People v. Reta CA3 ( 2023 )

Filed 5/10/23 P. v. Reta CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent, C096540
v.
(Super. Ct. No. P06CRF0457)
MANUEL RETA,
Defendant and Appellant.
In 2007, defendant Manuel Reta pleaded no contest to unlawfully driving or taking
a vehicle. In 2021, defendant filed a motion to withdraw his plea and vacate the 2007
conviction under Penal Code1 section 1473.7, asserting he was not adequately informed
of the immigration consequences of his plea. The trial court denied defendant’s motion
and defendant filed a motion for reconsideration of the order. After the trial court denied
the motion for reconsideration, defendant appealed, asserting that the appeal was from the
initial order denying the motion to withdraw his plea and vacate the conviction.
1 Undesignated statutory references are to the Penal Code.
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Defendant now argues the trial court erred in finding he received an adequate
advisement of the immigration consequences of his plea, and the trial court applied
an incorrect standard of “reasonable diligence” in assessing the timeliness of
defendant’s motion to withdraw his plea and vacate his conviction. The Attorney
General counters that defendant appealed from a nonappealable order -- the order
denying reconsideration -- and to the extent defendant seeks to appeal from the denial
of defendant’s motion to withdraw his plea and vacate his conviction, the appeal is
untimely. Finding merit in the Attorney General’s arguments, we will dismiss the appeal.
BACKGROUND
Defendant entered the United States in 2003, when he was 23 years old. In
March 2007, he pleaded no contest to vehicle theft (Veh. Code, § 10851, subd. (a)) in
El Dorado County Superior Court. He had two prior convictions in Sacramento County
for burglary (§ 459). A Spanish interpreter assisted him during his court proceedings
because he had a limited ability to speak or read English. When defendant reviewed the
plea form, he signed where his attorney directed him to sign, but he does not believe the
interpreter read the entire form to him. As a result of the conviction, the trial court
placed defendant on three years of formal probation with 45 days in custody.
In June 2007, defendant pleaded no contest to receipt of stolen property (§ 496,
subd. (a)) in Placer County. He was placed on probation in that case and served 180 days
in custody. The judge in the Placer County case told defendant he would be taken into
custody after completing his sentence, and defendant subsequently agreed to voluntary
deportation.
Defendant reentered the country but was caught and taken to El Dorado County
for violating probation. He admitted the violation and served 180 days in custody. After
completing the sentence, immigration authorities again took him into custody, and he
once again agreed to voluntary deportation. Defendant again reentered the United States
in 2008.
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In 2018, defendant’s daughter applied for a U-visa and tried to sponsor defendant.
But defendant was ineligible due to his criminal record, and in June 2019, an immigration
attorney informed him that his convictions made him deportable and ineligible for lawful
status and citizenship. According to defendant, this was the first time he learned of those
consequences.
Defendant filed a motion in July 2021 to withdraw his plea and vacate his
conviction under sections 1016.5 and 1473.7. The prosecution opposed defendant’s
motion, pointing to defendant’s criminal history and the advisement of immigration
consequences in the written plea agreement, which read: “I understand if I am not a
citizen of the United States, my plea to the charges in this case may result in my
deportation, exclusion from admission to the United States or denial of naturalization.”
On December 1, 2021, the trial court held a hearing on the motion. Defendant
acknowledged the immigration advisement satisfied section 1016.5, but argued it would
not resolve the section 1473.7 challenge. The trial court took the matter under
submission.
On January 5, 2022, the trial court denied the motion, reciting the advisement from
the plea agreement and noting the minute order from the plea hearing stated the trial court
had “advised the Defendant that if he pleads guilty or is found guilty he could be
deported if he is not a citizen of the United States.” The trial court said defendant had
been voluntarily deported twice, that he bore the burden of showing he was entitled to
relief under section 1473.7, and that he had not met that burden.
Defendant filed a motion for reconsideration on January 13, 2022. In the motion,
defendant argued reconsideration was required “to allow the court to correct its ruling, as
it is contrary to law and factually insupportable as well.” Defendant argued the trial
court’s finding that he had not met his evidentiary burden under section 1473.7 was
“contrary to law,” and that his voluntary deportations after the plea were “not a proper
basis to deny the motion.” Defendant reiterated the factual statements from his original
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motion, saying the fact defendant had been advised under section 1016.5 did not mean he
could not meet his burden to show he had been inadequately advised of the plea’s
immigration consequences. The motion for reconsideration did not offer new facts or
assert changes in the law.
At the hearing on the motion for reconsideration, on February 16, 2022, defendant
requested a continuance so the matter could be heard by the same judge who had
considered defendant’s initial motion to withdraw his plea and vacate the conviction.
Defendant later requested a further continuance and the trial court heard the motion on
March 25, 2022. The trial court again recited the plea agreement advisement and the
minutes, saying defendant was appropriately advised under section 1016.5. The trial
court also explained its prior references to defendant’s voluntary deportations, stating
defendant had not provided the trial court with copies of any notices he had received
at those times. The trial court added: “Even if defendant was able to establish that
there was a violation of Section 1016.5 or 1473.7, which this Court finds there was not,
the motion could be denied if it was not filed timely per Penal Code Section 1473.7[,
subdivision ](c).”
Defense counsel attempted to file a notice of appeal on May 12, 2022, but for
reasons that are unclear, the trial court did not receive the filing. Counsel again sent the
notice of appeal, and a trial court clerk rejected the filing, saying a certificate of probable
cause was required for the appeal. Counsel refiled the form, checking a different box to
indicate the appeal was from a different kind of order that did not require a request for a
certificate of probable cause, and the trial court accepted the notice on June 24, 2022.
After briefing in this matter was completed, defendant filed an application to
construe the May 12, 2022 notice of appeal as the operative notice in this case. This
court deferred decision on the application pending assignment of a panel.
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DISCUSSION
Defendant claims his appeal arises from the order denying his motion to withdraw
the plea and vacate the conviction, and thus it is appealable under section 1237,
subdivision (b), which provides in part: “An appeal may be taken by the defendant
from . . . [¶] . . . [¶] . . . any order made after judgment, affecting the substantial rights
of the party.” The Attorney General disagrees, arguing defendant’s appeal arises from
the order denying the motion for reconsideration, a nonappealable order. The Attorney
General argues in the alternative that the notice of appeal, which was filed on June 24,
2022, is untimely.
The California Supreme Court has held that although section 1237 is generally
broad in scope, “no appeal lies from an order denying a motion to vacate a judgment of
conviction on a ground which could have been reviewed on appeal from the judgment.”
(People v. Thomas (1959) 52 Cal.2d 521, 527 (Thomas); accord, People v. Rick (1952)
112 Cal.App.2d 410, 412 [“An order made after judgment is not appealable where the
motion merely asked the court to repeat or overrule a former ruling on the same facts”].)
This is because permitting such an appeal “ ‘would be virtually allowing two appeals
from the same ruling, and would, in some cases, have the effect of extending the time for
appealing contrary to the effect of the statute.’ ” (People v. Palmer (1942) 49 Cal.App.2d
579, 580.) “In such a situation appeal from the judgment is an adequate remedy.”
(Thomas, at p. 527.)
Nevertheless, defendant could appeal the trial court’s January 5, 2022 denial of his
motion to vacate, because section 1473.7, subdivision (f) expressly authorizes such an
appeal. (People v. Vivar (2021) 11 Cal.5th 510, 523 [“When a trial court grants or denies
a motion to vacate a conviction under section 1473.7, the parties can appeal.”].) But
defendant could not appeal from the denial of his motion for reconsideration.
Defendant’s motion to vacate and his motion for reconsideration were based on the same
facts and operative law. No new facts or laws were asserted in the motion for
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reconsideration. Rather, the motion for reconsideration argued the trial court’s ruling was
“contrary to law” because it found defendant had not met his burden of proof and cited
the “irrelevant” fact that he had voluntarily deported himself in the past. Defendant filed
the motion for reconsideration as an alternative to appealing the initial order denying the
motion to vacate, saying he “should not be forced to wait for relief via an appeal given
that the court’s ruling is based on clear errors of fact and law.” The trial court’s order
denying the motion for reconsideration mirrored its order denying the motion to vacate.
Both rulings recited the immigration consequence advisement defendant had received
during the plea hearing and mentioned defendant’s two voluntary deportations. The
order denying the motion for reconsideration implicates the considerations identified in
Thomas.
Defendant claims he is appealing the denial of his motion to vacate and that he
chose not to appeal immediately because it was an interim order that required
clarification; thus he asked for reconsideration rather than proceeding to a costly and
time-consuming appeal. But his argument runs afoul of the principles articulated in
Thomas. Defendant had 60 days to appeal the January 5 order denying his motion to
vacate. (Cal. Rules of Court, rule 8.308(a); see In re Chavez (2003) 30 Cal.4th 643,
650 [the time frame for a notice of appeal is essential to the finality of judgments].)
His motion for reconsideration did not extend the deadline. (Cal. Rules of Court,
rule 8.308(a) [“no court may extend the time to file a notice of appeal”].) And there
is no indication the trial court considered the order denying the motion to vacate to be
an “interim order.” The denial of defendant’s motion for reconsideration was not
appealable. (People v. Van Buren (1933) 134 Cal.App. 206, 208-209 [“ ‘a party who has
a right to appeal from a judgment or order is not allowed to move to set it aside and then
appeal from an order denying his motion’ ”].)
Because we conclude the March 25 order denying the motion for reconsideration
is not an appealable order, it does not matter whether defendant’s May 12, 2022 notice of
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appeal or defendant’s June 24, 2022 notice of appeal is considered the applicable notice
of appeal; both notices are untimely if they are construed to be from the January 5, 2022
order denying the motion to vacate the conviction. Defendant’s application to construe
the May 12, 2022 notice of appeal as the applicable notice of appeal is therefore denied
as moot.
DISPOSITION
The appeal is dismissed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
BOULWARE EURIE, J.
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