Filed 11/15/22 P. v. Ayala CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A163778 v. HERBERTH NOEL AYALA, (San Mateo County Super. Ct. No. SC068457A) Defendant and Appellant. In 2009, defendant Herberth Ayala, a citizen of El Salvador, entered a plea of no contest to one count of assault with a deadly weapon and was sentenced to three years of probation. Ayala was later deported, reentered the United States without permission, and was charged with illegal reentry in federal court. In 2021, Ayala filed a motion to withdraw his 2009 plea under Penal Code section 1473.7,1 arguing that he did not understand his plea’s immigration consequence and would not have entered it if he had. In particular, he alleged that he had been unable to obtain a U-Visa because of his 2009 conviction and that his sentence had been enhanced in his federal reentry case on the basis of that conviction. The trial court denied the motion, concluding that it was untimely, and that Ayala had failed to establish either that he did not understand the immigration consequences of 1 Further undesignated statutory references are to the Penal Code. 1 his plea or that had he understood those consequences, he would not have entered the plea. We affirm. BACKGROUND Ayala entered the United States in 1994 and was granted asylum in 1995. However, because of misdemeanor convictions he suffered in 1997 and 2005, his asylum status was rescinded and he was ordered removed by an immigration judge on February 5, 2007. He appealed that removal order to the Board of Immigration Appeals, which upheld it on April 18, 2008. Ayala appealed that decision to the Ninth Circuit Court of Appeals. On December 20, 2008, while his Ninth Circuit appeal was pending, Ayala was involved in a fight outside a bar, during which he picked up a brick and threw it, striking one victim in the face and another in the shoulder. When Ayala was subsequently arrested, he was found in possession of 0.20 grams of cocaine. On April 24, 2009, the San Mateo County District Attorney filed an information charging Ayala with two counts of assault with a deadly weapon—a brick—and/or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (counts 1 and 2) and one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 3). The information further alleged that counts 1 and 2 were serious felonies within the meaning of section 1192.7, subdivision (c)(23). On June 29, Ayala entered a plea of no contest to count 2 and admitted that it constituted a …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals