People v. Enciso CA4/2 ( 2021 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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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.
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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. A
prosecutor appeared on behalf of the People, and defendant was not present. The court
stated that, according to the court clerk, it appeared defendant was detained in CDCR
(California Department of Corrections and Rehabilitation) custody. The court then
stated: “[The] first line of 1473.7(a) is: A person who is no longer in criminal custody
may file such a motion. From the looks of it, he’s still in custody, which automatically
disqualifies him from such relief.” It then denied the motion without prejudice, stating:
“The only reason I’m denying . . . without prejudice is because the defendant is not
present. Again, he hasn’t made any arrangements to be present or had anybody appear,
but he has filed paperwork.”
DISCUSSION
The Court’s Order Must Be Reversed
Defendant argues the trial court erred in summarily denying his motion to vacate
his conviction because its finding that he was in custody was unsupported by the record.
Rather, the record showed he was and is in the custody of ICE. He contends the court
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should have appointed counsel to represent him in his absence, and it should have
conducted a hearing on the merits pursuant to section 1473.7. The People concede that
the record does not support the court’s finding that defendant was in criminal custody and
agree that the matter must be remanded to the trial court. However, the People contend
he does not have an automatic right to appointed counsel. Rather, the People contend
that we should remand with directions for the trial court to consider whether he has set
forth adequate factual allegations to state a prima facie case for relief under section
1473.7, appoint counsel if appropriate, and address the motion on the merits. We
conclude that defendant has pleaded sufficient facts for appointment of counsel and
remand the matter for a hearing on the merits with appointed counsel.
Section 1473.7, subdivision (a)(1), provides that a person who is “no longer in
criminal custody may file a motion to vacate a conviction or sentence” if “[t]he
conviction or sentence is legally invalid due to 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. . . .” Section 1473.7, subdivision (d), states: “All motions shall be entitled to
a hearing. Upon the request of the moving party, the court may hold the hearing without
the personal presence of the moving party provided that it finds good cause as to why the
moving party cannot be present. . . .”
The People concede that defendant was not, and is not, in criminal custody. They
filed a motion for judicial notice requesting this court to take judicial notice of the results
of two inmate locator searches of CDCR’s official Web site, which show that defendant
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is not in that agency’s custody. The People also requested this court to take judicial
notice of the results of a search of the official ICE Web site, showing that defendant is in
the custody of ICE at the Adelanto Detention Facility. We reserved ruling on the motion
and now take judicial notice of the matters requested. (Evid. Code, § 452, subd. (h)
[courts can take judicial notice of “[f]acts and propositions that are not reasonably subject
to dispute and are capable of immediate and accurate determination by resort to sources
of reasonably indisputable accuracy”]; see People v. Seumanu (2015) 61 Cal.4th 1293,
1372-1373 [court took judicial notice of facts from Web site maintained by CDCR].)
Thus, it is undisputed that defendant is in ICE custody at the Adelanto Detention Facility.
Accordingly, as the parties agree, we conclude that the trial court improperly denied his
motion to vacate based on its erroneous finding that he was in criminal custody.
Defendant claims that, under these circumstances, the court was required to
appoint counsel to represent him in his absence, and it should have conducted a hearing
on the merits pursuant to section 1473.7. He contends that we should now remand the
matter with directions for the court to appoint counsel and conduct a hearing on the
merits. He relies upon People v. Fryhaat (2019) 35 Cal.App.5th 969 (Fryhaat) in support
of his claim. In Fryhaat, the defendant filed a section 1473.7 motion in propria persona,
alleging that his guilty plea was not knowingly and intelligently made and that both his
attorney and the trial court failed to properly advise him of the immigration consequences
of his plea. The trial court appointed the public defender who had previously represented
him at the time of the plea, but the defense attorney was unable to contact the defendant
and declared a conflict. (Fryhaat, at p. 974.) The trial court summarily denied the
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motion, noting that the defendant was not present at the hearing, and there was no
evidence to support the motion. (Ibid.)
This court reversed the denial order. We noted the defendant’s public defender
had declared a conflict at the hearing without any communication with the defendant, that
the defendant had been notified of the hearing, and the trial court denied the motion based
on a lack of admissible evidence or the defendant’s presence. We found that “[t]his
procedure by the trial court did not constitute a hearing contemplated by section 1473.7,
as defendant did not have an opportunity to be heard and his counsel had not adequately
represented defendant in his absence.” (Fryhaat, supra, 35 Cal.App.5th at p. 977.)
The defendant in Fryhaat contended that on remand, he had a right to the
assistance of appointed counsel if he waived his personal presence at the hearing and the
superior court found good cause for his absence. (Fryhaat, supra, 35 Cal.App.5th at
p. 978.) However, we observed that “neither the federal nor the state Constitution
mandates an unconditional right to counsel to pursue a collateral attack on a judgment of
conviction.” (Id. at p. 980.) We construed section 1473.7 “to provide the right to
appointed counsel where an indigent moving party has set forth factual allegations
stating a prima facie case for entitlement to relief under the statute.” (Fryhaat, at p. 981,
italics added.) Thus, we reversed the order denying the defendant’s motion to vacate and
remanded “for the superior court to consider whether defendant has set forth adequate
factual allegations stating a prima facie case for entitlement to relief under section
1473.7, to appoint counsel if appropriate, and to address the section 1473.7 motion on its
merits.” (Id. at p. 984.) In other words, we set forth the requirement that, in order to
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trigger the appointment of counsel, the defendant had to make a prima facie case for
relief under section 1473.7. (Fryhaat, at pp. 983-984.)
Defendant here has pleaded a prima facie case for entitlement for relief under the
statute. In his motion, he asserted that his attorney failed to advise him that he would be
deported as a consequence of his plea and that the court failed to provide an interpreter,
even though there was an obvious language barrier. He further contended that he would
have never pled guilty had he known the possibility of being deported, and he asserted
that he was currently in removal proceedings. We conclude that these factual allegations
are adequate to trigger the appointment of counsel.
DISPOSITION
The order denying defendant’s section 1473.7 motion to vacate his conviction is
reversed, and the matter is remanded with directions to appoint counsel and to consider
the motion on its merits.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
SLOUGH
J.
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