People v. Prasad CA4/3

Filed 8/18/20 P. v. Prasad CA4/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G057152
(Consol. with G057154)
v.
(Super. Ct. Nos. 95WF1183 &
DHARMENDRA PRASAD, 98WF0001)
Defendant and Appellant. OPINION
Appeals from orders of the Superior Court of Orange County, Elizabeth G.
Macias, Judge. Reversed and remanded.
Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, and Yvette M. Martinez, Deputy
Attorney General, for Plaintiff and Respondent.
On October 15, 1996, appellant Dharmendra Prasad pled guilty to charges
of unlawfully taking a vehicle (Veh. Code, § 10851). On March 23, 1998, appellant
Dharmendra Prasad again pled guilty to charges of unlawfully taking a vehicle (Veh.
Code, § 10851) and also pled to grand theft (auto) (Pen. Code, 487(a)).1 His exposure in
terms of penalty on the two cases was 3 years, 8 months of incarceration in the state
prison, in addition to whatever he received for violating two earlier probationary grants.
Under the terms of his plea bargain, he was sentenced to two years in state prison. Over
the years, appellant has filed various motions seeking to overturn or challenge the
consequences of those pleas, apparently due to their immigration consequences, but to no
avail.
His most recent attempt was the filing of motions pursuant to sections
1016.5 and 1473.7, filed in December of 2018. Those were denied without a hearing.
We appointed counsel to represent appellant. Counsel filed a brief in which she set forth
the procedural facts of the case (the facts of the crimes themselves are irrelevant because
the argument is solely directed at the validity of appellant’s plea and no challenge
pertaining to any facts of the crime is mounted).
Counsel did not argue against her client but advised us there were no issues
to argue on his behalf. Appellant was invited to express his own objections to the
proceedings against him and did so with identical briefs. We reviewed those briefs. We
were also required to review the record and see if we could find any issues that might
result in some kind of amelioration of appellant’s lot. (People v. Wende (1979) 25 Cal. 3d
436.) It should be emphasized that our search was not for issues upon which appellant
would prevail, but only issues upon which he might possibly prevail.
1 All further statutory references are to the Penal Code.
2
We did so. And having done so, we ordered counsel to brief the following
issue: Does section 1473.7 provide for a stand-alone motion separate from habeas corpus
rules and proceedings, and if so, was appellant entitled to a hearing under that statute.
However, we did not realize we were dealing with two different cases. We
thought we had one case which had been incorrectly numbered as two different appeals –
probably because of the supplemental brief by appellant, filed after his counsel’s Wende
submission. Fortunately, appointed counsel brought this to the attention of the Supreme
Court and the matter was remanded to us.
So we consolidated the two cases for determination of the issue we raised
since it seems to be identical in both cases. The appeal is from the denial of the section
1473.7 motions. Prasad filed a separate appeal from the denial of the section 1016.5
motion. The two cases have been consolidated; our determination that error was
committed in the denial of a hearing on the section 1473.7 motion makes it unnecessary
for us to reach the section 1016.5 argument.
Prasad, his appointed counsel, and the Attorney General are now in
agreement that Prasad was entitled to a hearing to determine the merits of his section
1473.7 motion. No such hearing was held in this case. As the Attorney General
concedes, “[S]ection 1473.7 provides for a stand-alone motion separate from habeas
corpus rules and proceedings, and [] the trial court denied appellant’s right to a hearing
under that statute when it denied the motion without conducting an adequate hearing.”
Appellant is entitled to be represented by counsel at that hearing.
3
The orders denying appellant’s motion to vacate his convictions are
therefore reversed and the matter is remanded for the trial court to conduct a hearing
pursuant to section 1473.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
4