Filed 3/9/22 P. v. Angeles CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F079714 Plaintiff and Respondent, (Tulare Super. Ct. v. No. TCM074428-01) MANUEL SILVA ANGELES, OPINION Defendant and Appellant. APPEAL from an order of the Superior Court of Tulare County. Jennifer Shirk, Judge. Lisa Bertolino, Public Defender, Thomas McGuire, Assistant Public Defender, and Judyanne Rogado, Deputy Public Defender for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION In 2001, appellant Manuel Silva Angeles (appellant) pleaded no contest to felony possession of cocaine (Health & Saf. Code, § 11550) and misdemeanor driving with a blood-alcohol content of 0.08 percent or greater (Veh. Code, § 23152, subd. (b)) and was placed on probation. Appellant was not a citizen of the United States. At the time of his plea, according to postconviction declarations filed by his immigration attorney, appellant was “the derivative beneficiary” of a visa petition filed in 1992 by his father, and the petition had been “approved” but was “pending.” Appellant declared that he became the subject to removal proceedings in 2014. In 2018, appellant filed a motion to vacate his 2001 plea pursuant to Penal Code section 1473.71, a statute that was enacted in 2016 and became effective on January 1, 2017. (People v. Mejia (2019) 36 Cal.App.5th 859, 861 (Mejia).) Section 1473.7 provides a basis for a noncitizen who is no longer in custody to move to vacate a conviction because of prejudicial error regarding adverse immigration consequences. If the court grants the motion, it shall permit the moving party to withdraw his plea. (§ 1473.7, subd. (e)(3).) Section 1473.7 applies retroactively and allows challenge to pleas and final convictions that occurred before the statute was effective. (People v. Rodriguez (2021) 68 Cal.App.5th 301, 309–310.) The initial version of section 1473.7 was interpreted to require the moving party to establish prejudicial ineffective assistance of counsel at the time of the plea under the standard of Strickland v. Washington (1984) 466 U.S. 668. (People v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho); People v. Ruiz (2020) 49 Cal.App.5th 1061, 1063 (Ruiz).) Appellant’s section 1473.7 motion asserted the attorney who represented him at the plea hearing was prejudicially ineffective for failing to advise him that he was 1 All further citations to “section 1473.7” are to the statute in the Penal Code. 2. pleading to an offense that would result in his mandatory deportation and essentially nullify his pending visa petition. The court denied the motion based on the …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals