Filed 1/13/21 P. v. Enciso CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074103 v. (Super.Ct.No. INF067181) ISAIAS ENCISO, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Burke Strunsky, Judge. Reversed with directions. Rex Adam Williams, 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, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent. 1 INTRODUCTION Defendant and appellant Isaias Enciso appeals from a postjudgment order denying his motion under Penal Code1 section 1473.7 to vacate his 2009 conviction for felony embezzlement. (§ 503.) A trial court summarily denied the motion, finding that defendant was automatically disqualified from relief because he was still in custody. On appeal, defendant argues the court erred by summarily denying his motion and asks that we reverse and remand with instructions that the trial court appoint counsel to represent him, hold a hearing, and consider the motion on the merits. The People agree that a remand for a hearing on the merits is required but contend that the court must find defendant alleged a prima facie case for relief before appointing counsel. We reverse the trial court’s order and remand the matter with directions to appoint counsel and hear the motion on the merits. PROCEDURAL BACKGROUND On October 14, 2009, defendant pled guilty to felony embezzlement (§ 503) pursuant to a plea agreement. In exchange, he was placed on formal probation for three years under specified conditions. On or about August 12, 2019, defendant filed an in propria persona motion to vacate his conviction, asserting that his attorney failed to advise him that he would be deported as a consequence of his plea and that, although the court attempted to read the immigration consequences to him, it failed to provide an interpreter, even though there 1 All further statutory references will be to the Penal Code unless otherwise noted. 2 was an obvious language barrier. He contended that he would have never pled guilty had he known the possibility of being deported and asserted that he was currently in removal proceedings. He stated that he was detained at the United States Immigration and Customs Enforcement (ICE) facility in Adelanto, California, and attached a letter addressed to him there as proof of custody. Defendant requested the court to make its ruling on the motion in his absence since he was detained. He also stated he was unable to afford an attorney. On September 11, 2019, the trial court held a hearing on defendant’s motion. ...
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