People v. Arissol CA2/6 ( 2021 )

Filed 1/20/21 P. v. Arissol CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302755
(Super. Ct. No. F498681001)
Plaintiff and Respondent, (San Luis Obispo County)
v.
CHRISTOPHER MERVIN
ARISSOL,
Defendant and Appellant.
Christopher Mervin Arissol appeals an October 30,
2019 order denying his motion to vacate a 2014 felony conviction
pursuant to Penal Code section 1473.7.1 Appellant contends, and
the Attorney General agrees, the superior court erred in denying
the motion without appellant present. (§ 1473.7, subd. (d).) We
reverse and remand with directions to appoint counsel for
appellant if appropriate, and conduct a hearing on the merits of
1 All statutory references are to the Penal Code.
the motion at which appellant and the People will be permitted to
present evidence, testimony, and argument.
Procedural History
In 2014, appellant pled no contest to two counts of
corporal injury on a spouse/cohabitant (§ 273.5, subd. (a)) and
false imprisonment with force (§ 236). The trial court suspended
imposition of sentence and granted three years probation with
365 days jail.
On July 22, 2019, appellant filed a pro per motion to
vacate the conviction alleging that he received ineffective
assistance of trial counsel because counsel failed to advise him of
the immigration consequences of the plea before it was entered.
The motion stated that appellant was being detained by the
United States Immigration and Customs Enforcement (ICE) and
that he had been advised that he will be deported as a result of
the conviction.
The superior court denied the motion on October 30,
2019 without appellant present.
Personal Presence at Hearing
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 record reflects
that appellant did not waive his right to be present and the trial
court did not make a good cause finding as to why appellant could
not be present. “[T]he plain language of section 1473.7,
subdivision (d), establishes that a moving party is entitled to
a hearing” and “entitle[s appellant] to be personally present at
the hearing.” (People v. Fryhaat (2019) 35 Cal.App.5th 969, 977
2
(Fryhaat).) The Attorney General agrees that counsel should be
appointed for appellant if the trial court, on remand, determines
the moving papers set forth adequate factual allegations stating a
prima facie case for entitlement to relief. (Id. at pp. 983-984.)
Disposition
The order denying the section 1437.7 motion to
vacate the conviction is reversed and the matter is remanded
with directions to: evaluate appellant’s motion and request for
appointment of counsel consistent with the opinion, appoint
counsel for appellant if appropriate, and conduct a hearing on the
merits of the motion at which appellant and the People will be
permitted to present evidence, testimony, and argument.
(Fryhaat, supra, 35 Cal.App.5th at p. 984; People v. Rodriguez
(2019) 38 Cal.App.5th 971, 984.)
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
3
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Heather E. Shallenberger, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.