People v. Andaluz

1

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO LOPEZ ANDALUZ, Defendant and Appellant.

F083421

California Court of Appeals, Fifth District

June 16, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No TCF063801-00. Nathan G. Leedy, Judge.

C Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Jeffrey A. White and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Appellant and defendant Antonio Lopez Andaluz was arrested on July 30 2000, for driving under the influence (DUI). He did not have a driver's license. He identified himself as "Antonio Lopez" and gave a birthdate. He was charged with two misdemeanor DUI counts and released from custody. Appellant failed to appear at the first hearing and a bench warrant was issued. Thereafter, a person named "Antonio Lopez" was brought before the court. After a few hearings, the court and parties determined that "Antonio Lopez" was not the same person arrested for the DUI offenses on July 30, 2000.

Appellant subsequently appeared in court, and an amended complaint was filed that again charged him with two misdemeanor DUI counts, and added a new charge-a felony violation of Penal Code section 530.5, subdivision (a),^[1] identity theft, alleged to have been committed on the day of his arrest. The identity theft charge was apparently based on the allegation that appellant gave a false name and birthdate when he was arrested for DUI on July 30, 2000, which erroneously led to "Antonio Lopez" being brought into court.

In 2003, appellant pleaded no contest to the felony charge of violating section 530.5, subdivision (a) and one misdemeanor DUI count (Veh. Code, § 23152, subd. (a)), and he was placed on probation. The court read the section 1016.5 immigration advisement at the plea hearing, and appellant stated he understood.

In March 2020, appellant filed a motion to vacate his no contest plea pursuant to section 1473.7, subdivision (a)(1), based on his alleged prejudicial error about the immigration consequences of his plea to felony identity theft. His motion also asserted there was no factual basis to support his conviction for violating section 530.5, subdivision (a), because he did not give a false name, and the conviction should be dismissed pursuant to section 1385. The superior court denied both motions, and found appellant was ineligible for relief because he was still on probation in the identity theft case and, thus, in custody within the meaning of section 1473.7, subdivision (a). In doing so, the court found appellant may not have given a false name when he was arrested in July 2000, but he committed identity theft by giving a false birthdate. ^[2]

In December 2020, after he was discharged from probation, appellant filed a second motion to vacate pursuant to section 1473.7, subdivision (a)(1), and argued that while the court read the section 1016.5 immigration advisement at the plea hearing in 2003, he did not meaningfully understand the immigration consequences of his plea to identity theft. Appellant further argued his error was prejudicial because he was a legal resident of the United States, and a conviction for violating section 530.5, subdivision (a), was defined as a crime involving moral turpitude (CIMT) under federal immigration law, it would prevent him from becoming a citizen, and it would result in his deportation. He again separately argued there was no factual basis for his plea.

The superior court denied appellant's second motion and found it was not timely under section 1473.7, subdivision (b), because he had not been served with a notice of deportation, and also because section 530.5, subdivision (a), was not defined as an offense subjecting him to adverse immigration consequences as required by section 1473.7, subdivision (e)(1). The court's ruling was based on Linares-Gonzalez v. Lynch (2016) 823 F.3d 508 (Linares-Gonzalez), where the Ninth Circuit held a violation of section 530.5, subdivision (a), was not a CIMT under federal immigration law and would not trigger harsh immigration consequences. The court declined to address the factual basis for his plea.

On appeal, appellant argues his second motion to vacate was timely filed, his supporting declaration established his prejudicial error about the immigration consequences of his plea to violating section 530.5, subdivision (a), and his conviction should be vacated.

This court requested supplemental briefing from the parties. In response, appellant asserts remand would be appropriate to (1) further develop his motion to vacate based on the California Supreme Court's opinions in People v. Vivar (2021) 11 Cal.5th 510 (Vivar) and People v. Espinoza (2023) 14 Cal.5th 311 (Espinoza), both of which were decided after he filed his motions to vacate; and (2) as a separate matter, to consider whether to file a motion to vacate based on section 1473.7, subdivision (a)(2), that there was newly discovered evidence that he was factually innocent of violating section 530.5, subdivision (a), based on his claims about the alleged lack of a factual basis for his plea. The People disagree and argue the superior court's order denying relief should be affirmed.

We find appellant may have met his burden to establish his own subjective error about the immigration consequences of his plea, but his supporting declaration was insufficient as to the prejudicial impact of that error as required by Vivar and Espinoza. In addition, appellant's motion was timely under section 1473.7, subdivision (b), because he was no longer in custody when he filed his second motion, but he failed to make the showing required by section 1473.7, subdivision (e)(1), that his conviction "is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization" (ibid.), based upon the holding in Linares-Gonzalez, that a violation of section 530.5, subdivision (a), is not a CIMT and it did not have the potential to cause harsh immigration consequences. We further find appellant's motion to vacate should have been denied without prejudice to refiling his section 1473.7, subdivision (a)(1), motion if federal immigration law changes on the interpretation of a violation of section 530.5, subdivision (a).

As a separate matter, we agree with appellant the instant matter should be remanded for further proceedings for appellant to consider whether to file a motion to vacate based on his claim about the alleged absence of a factual basis for his plea, pursuant to section 1473.7, subdivision (a)(2), that requires the moving party to establish there is "[n]ewly discovered evidence" of his actual innocence of violating section 530.5, subdivision (a), as the statute read at the time he was alleged to have committed the offense in 2000.

APPELLANT'S PLEA IN CASE NO. 0063801

We begin with the circumstances that resulted in appellant's pleas and convictions in Tulare Superior Court case No 0063801 (case No. 0063801), where he was charged with DUI offenses, a person other than appellant initially appeared before the court, and how that led to appellant's conviction for committing identity theft in violation of section 530.5, subdivision (a).

Deputy Garcia's Crime Report

The following account of appellant's arrest is from a crime report filed by Tulare County Sheriff's Deputy Garcia, dated July 31, 2000.^[3] At 3:40 a.m. on July 30, 2000, Deputy Garcia performed a traffic stop on a blue Dodge van on Road 144 in Earlimart because the van was weaving around, crossing the centerline, and driving on the dirt shoulder. When Garcia approached the driver's window, he smelled the strong odor of alcohol from the driver. The driver had red, watery eyes, spoke with slurred speech, and got out of the vehicle with an unsteady gait.

It is undisputed that appellant Antonio Lopez Andaluz was the person driving the van that night.

The crime report stated the driver was identified as "Antonio Lopez," born on January 15, 1965, with an address at an apartment on South Albany Street in Delano. He did not have a driver's license or identification. The vehicle was registered to "Joyce Andaluz" at the same South Albany address in Delano.

Deputy Garcia detained appellant for suspicion of DUI. Appellant was transported to the Pixley substation, where he was further evaluated and arrested for DUI.

Misdemenor Complaint

On September 14, 2000, a misdemeanor complaint was filed in case No. 0063801, charging appellant, identified as "ANTONIO LOPEZ," with committing the following misdemeanor offenses on July 30, 2000: count 1, driving under the influence (Veh. Code, § 23152, subd. (a)), and count 2, driving with a blood-alcohol level of 0.08 percent or greater (id., subd. (b)). The complaint did not state Lopez's birthdate.

On September 25, 2000, a minute order was filed that stated Antonio Lopez failed to appear for the scheduled arraignment, and the court issued a bench warrant for his arrest. The printed minute order did not state a birthdate for "Lopez," but there was a handwritten note in the caption next to the line "DOB" that stated "1/15/65," which was the birthdate stated in Deputy Garcia's report.

Court Appearances By the Wrong Person

On June 20, 2001, a minute order stated the court held a "WALK-IN" arraignment in case No. 0063801, and Antonio Lopez was present in court. The minute order did not state a birthdate for Lopez. The court recalled the bench warrant and appointed the public...