People v. Marroquin CA2/7 ( 2020 )

Filed 11/18/20 P. v. Marroquin CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299842
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA224467-01)
v.
ARMANDO ANTONIO
MARROQUIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Craig Richman, Judge. Affirmed.
David R. Greifinger, 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, and J. Michael Lehmann, Deputy
Attorney General, for Plaintiff and Respondent.
The superior court summarily denied Armando Antonio
Marroquin’s motion pursuant to Penal Code section 1473.7,
subdivision (a),1 to set aside his prior convictions. On appeal
Marroquin argues the court erred in denying relief under
section 1473.7, subdivision (a)(2), because the convictions were
not based on a plea. Accordingly, he argues, the case should be
remanded for a hearing, as required by the statute, and, if he
alleges facts establishing a prima facie case for relief, for
appointment of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Marroquin’s Prior Convictions
Marroquin was convicted following a jury trial in 2002 of
continuous sexual abuse of his daughter, a child under the age of
14 years (§ 288.5, subd. (a)); making a criminal threat (§ 422);
and willful infliction of corporal injury on a spouse or cohabitant
(§ 273.5). The court sentenced him to an aggregate term of
17 years eight months. We affirmed the judgment on appeal.
(People v. Marroquin (April 13, 2004, B165641) [nonpub. opn.].)
2. Marroquin’s Motion To Vacate Convictions or Sentence
Marroquin, now in federal immigration custody, filed a
“Request for Notice and Ruling” on April 29, 2019. Marroquin’s
request attached a completed Judicial Council form CR-187
(motion to vacate conviction or sentence pursuant to
sections 1016.5 and 1473.7) and sought a ruling on the attached
motion, which Marroquin explained had been previously mailed
to the court.
1 Statutory references are to this code.
2
On the Judicial Council form Marroquin checked the box
for item 3, next to “Motion Under Penal Code Section 1473.7.”2
Under the heading “Grounds for Relief,” he checked the box for
item 3a, next to the form’s preprinted statement he sought relief
because of a prejudicial error damaging the ability to
meaningfully understand the actual or potential adverse
immigration consequences of a plea of guilty or nolo contendere.
In the space provided for factual support for item 3a, Marroquin
wrote he had been denied the effective assistance of counsel
because his attorney had provided erroneous advice regarding the
immigration consequences of accepting a plea offer.
In addition, under the same “Grounds for Relief” heading,
Marroquin checked the box for item 3b, next to the form’s
preprinted statement “Newly discovered evidence of actual
innocence exists that requires vacation of the conviction or
sentence as a matter of law or in the interests of justice.” On an
indented line under that statement was a second preprinted
statement with a box next to it: “I discovered the new evidence of
actual innocence on (date).” The form provided a space for
addition of a date after that second statement. Marroquin did
not check the box for that second statement, nor did he provide a
date in the space provided. In the space provided for facts
2 Marroquin also checked the box for item 2, next to “Motion
Under Penal Code Section 1016.5.” In the space provided at
item 2c for facts supporting relief under section 1016.5,
Marroquin contended the court had failed to provide sufficient
information regarding the immigration consequences of a plea
offer. He also challenged an evidentiary ruling pertaining to
admissibility at trial of expert testimony and, referring to a
habeas corpus petition he had filed in 2010, asserted he had other
reasons for vacating his convictions.
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supporting item 3b, Marroquin stated the following: “There is
new evidence of my innocence that is in possession of the
government. I will request that evidence in a motion for
discovery under Penal Code section § 1054.1. The information to
be disclosed by prosecution is new evidence that I have [not]
discovered yet, to do that I will need the assistance of counsel to
make that motion.”
For item 4, Marroquin checked the box indicating that he
was represented by counsel who would appear at the hearing and
that he requested the court hold the hearing without his personal
presence. In the space provided for reasons to hold a hearing in
his absence, he requested the court appoint counsel to represent
him because he had been in the custody of ICE (the United States
Immigration and Customs Enforcement) since July 13, 2017 and
was unable to appear.
In a two-page attachment to the Judicial Council form
Marroquin contended the ineffective assistance of his counsel,
who was allegedly ignorant of immigration law, had damaged his
ability to meaningfully understand the immigration
consequences of a plea offer. He explained his counsel was so
deficient Marroquin had to determine from an outside source
whether a conviction on any of the offenses with which he had
been charged constituted an aggravated felony under
immigration law, and asserted his attorney had failed to provide
him with sufficient information to enable an intelligent decision
whether to accept a plea deal that had been offered to him.
Stating he had other claims entitling him to relief, he referred to
a habeas corpus petition he had filed in 2010. He concluded, “I
have satisfied the burden of establish[ing] counsel’s performance
was deficient in misadvising about . . . specific immigration
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consequences and/or relief[] of pleading to the (2) two counts” and
again requested appointment of counsel.
Marroquin included a two-page declaration repeating his
contentions from the two-page attachment. His declaration also
provided additional details regarding his attorney’s alleged
failure to provide sufficient information regarding the
immigration consequences of accepting a plea offer.
3. The Superior Court’s Ruling Denying the Motion
The superior court called the case on May 13, 2019.
Marroquin was not present and not represented by counsel. The
minute order for the proceeding states, “The Court has read and
considered the defendant’s motion to vacate conviction or
sentence. [¶] Defendant’s motion is denied. Convictions resulted
from jury trial, not pleas. Remedy not available.”3
DISCUSSION
1. Governing Law
Section 1473.7, subdivision (a), provides, “A person who is
no longer in criminal custody may file a motion to vacate a
conviction or sentence for either of the following reasons: [¶]
(1) The 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. . . . [¶] (2) Newly discovered evidence of actual
innocence exists that requires vacation of the conviction or
sentence as a matter of law or in the interests of justice.”
Subdivision (c) requires a motion pursuant to subdivision (a)(2) to
3 The record on appeal does not include a reporter’s
transcript of the May 13, 2019 proceeding.
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be filed “without undue delay from the date the moving party
discovered, or could have discovered with the exercise of due
diligence, the evidence that provides a basis for relief” under
section 1473.7.
Subdivision (d) provides, “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. If the prosecution has no objection to
the motion, the court may grant the motion to vacate the
conviction or sentence without a hearing.” The court must grant
the motion to vacate the conviction or sentence “if the moving
party establishes, by a preponderance of the evidence, the
existence of any of the grounds for relief specified in
subdivision (a).” (§ 1473.7, subd. (e)(1).) In ruling on a
section 1473.7, subdivision (a)(2), motion, the court must also
specify the basis for its decision. (§ 1473.7, subd. (e)(4).)
2. The Superior Court Did Not Commit Reversible Error
Marroquin on appeal does not challenge the superior
court’s denial of his motion to the extent it was predicated on his
allegations of inadequate immigration advisements: He does not
dispute sections 1016.5, subdivision (b), and 1473.7,
subdivision (a)(1), authorize relief only for convictions or
sentences obtained by a plea of guilty or nolo contendere.
However, as Marroquin argues, and the Attorney General
effectively concedes, relief under section 1473.7,
subdivision (a)(2), authorizing a motion to vacate a conviction
based on newly discovered evidence of actual innocence, is
available to individuals no longer in criminal custody whether
convicted after trial or by plea. Nonetheless, because
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Marroquin’s motion not only failed to identify any purportedly
newly discovered evidence, but also affirmatively alleged he
merely hoped to obtain some through discovery, denial of the
motion was proper because it lacked merit as a matter of law.
(See People v. Zapien (1993) 4 Cal. 4th 929, 976 [“‘“a ruling or
decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason”’”].)
Marroquin’s conclusory argument we should nevertheless
remand the case for a hearing because section 1473.7,
subdivision (d), mandates a hearing for all motions, improperly
conflates the principles for remand applicable to a reviewing
court with the statutory requirements for a hearing applicable to
a court considering his section 1473.7 motion in the first instance.
He has identified nothing in the statute or its legislative history
evidencing a legislative intent in enacting section 1473.7 to alter
well-established authority governing appellate review. Moreover,
Marroquin has not shown, and cannot establish, prejudice for any
failure by the superior court to comply with section 1473.7,
subdivision (d), a state law error, because his motion for relief
under section 1473.7, subdivision (a)(2), was devoid of merit as a
matter of law. (People v. Braxton (2004) 34 Cal. 4th 798, 818 [for
purposes of harmless error analysis, there is no prejudice when
the reviewing court properly determines as a matter of law that
defendant’s motion lacked merit].)
Although Marroquin in his opening brief provides support
for the general principle that a deprivation of life, liberty or
property must be preceded by notice and opportunity for a
hearing “appropriate to the nature of the case,” he cites no legal
authority for a constitutional right to a hearing in the
circumstances present here, a postconviction motion where the
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moving party’s own factual allegations show lack of entitlement
to the relief sought. (See, e.g., Allen v. City of Sacramento (2015)
234 Cal. App. 4th 41, 52 [“citing cases without any discussion of
their application to the present case results in forfeiture”; “[w]e
are not required to examine undeveloped claims”]; Mansell v.
Board of Administration (1994) 30 Cal. App. 4th 539, 545-546
[reviewing court need not consider an inadequately supported
legal argument; “‘[t]his court is not inclined to act as counsel for
. . . appellant’”].)
3. Rodriguez and Fryhaat Do Not Compel a Different
Result
Based on People v. Rodriguez (2019) 38 Cal. App. 5th 971
(Rodriguez) and People v. Fryhaat (2019) 35 Cal. App. 5th 969,
983-984 (Fryhaat), Marroquin argues we should nevertheless
reverse the order denying his motion and remand the case with
instructions to the superior court to consider whether he has set
forth a prima facie case for relief and direct the court to appoint
counsel if it determines he has done so. Neither case requires
such a futile exercise.
In Rodriguez, supra, 38 Cal. App. 5th 971 the court of appeal
reversed the superior court’s order denying a section 1473.7,
subdivision (a)(1), motion, which the court had considered
without the presence of the moving party or his counsel, and
remanded the case “for the trial 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.” (Rodriguez, at p. 984.) In so holding, the
court construed section 1473.7 “‘to require appointment of
counsel for an indigent moving party who has established a
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prima facie case for relief and who is in federal immigration
custody.’” (Ibid.; accord, Fryhaat, supra, 35 Cal.App.5th at
pp. 983-984.)
We agree with the premise implicit in Marroquin’s
argument: Appointment of counsel for an indigent individual not
in criminal custody is appropriate under section 1473.7,
subdivision (a), only when his or her moving papers state specific
facts establishing a prima facie case for relief. (See generally
People v. Shipman (1965) 62 Cal. 2d 226, 232 [“Unless we make
the filing of adequately detailed factual allegations stating a
prima facie case a condition to appointing counsel, there would be
no alternative but to require the state to appoint counsel for
every prisoner who asserts that there may be some possible
ground for challenging his conviction. Neither the United States
Constitution nor the California Constitution compels that
alternative”].)
The legislative history of section 1473.7 indicates the
Legislature’s intent to extend to those within the statute’s scope
relief similar to that available to individuals in criminal custody
who file a petition for a writ of habeas corpus. (Legis. Counsel’s
Dig., Assem. Bill No. 813 (2015-2016 Reg. Sess.) [“[u]nder
existing law, although persons not presently restrained of liberty
may seek certain types of relief from the disabilities of conviction,
the writ of habeas corpus is generally not available to them”]; see
Fryhaat, supra, 35 Cal.App.5th at pp. 976, 983 & fn. 5 [“the
purpose of the legislation was to ‘fill a gap in California criminal
procedure’ [citation] by providing a means to challenge a
conviction by a person facing possible deportation who is no
longer in criminal custody and thus for whom a petition for a writ
of habeas corpus is not available”; “a section 1473.7 motion also
9
fills the gap left by a section 1473.6 motion to vacate [based on
newly discovered evidence falling within certain categories],” and
“the procedure applicable to a motion to vacate under
section 1473.6 is the same as for a petition for writ of habeas
corpus”].) Accordingly, although the statutory language does not
mandate adherence to the identical procedures, the rules
governing habeas proceedings should generally be applied to
motions for relief under section 1473.7 absent a contrary
expression of legislative intent.
Upon the filing of a petition for writ of habeas corpus, the
superior court must issue an order to show cause if the petitioner
has made a prima facie showing of entitlement to relief, based on
the petitioner’s factual allegations taken as true, and, upon
issuing the order, appoint counsel for the petitioner who desires,
but cannot afford, counsel. (Cal. Rules of Court, rule 4.551(c).)
As the court held in Fryhaat, supra, 35 Cal.App.5th at page 983,
interpreting section 1473.7 in like manner—that is, to also
provide for court-appointed counsel only after an indigent moving
party has adequately set forth factual allegations stating a
prima facie case for entitlement to relief—properly effectuates
the legislative intent in enacting section 1473.7. (Accord,
Rodriguez, supra, 38 Cal.App.5th at pp. 984-985.)
Here, Marroquin identified absolutely no newly discovered
evidence of actual innocence, either in his moving papers in the
superior court or on appeal. Indeed, notwithstanding his
checking the box on the Judicial Council form indicating his
motion was based on subdivision (a)(2), he left unchecked the box
relating to the date he discovered the new evidence; and, in
stating the facts supporting his motion, he not only failed to state
what, if any, new evidence of innocence had been discovered
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requiring vacatur of his convictions or sentences as a matter of
law or in the interests of justice but also affirmatively explained
he would require a separate discovery motion to ascertain the
new evidence he had “yet” to discover. Under these
circumstances it was not error for the court to proceed without
appointment of counsel.
To be sure, in both Rodriguez and Fryhaat the court of
appeal remanded for the superior court to make a determination
whether the moving party had set forth adequate factual
allegations stating a prima facie case for entitlement to relief.
(Rodriguez, supra, 38 Cal.App.5th at pp. 984-985; Fryhaat, supra,
35 Cal.App.5th at p. 984.) However, as the Fryhaat court
explained, remand was necessary because there was only a
“meager record” in the case, which involved a subdivision (a)(1)
motion for inadequate immigration advisements. Rejecting the
People’s argument the moving party had failed to state a
prima facie case by omitting a supporting declaration and
alleging facts that were contrary to the record, the court stated,
“[W]e cannot assume defendant was in fact advised of the
immigration consequences by his appointed counsel without an
adequate record.” (Fryhaat, at pp. 982-983.) Here, in contrast,
no remand is necessary because Marroquin’s own factual
allegations demonstrate he is not entitled to the relief he
requests. (See People v. Jefferson (2019) 38 Cal. App. 5th 399, 409
[“remand is not appropriate when it would be an idle act”].)
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DISPOSITION
The order denying Marroquin’s motion to vacate his
convictions or sentences is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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