Opinion
G061506,G061509
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. SULEIMAN ABD QAZZA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Minh U. Le, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeals from postjudgment orders of the Superior Court of Orange County Nos. 94NF1307 & 00CF2922, Michael J. Cassidy, Judge. The postjudgment order in case number 94NF1307 is reversed and the matter remanded with directions. The postjudgment order in case number 00CF2922 is affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Minh U. Le, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
In this consolidated appeal, Suleiman Abd Qazza appeals from postjudgment orders in two cases. He appeals from an order denying his motion to vacate his assault with a deadly weapon conviction under Penal Code section 1473.7, subdivision (a)(1), in superior court case number 94NF1307 (appellate case No. G061506). In superior court case number 00CF2922, he appeals from the order denying his motion to vacate his conviction for making a criminal threat, a motion made under section 1473.6 and other provisions (appellate case No. G061509).
All further statutory references are to the Penal Code.
Qazza's appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel also identified potential issues to assist in our independent review. Qazza submitted written arguments on his own behalf for both cases. We exercised our discretion to conduct our own independent review of the appellate record. (See People v. Delgadillo (2022) 14 Cal.5th 216, 232.)
Upon our review of the appellate record, we identified an issue that might, if resolved favorably to Qazza, result in the reversal of the order denying his section 1473.7 motion in case number 94NF1307. The parties were then invited to file supplemental briefs on the issue. Below we address the issues identified by appellate counsel and Qazza in both cases and the issue upon which we requested supplemental briefing.
We conclude the trial court erred by denying Qazza's section 1473.7 motion in case number 94NF1307 on the ground he had not demonstrated prejudicial error. The trial court's finding is inconsistent with a prior ruling by a different judge on Qazza's earlier section 1473.7 motion, upon which the court granted him some relief by finding his sentence was legally invalid, pursuant to the parties' agreement. Moreover, when the trial court found Qazza had not established prejudicial error, it did not have the benefit of our Supreme Court's recent decision in People v. Espinoza (2023) 14 Cal.5th 311 (Espinoza). In Espinoza, the Supreme Court addressed "what constitutes a sufficient showing of prejudicial error within the meaning of section 1473.7." (Id. at p. 317.) With the guidance provided by Espinoza, we conclude Qazza's showing of prejudicial error was sufficient. We direct the trial court, upon remand, to allow Qazza to withdraw his 1994 plea to the charge of assault with a deadly weapon.
Concerning case number 00CF2922, we reject Qazza's claims of error and affirm the court's order denying his motion to vacate this conviction.
I. SUPERIOR COURT CASE NO. 94NF1307
A. Factual and Procedural Background
In 1989, Qazza moved to the United States with his wife, who had been granted lawful permanent resident status. He obtained the same status in 1993. Living in California, Qazza and his wife created a family and a home together. By 1994, they had three children, who were all born in the United States. Qazza was the sole source of financial support for his family and worked full-time as a cab driver. His family worked hard to build a life in this country, and he had no plans to return to live in Jordan, where he was born.
In 1994, Qazza assaulted his brother with a knife, causing great bodily injury. He was charged with one count of an assault with a deadly weapon (§ 245, subd. (a)(1)) and inflicting great bodily injury (§ 12022.7).
In December 1994, Qazza pleaded no contest to the felony charge and admitted the great bodily injury enhancement. On his plea form, he initialed the following advisement: "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." However, Qazza was not informed a conviction for assault with a deadly weapon and a sentence of one year in custody would, not may, result in his deportation and exclusion from the United States. Neither his counsel nor the court explained the immigration consequences of his plea.
When the court was taking Qazza's plea, Qazza's counsel explained to the court Qazza was in the country on a "green card" and wanted to plead no contest rather than guilty because Qazza believed "it might have a favorable impact on any immigration consequences." The court inquired whether anyone had represented to Qazza that pleading no contest would make a difference; both Qazza and his counsel answered in the negative. The court explained a no contest plea was the same as a guilty plea "for all purposes" and proceeded to take Qazza's plea without further discussion of the immigration consequences of his plea and sentence.
The court suspended imposition of Qazza's sentence and placed him on supervised probation for a three-year term with the condition, among others, he serve one year in county jail. Qazza was permitted to serve his county jail sentence through an electronic detention monitoring program.
Qazza continued to work full-time and support his family. In 1995, he and his wife welcomed their fourth child. He did not realize his plea had immigration consequences and he did not anticipate it would trigger his deportation.
The first time Qazza became aware of the immigration consequences of his plea was in 1998 when he reported to probation and was met by officers from the Immigration and Naturalization Service. The federal immigration officers took him into custody and served him with paperwork, which stated he was subject to deportation because his conviction for assault with a deadly weapon with the imposed sentence of one-year confinement constituted an "aggravated felony" as defined in the Immigration and Nationality Act. (8 U.S.C. § 101(a)(43)(F).) Qazza was detained at an immigration facility until he was released on bail.
In 1998, the Immigration and Naturalization Service (INS) was responsible for handling immigration-related issues. It was later reorganized into the Department of Homeland Security, which now includes Immigration and Customs Enforcement (ICE) and United States Citizenship and Immigration Services (USCIS). (See United States v. Garcia-Beltran (9th Cir. 2006) 443 F.3d 1126, 1129, fn. 2 ["The INS is now known as Immigration and Customs Enforcement (ICE)"].)
Qazza hired an immigration attorney, who told him to hire a criminal defense attorney to get his sentence reduced by one day. Qazza was ordered deported in March 1999. He spent the next seven years appealing this decision and trying to stop his deportation.
The criminal defense attorney Qazza hired filed a motion to modify his sentence in 2000, but the motion was denied. Unable to afford further legal services, Qazza represented himself and filed numerous in propria persona motions and petitions for postconviction relief. Between 2005 and 2008, he filed no less than five motions and petitions in the trial court alone, seeking to reduce his sentence and/or vacate his conviction.
In the first petition Qazza filed in propria person, in 2005, he requested the court reduce his sentence from 365 days to 364 days for immigration purposes. The court denied the petition on multiple grounds. The first was based on the court's misunderstanding of Qazza's sentence. The court rejected Qazza's request believing he had not been ordered to serve a year in custody. The court also denied the motion on the grounds it had "been made before and denied with prejudice" and that the court lacked authority to retroactively change his probation terms and reduce his custody time.
Unable to obtain postconviction relief, Qazza lost his immigration appeals and was deported to Jordan in June 2006. His wife and children remained in the United States. Qazza wanted to return to the United States and provide for his family. He continued to research ways to return to the United States, but he found it difficult to find helpful information in Jordan. He relied on the help of his eldest son in the United States.
In 2017, the Legislature provided a new remedy for individuals like Qazza, who are no longer in custody and were unaware of the immigration consequences of their pleas entered years earlier. Section 1473.7 "allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is 'legally invalid due to prejudicial error damaging [their] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.'" (Espinoza, supra, 14 Cal.5th at p. 316.)
In 2020, Qazza's son forwarded to him information on how to file a motion under section 1473.7. Qazza prepared a motion to vacate his conviction or sentence using a Judicial Council of California form and mailed it from Jordan to the superior court, where it was filed in August 2020. On the form, Qazza checked the boxes indicating the motion was made under sections 1016.5 and 1473.7, subdivisions (a)(1) and (a)(2). Qazza alleged his trial counsel told him at the time of his plea there were no immigration consequences because his sentence was less than five years and he was not informed by the court there were immigrations consequences to his plea.
Qazza included with his motion a 2003 notarized letter written by his brother, the victim in the aggravated assault case. In the letter, Qazza's brother stated the offense resulted from a quarrel between them, and at the time of the prosecution, he wanted to drop the charges against his brother because he felt their "family ties were more important." Qazza's brother indicated he had written a letter to the prosecution stating he "had no interest in pursuing the case" against his brother.
The court appointed the public defender's office to represent Qazza in the matter. In December 2020, Qazza's appointed counsel filed a supplement to Qazza's motion to vacate under section 1473.7, subdivision (a)(1), and requested the court vacate Qazza's conviction and sentence and permit him to withdraw his guilty plea. The supplement asserted Qazza did not understand at the time of his 1994 plea he was pleading guilty to an aggravated felony, which would mandate his deportation, and had he been aware of it, he would not have pleaded guilty. Had Qazza been advised and known his plea mandated his deportation, he would have sought alternative dispositions to avoid this result. The supplement discussed Qazza's significant ties to the United States and how his conduct after his plea supported the argument he would not have pleaded no contest to the offense had he been aware of its mandatory immigration consequences. The arguments were supported by Qazza's declaration and other documentary evidence. One document was the immigration court's 1999 decision denying Qazza's motion to terminate the removal proceedings. The immigration court found Qazza was "convicted of a crime of violence with a sentence to incarceration of one year and his conviction therefore [was] an aggravated felony[ ] under Section 101(a)(43)(F) of the [Immigration and Nationality] Act." The decision also explained because Qazza had been convicted of an aggravated felony, he was ineligible for cancellation of removal proceedings.
A hearing on Qazza's motion was held in December 2020. Qazza was not present in court but was represented by his counsel. At the hearing, the prosecutor stated they had previously discussed the case and came "to a mutually agreeable conclusion." The prosecutor explained she would agree to the court reducing Qazza's sentence to anything less than 365 days nunc pro tunc. Qazza's counsel told the court if it vacated Qazza's sentence, she "would withdraw the motion on all other grounds," specifically the contentions under sections "1016.5, 1473.7, subdivision (a)(1) as to the conviction on the plea itself, and then the [subdivision] (a)(2) claim as well." The court asked Qazza's counsel what number she wanted for the sentence. She indicated the desired number was 274 days in jail as to the original sentence imposed at the time of the plea in December 1994. Qazza's counsel requested the court state on the record the original sentence was "vacated as legally invalid." The court found, based on the parties' stipulation, Qazza's original sentence was invalid. The court directed the clerk to make a nunc pro tunc entry showing Qazza was resentenced to 274 days with credit for time served. The court noted sometimes the federal immigration system and state courts "speak different languages," and the court wanted to be sure the wording it used was "going to pass muster." The prosecutor stated if the matter got "kicked back," they could "come back and re-litigate it." The court remarked, "If we need to come back to straighten things out, we'll do it."
The court's minute order for the December 2020 hearing states: "Court finds that the original jail sentence is legally invalid and is vacated pursuant to Penal Code section 1473.7 . [¶] The court orders the defendant resentenced NUNC PRO TUNC to 274 days. [¶] All other motions pursuant to Penal Code sections 1473.7 and 1016.5 are withdrawn. [¶] Nunc Pro Tunc entry(s) made on this date for 12/08/1994." (Italics added.)
In November 2021, Qazza filed, in propria persona, a motion to withdraw his plea and vacate his conviction under sections 1473.7 and 1016.5. The court again appointed the public defender's office to represent Qazza in the postconviction matter. In April 2022, Qazza's appointed counsel filed a supplement to Qazza's motion under section 1473.7. The supplement referred to Qazza's 2020 motion and supplement and explained after the court granted the prior motion and vacated Qazza's sentence, his counsel withdrew the request to vacate his conviction. The supplement stated Qazza had since suffered a different immigration consequence based on his aggravated assault conviction when he sought to return to the United States. Qazza's visa application as a returning resident to the United States had been denied because any felony conviction for assault with a deadly weapon bars admission to the United States. The supplement explained: "While Mr. Qazza could only be deported from the U.S. for a felony violation of Penal Code section 245(a)(1) if the Court imposed a sentence of one (1) year confinement or more (an 'aggravated felony'), [Immigration and Nationality Act] section 212(a)(2)(A)(i)(I) mandates that he be denied admission to the U.S. if convicted of any 'crime involving moral turpitude' ('CIMT') where it is merely possible for the noncitizen to be sentenced to at least one (1) year of confinement."
Although Qazza's motion originally referenced section 1018, the court later granted his counsel's motion to amend the motion to refer to section 1016.5.
In June 2022, a hearing was held on Qazza's motion, before a different judge than the one who presided over his 2020 motion. Qazza appeared via Webex and was represented by counsel at the hearing. Both parties submitted the matter without additional evidence or argument. The court denied Qazza's motion under section 1016.5 on the ground it had been previously denied and his motion under section 1473.7 on the ground he did not meet his burden of establishing prejudicial error.
Qazza appealed from the court's order. Qazza's appointed appellate counsel filed an opening brief pursuant to Wende and Anders, requesting we conduct an independent review of the appellate record and directing our attention to the possible issue of "whether the trial court erred by denying [Qazza's] motion to vacate his no contest pleas." Advised of his right to file a written argument on his own behalf, Qazza submitted a supplemental brief. In it, he requested his conviction for assault with a deadly weapon be vacated under section 1473.7.
After conducting our independent review of the record, we identified an arguable issue concerning the trial court's denial of Qazza's motion to vacate his conviction under section 1473.7. We requested the parties brief the following issue: "The trial court previously found [Qazza's] jail sentence in . . . case number 94NF1307 to be legally invalid and vacated such on December 18, 2020, pursuant to Penal Code section 1473.7. Given the trial court's findings in 2020[,] should the trial court have granted [Qazza's] motion to vacate his plea under Penal Code section 1473.7 on June 24, 2022?" Upon the request of Qazza's appellate counsel, we augmented the record to include Qazza's 2020 motion to vacate and the reporter's transcript of the hearing on that motion. Qazza's counsel subsequently filed a brief arguing Qazza was entitled to relief under section 1473.7 and the trial court's order should be reversed. The Attorney General disagreed, asserting the trial court's actions in 2020 were not rulings under section 1473.7 and did not obligate the second court to grant Qazza's 2021 motion. Alternatively, the Attorney General asserted if the trial court's 2020 finding Qazza's sentence was legally invalid was a ruling under section 1473.7, the basis of the court's finding was not apparent on the record and the matter must be remanded for the court to identify its findings before determining whether it has a collateral effect on Qazza's 2021 motion.
B. Analysis
"To prevail under section 1473.7, a defendant must demonstrate that his conviction is 'legally invalid due to prejudicial error damaging [his or her] 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).) The defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error. '[P]rejudical error . . . means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.'" (Espinoza, supra, 14 Cal.5th at p. 319.) The court must grant the motion to vacate if the defendant establishes entitlement to relief by a preponderance of the evidence (§ 1473.7, subd. (e)(1)), and if the court grants the motion, the court must allow the defendant to withdraw the plea (id., subd. (e)(3)).
We are presented with a situation where in 2020 one superior court judge granted Qazza relief under section 1473.7 as to his sentence, based on the agreement of the parties. But a different superior court judge denied Qazza relief under the same statute in 2022 as to his conviction on the ground Qazza had not met his burden of establishing prejudicial error. Generally, the ruling of one superior court judge in a case may not be overruled, overlooked, or ignored by another superior court judge. (In re Alberto (2002) 102 Cal.App.4th 421, 427-428; see also Greene v. State Farm Fire &Casualty Co. (1990) 224 Cal.App.3d 1583, 1588 [error for second judge to examine facts of the case and issue an order reaching a conclusion opposite to the order previously issued by another judge].)
The Attorney General seeks to avoid this principle by asserting "the trial court never ruled on, much less granted, [Qazza's 2020] motion under section 1473.7" and only found Qazza's sentence was legally invalid based on the parties' stipulation. The Attorney General contends the second judge was therefore not required in 2022 to grant Qazza's motion seeking to vacate his conviction. This contention glosses over important facts: (1) in response to Qazza's 2020 motion, the parties "mutually agree[d]" he was entitled to relief as to his sentence; (2) they asked the court to state on the record that Qazza's original sentence was legally invalid, a basis for relief under section 1473.7, subdivision (a)(1); (3) the court accepted the parties stipulation or agreement and found Qazza's original sentence was invalid; and (4) the court worked with the clerk in drafting the minute order, which states, "Court finds that the original jail sentence is legally invalid and is vacated pursuant to Penal Code section 1473.7."
The Attorney General argues "[t]he court's nunc pro tunc order resentencing [Qazza] to 274 days was not 'a proper exercise of the trial court's authority to issue a nunc pro tunc order.'" We agree. (See People v. Borja (2002) 95 Cal.App.4th 481, 485 ["a nunc pro tunc order is generally limited to correcting clerical errors"].) But this does not undermine the relevance we place upon the court's intention to provide Qazza relief in response to his section 1473.7 motion in 2020.
At the 2020 hearing, the prosecutor did not argue and the court did not find Qazza's showing of prejudicial error was insufficient. Instead, the prosecutor's agreement to granting Qazza relief and the court's decision to provide it indicate they found Qazza's showing of prejudicial error was sufficient. The record reflects the court and the parties were attempting to provide Qazza relief and trying to figure out how to properly word the court's minute order to, as the court stated, "pass muster" with the federal immigration court. At the hearing on Qazza's section 1473.7 motion in 2022, the prosecutor again did not argue Qazza's showing of prejudicial error was insufficient or that he should be denied relief.
Even if the second superior court judge was not bound by the first superior court judge's findings, the second superior court judge erred by finding Qazza had not made a sufficient showing of prejudicial error. "To establish prejudicial error, a defendant must demonstrate a 'reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences' [citation] and must corroborate any assertions with '"'objective evidence'"' [citation]." (Espinoza, supra, 14 Cal.5th at p. 316.) "To determine whether there is a reasonable probability a defendant would have rejected a plea offer if he had understood its immigration consequences, courts must 'consider the totality of the circumstances.' [Citation.] 'Factors particularly relevant to this inquiry include the defendant's ties to the United States, the importance the defendant placed on avoiding deportation, the defendant's priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.' [Citations.] Also relevant are the defendant's probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. [Citation.] These factors are not exhaustive, and no single type of evidence is a prerequisite to relief." (Id. at pp. 320-321.)
"A defendant must provide '"'objective evidence'"' to corroborate factual assertions. [Citation.] Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." (Espinoza, supra, 14 Cal.5th at p. 321.)
"We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences. [Citation.] '"[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law."'" (Espinoza, supra, 14 Cal.5th at p. 319.) Where, as here, "the trial court's findings 'derive entirely from written declarations and other documents,' the trial court and the reviewing court '"are in the same position,"' and no deference is owed [to the trial court's factual determinations]. [Citation.] Because the trial court here conducted no evidentiary hearing, there is no basis for deference, and 'it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.'" (Id. at pp. 319-320.)
Upon independent review, we conclude Qazza presented objective evidence demonstrating, under the totality of the circumstances, a reasonable probability he would not have pleaded no contest to the charge of assault with a deadly weapon if he had understood the immigration consequences of his plea. Qazza supported his section 1473.7 motion with his declaration and documentary evidence showing his ties to the United States, which the California Supreme Court has identified as "an important factor in evaluating prejudicial error under section 1473.7 because [community ties] shed light on a defendant's immigration priorities." (Espinoza, supra, 14 Cal.5th at p. 321.) At the time of his plea, Qazza had obtained lawful permanent resident status in the United States. He was married and had four children who were born in the United States and were therefore citizens of this country. Qazza had a full-time job as a cab driver and was the sole financial support for his family. His family was building a life in this country, and he had no plans to return to Jordan to live. His older brother also lived in the United States. Qazza's community ties provide compelling evidence to support of a finding of prejudicial error. (See Espinoza, supra, 14 Cal.5th at p. 322 [compelling evidence of prejudice where defendant came to U.S. at age 13; his wife and five children were citizens; his parents and siblings lived in the U.S.; and he was the financial provider for his family]; People v. Mejia (2019) 36 Cal.App.5th 859, 872 [compelling evidence of prejudice where defendant lived in the U.S. since he was 14 years old; his mother and siblings lived in the U.S.; and he had a wife and infant at the time of his plea].) Qazza's ties to the United States "weigh in favor of finding that he would have considered immigration consequences to be of paramount concern in deciding whether to accept a plea agreement." (Espinoza, supra, 14 Cal.5th at p. 322.)
Qazza's comments at his plea hearing show he was concerned about the potential immigration consequences of his plea. He wanted to plead no contest rather than guilty, believing this might have a favorable impact on any immigration consequences.
Qazza's relentless pursuit for relief after he received notice from federal immigration authorities that he was subject to removal based on his assault conviction and sentence is also strong evidence he would have rejected the plea had he correctly understood its actual immigration consequences. Qazza spent years fighting his deportation and filed numerous requests for postconviction relief. Even after he was deported to Jordan, he continued to seek relief so he could return to the United States, where his children were growing up and going to school. After he obtained relief as to his sentence, he filed a second motion under section 1473.7 when he learned the conviction itself barred him from re-entering the United States. His efforts illuminate the importance he has consistently placed on being in this country and "how likely it is that-properly advised-he would have prioritized a resolution of his case allowing him to stay in the country." (People v. Vivar (2021) 11 Cal.5th 510, 522.)
Also weighing in Qazza's favor is consideration of whether an alternative immigration-neutral disposition was possible at the time of his plea. "Factors relevant to this inquiry include the defendant's criminal record, the strength of the prosecution's case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney's charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences." (Espinoza, supra, 14 Cal.5th at p. 323.) At the time of his plea, Qazza had no prior criminal history. "This fact is relevant because a defendant without an extensive criminal record may persuasively contend that the prosecutor might have been willing to offer an alternative plea without immigration consequences." (Id. at p. 324.) The facts underlying his conviction involved a quarrel between brothers, and Qazza's brother, the victim, wrote to the prosecutor, at some point, stating he did not want to pursue the case against his brother and wanted to drop the charges. If Qazza had meaningfully understood the mandatory immigration consequences of his plea (permanent deportation) versus the potential risks and rewards of going to trial, it is reasonably probable he would not have pleaded no contest to the assault charge. (See People v. Mejia, supra, 36 Cal.App.5th at p. 873 [where defendant had no criminal record and crime was unsophisticated, it was reasonably probable he would not have pleaded guilty had he understood the immigration consequences of his plea].)
Furthermore, in the supplement to Qazza's 2020 motion, his counsel identified an immigration-safe alternative charge. Qazza's counsel explained a conviction for possession of a concealed dirk or dagger (§ 21310) would not have been an aggravated felony for immigration purposes and would not have resulted in Qazza's permanent deportation. There is no indication a plea to such a charge was offered to Qazza in 1994, but it is reasonably probable he would have pleaded to this charge had it been.
Qazza demonstrated by a preponderance of the evidence a reasonable probability he would have rejected the plea to the offense of assault with a deadly weapon if he had correctly understood its actual immigration consequences. Thus, he established prejudicial error within the meaning of section 1473.7, subdivision (a)(1), and the trial court should have granted his 2021 motion to vacate his conviction and permitted him to withdraw his plea. (§ 1473.7, subd. (e); Espinoza, supra, 14 Cal.5th at pp. 319321.)
II. SUPERIOR COURT CASE NO. 00CF2922
In October 2001, a jury found Qazza guilty of two counts of making criminal threats to two deputy probation officers. (§ 422.) The court found Qazza had previously suffered a conviction for assault with a deadly weapon and the conviction qualified as a "strike" (§§ 667, subds. (d), (e)(1) &1170.12, subds. (b), (c)(1)) and a prior serious felony (§ 667, subd. (a)). The court granted Qazza's motion for a new trial as to the second conviction for making a criminal threat (count 2) and granted the prosecution's motion to dismiss the count. In December 2001, the court sentenced Qazza to seven years in prison.
In 2005, Qazza filed petitions for writs of habeas corpus and coram nobis in the superior court, both of which were denied. In February 2021, Qazza filed a motion to vacate his conviction under section 1473.7. The court denied the motion on the ground it was not supported by sufficient evidence. Qazza appealed, and a panel of this court affirmed the denial on appeal. (People v. Qazza (Nov. 23, 2021, G060307) [nonpub. opn.].) In June 2021, Qazza filed a motion for relief due to discrimination under section 745. After the court denied the motion, Qazza appealed. The appeal was dismissed as an appeal from a nonappealable order. (People v. Qazza (Nov. 10, 2021, G060777) [nonpub. order].)
This appeal concerns Qazza's in propria persona motion filed in April 2022, seeking to vacate his conviction under sections 1473.6, subdivision (a), 134, 236, and 1538.5. The court denied the motion at a hearing in June 2022. The court denied Qazza's claim under section 1473.6 on the ground no new evidence had been presented. As for Qazza's citations to sections 134 and 236, the court stated these sections refer to substantive offenses and were not proper grounds for the motion. The court also indicated Qazza's allegations concerning warrantless searches and seizure were not proper grounds for postconviction relief.
Qazza appealed from the denial of his motion. His appointed appellate counsel filed an opening brief pursuant to Wende and Anders, requesting we conduct an independent review of the appellate record. Appellate counsel identified a possible issue for our consideration-"whether the trial court erred by denying [Qazza's] petition to vacate his conviction under section 1473.6." Qazza submitted a supplemental brief on his own behalf. His supplemental brief, for the most part, reiterates the arguments he made in his motion in the trial court. After reviewing Qazza's brief and the appellate record, we have not discovered any arguable issues for reversal on appeal.
The trial court's order denying Qazza's motion to vacate his conviction was proper. Section 1473.6 allows a person no longer imprisoned or restrained to file a motion to vacate a judgment based on "any of the following reasons: (1) Newly discovered evidence of fraud by a government official that completely undermines the prosecution's case, is conclusive, and points unerringly to his or her innocence. [¶] (2) Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment. [¶] (3) Newly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment. . . ." (Id., subd. (a)(1)-(3).) The statute defines "'newly discovered evidence' [as] evidence that could not have been discovered with reasonable diligence prior to judgment." (Id., subd. (b).)
In his motion, Qazza asserted numerous instances of governmental misconduct. He alleged false reports and testimony by the deputy probation officer and two police detectives and that they prepared false evidence and concealed evidence. However, his allegations concerned reports prepared in his case in 2000, prior to his trial, and testimony at his trial. He failed to demonstrate this is newly discovered evidence of fraud, false testimony, or misconduct that was substantially probative of his guilty, as required for relief under section 1473.6.
Qazza cited code sections for substantive offenses in his allegations government officials were guilty of misconduct involving the evidence at his trial: section 134 (preparing false evidence) and section 135 (destroying or concealing evidence). He also asserted he was falsely imprisoned in the Orange County jail on an immigration hold while awaiting trial and this was a violation of section 236, which defines the criminal offense of false imprisonment. Qazza's allegations do not establish entitlement to postconviction relief. Qazza's allegation the police unlawfully seized him, searched his car and home without a warrant, which he alleged was a violation of section 1538.5, is not a proper ground for postconviction relief.
We have examined the entire record before us and the issues identified by Qazza and his appointed appellate counsel. No arguable issues exist as to the denial of Qazza's motion to vacate in this case. (People v. Kelly (2006) 40 Cal.4th 106, 110; Wende, supra, 25 Cal.3d at p. 441.) Accordingly, we affirm the trial court's order.
DISPOSITION
In case number 94NF1307, the court's order denying Qazza's motion to vacate his conviction under section 1473.7, subdivision (a)(1) is vacated, and the matter is remanded to the trial court with directions to allow Qazza to withdraw his 1994 plea to the charge of assault with a deadly weapon. The court's order denying Qazza's motion to vacate his conviction in case number 00CF2922 is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., GOETHALS, J.