The Fourth Appellate District has determined that the timeliness of a motion to vacate filed by individual whose conviction pre-dates Penal Code section 1473.7 should be measured, in part, by when the individual became aware of the existence of 1473.7 relief.
“By explaining the scope of the trial court’s discretion under the amended statute, Perez clarified that “reasonable diligence” is not a timeliness requirement for section 1473.7 motions made under subdivision (a)(1), but rather a condition that, if present, requires the court to grant meritorious motions. Conversely, if the condition is lacking, the court is then empowered to exercise its discretion to either consider the merits or deny the motion on timeliness grounds. Here, it is not clear whether the trial court understood that it was making a discretionary decision when it denied Alatorre’s motion as untimely. But of course, it did not have the benefit of Perez’s statutory construction at the time. Nor did it give a clear indication—as the trial court in Perez did—that it would have granted the motion if it understood that it had the discretion to do so. Regardless, the heart of the trial court’s evaluation of timeliness in this case lies elsewhere and requires that we address an issue Perez did not reach: how to analyze whether a petitioner exercised reasonable diligence in cases where the petitioner’s triggering events predate section 1473.7.”
“What event in Alatorre’s life that occurred after section 1473.7 became effective would have given him “a reason to look for the existence of [new] legal grounds for relief” or, at a minimum, “put him on notice of the need to investigate[?]” “[W]e conclude it is most consistent with the meaning and purpose of section 1473.7 to evaluate reasonable diligence in cases where the petitioner’s triggering events predated the law by determining whether or when the petitioner had a reason to inquire about new legal grounds for relief, and assessing the reasonableness of the petitioner’s diligence from that point forward. Just as the triggering events in the statute provide petitioners still in the U.S. with notice of a fact (such as pending deportation), courts must look for an analogous event in the life of petitioners like Alatorre that would provide notice of a change in the law that the petitioner would otherwise have no occasion to learn about (such as the availability of relief under section 1473.7).”
The full text of People v. Alatorre can be found here:
http://sos.metnews.com/sos.cgi?1021//D077894
The court subsequently issued two amended opinions, which indicated that the prosecution could not call a prior defense attorney to testify in contradiction to a defendant’s statements about whether counsel advised the defendant about the immigration consequences of a plea because a motion under 1473.7 does not require a showing of ineffective assistance of counsel.
The first set of modifications can be found here:
http://sos.metnews.com/sos.cgi?1121//D077894M
The second set of modifications can be found here:
http://sos.metnews.com/sos.cgi?1121//D077894N
