People v. Perez

Filed 1/23/18 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D072121 Plaintiff and Respondent, v. (Super. Ct. No. SCN197963) MODESTO PEREZ, Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Nina Bonyak, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent. In August 2005, Modesto Perez pled guilty to possession of methamphetamine for sale (Health & Saf. Code, §11378). Over six months later, Perez was deported to Mexico based on his conviction. On January 1, 2017, Penal Code1 section 1473.7 became effective. That statute allows a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that "[t]he conviction or sentence is legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) Perez subsequently filed a motion to vacate his conviction under section 1473.7. The superior court denied Perez's motion. Perez appeals, contending the court erred in denying his motion. The People counter, arguing the statute does not apply retroactively and, even if it did, Perez's motion was untimely and the record shows that he had sufficient knowledge of the immigration consequences of his plea. We determine that section 1473.7 does apply to Perez. However, we conclude Perez has not shown he is entitled to relief under that statute. As such, we affirm the order. FACTUAL AND PROCEDURAL BACKGROUND Guilty Plea The operative complaint charged Perez with possession of methamphetamine for sale (Health & Saf. Code, § 11378), among other crimes. Perez ultimately pled guilty to that charge at a hearing on August 10, 2005. The superior court noted that Perez 1 Statutory references are to the Penal Code unless otherwise specified. 2 appeared to be very emotional and asked if the hearing should be postponed. As part of its inquiry, the court asked why Perez was upset: "Okay. Is this the case -- since we're using the interpreter, is this a case where Mr. Perez is a citizen of another country and afraid this will result in his --" Perez's counsel responded, "I am sure that's a concern, when speaking in terms of totality. Sure. That's one thing. I explained it to my client. That is an issue. That will follow through after his sentence is up." The court then offered to postpone the hearing if Perez was "too emotional to go ahead with" it. Perez did not indicate that he wanted to continue the hearing to a later time. The court then asked what Perez wanted to do and explained the immigration consequences if Perez pled guilty: "What ...

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