (b)(1) of section 1473.7. In other words, the discretionary exception to deem the motion untimely does not apply.
Fourth, if the superior court determines the moving party did not act with reasonable diligence after the later of the triggering events, the court must exercise its discretionary authority and decide whether to deem the motion untimely. To properly exercise the discretionary authority granted by subdivision (b)(2) of section 1473.7, the court must consider the totality of the circumstances.
See footnote *, ante .
The order denying the section 1473.7 motion is reversed. The matter is remanded and the superior court is directed to grant the motion and vacate the conviction.
WE CONCUR:
SMITH, J.
SNAUFFER, J.