Filed 10/9/20 P. v. Prasad CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E073921 v. (Super.Ct.No. RIF124986) DHARMENDRA PRASAD, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent. 1 In 2005, Dharmendra Prasad pleaded guilty to possessing cocaine in exchange for probation. Two years later he admitted violating the terms, and the court revoked his probation. The failure to complete probation successfully exposed him to deportation. (See Estrada v. Holder (9th Cir. 2009) 560 F.3d 1039, 1040-1041.) In 2019, while in Immigrations and Customs Enforcement (ICE) custody, Prasad filed a motion under Penal Code sections 1016.5 and 1473.7 seeking to set aside his guilty plea because he wasn’t aware of the immigration consequences of his guilty plea. (Unlabeled statutory citations refer to the Penal Code.) The trial court held a hearing at which Prasad wasn’t present and without first appointing him counsel. The court denied the motion because Prasad’s plea agreement warned him of the immigration consequences of the plea. Prasad argues the court abused its discretion by holding the hearing and denying his motion in his absence and without first appointing him counsel. The People concede the error and agree we should remand for a new hearing. We agree, reverse the order, and remand to allow the trial court to appoint counsel and hold an evidentiary hearing on Prasad’s claims. I FACTS On July 19, 2005, the Riverside County District Attorney charged Prasad with possessing cocaine (Health and Saf. Code, § 11350, subd. (a)) and driving with a suspended license. (Veh. Code, § 14601, subd. (a).) They also alleged he had a prior 2 prison term conviction. On December 15, 2005, he pleaded guilty to possessing cocaine and admitted he had a prior prison term conviction. In exchange for his plea, he received 36 months’ probation under Proposition 36. The court dismissed the charge of driving without a license in the interest of justice. Sometime before October 2007, Prasad represented himself in a trial, lost, was convicted of a felony, and was sentenced to two years in prison. In October 2007, Prasad admitted to violating the terms of his probation, and the court terminated his probation. Years later, in September 2019, Prasad moved to vacate his conviction under sections 1016.5 and 1473.7. He claimed his counsel provided ineffective ...
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