Filed 12/6/22 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D079532 Plaintiff and Respondent, v. (Super. Ct. No. SCS282116) ANGELITA GARCIA DEMONTOYA, Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Maryann D’Addezio Kotler, Judge. Affirmed. Katherine Braner, Chief Deputy Public Defender, Daniela Reali and Troy A Britt, Public Defenders, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent. Penal Code1 section 1473.7 permits withdrawal of a guilty plea when the defendant establishes “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the 1 Statutory references are to the Penal Code unless otherwise specified. actual or potential adverse immigration consequences of a conviction or sentence.” (§ 1473.7, subd. (a)(1).) In 2018, section 1473.7 was amended and became effective January 1, 2019. (Stats. 2018, ch. 825, § 2.) Among other things, the 2018 amendment added the following sentence to the end of subdivision (a)(1): “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1).)2 In the instant matter, Angelita Garcia DeMontoya appeals an order denying a motion under section 1473.7, filed in 2021, in which she sought to withdraw her guilty plea to the charge of assault with a deadly weapon (§ 245, subd. (a)(1)) that was entered in 2016. The superior court denied that motion on the grounds of collateral estoppel. The court found that DeMontoya had filed a section 1473.7 motion in 2018 and that motion, which was denied, involved identical issues as the 2021 motion. DeMontoya argues that the superior court erred in denying her 2021 motion because the 2018 amendment to section 1473.7 created a new right, which did not exist when she filed her first motion in 2018. However, DeMontoya overlooks the fact she appealed the order denying her 2018 motion, and this court affirmed that order in early 2019, considering the impact of the 2018 amendment on DeMontoya’s claims and independently concluding that DeMontoya’s first motion failed even under the 2018 amendment. (See People v. DeMontoya (Apr. 24, 2019; D073954 [nonpub. opn.].) DeMontoya did not challenge our conclusion through a petition for rehearing or a petition for review with our high court. 2 Courts have disagreed whether this additional sentence provided a new right or merely clarified the existing statute. (Compare People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067 (Ruiz) [a new right] with People v. Camacho (2019) 32 Cal.App.5th 998, 1006-1008 (Camacho) [a clarification].) 2 As such, whether the 2018 amendment created a new right does not matter for purposes of our analysis here. We specifically considered that amendment during DeMontoya’s appeal of the order denying her 2018 motion. Thus, DeMontoya’s second motion under section 1473.7 does not involve any new rights that were not considered in …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals