Filed 7/24/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, No. A152530 v. RUBEN ANAYA MORALES, (San Mateo County Super. Ct. No. SC050563A) Defendant and Appellant. Appellant Ruben Anaya Morales was convicted of a 2002 drug offense, to which he pleaded no contest. He served his sentence, voluntarily departed the United States and reentered the country. In 2017, while residing in the United States, he filed a motion to vacate this conviction under the newly enacted Penal Code section 1473.71 as a part of his effort to obtain legal status via a “U visa.” Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for a U visa, and that he pleaded no contest in 2002 only as a result of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the United States. Section 1473.7, subdivision (a)(1) authorizes a noncitizen convicted of a crime upon pleading no contest who is now free from custody to prosecute a motion to vacate that conviction for ineffective assistance of counsel when the conviction has caused unforeseen actual or potential adverse immigration consequences. Morales filed exactly such a motion. Nonetheless, the superior court denied his motion without prejudice based on its interpretation of section 1437, subdivision (b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. 1 All statutory references are to the Penal Code unless otherwise stated. 1 Both Morales and the Attorney General contend the court ignored the plain terms of section 1473.7, subdivision (a)(1) and wrongly determined that section 1473.7, subdivision (b) eviscerates the broad authority granted by subdivision (a)(1) and bars a noncitizen from bringing any motion under section 1473.7 until after the entry of a final removal order. We agree. The superior court’s holding is an untenable construction of the statute that is contradicted by the statute’s plain language and its legislative history, and would produce absurd results. Therefore, we reverse the trial court’s decision and remand for further proceedings consistent with this opinion. BACKGROUND In January 2002, the San Mateo County District Attorney charged Morales in an amended information with felony possession for sale of a controlled substance, methamphetamine (Health & Safety Code, § 11378), and the felony transportation, importation, and selling of a controlled substance, also methamphetamine (id., § 11379). Both counts also included weight enhancement allegations. As part of a negotiated disposition, Morales, represented by counsel, entered a no contest plea to possession for sale of a controlled substance. He also admitted the truth of the accompanying weight enhancement allegation, but the court later struck it and dismissed the transportation count. It sentenced Morales to a three-year prison term, with 199 days of credits. Morales served his sentence, voluntarily departed the United States for Mexico in the face ...
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