People v. Rodriguez

Filed 8/16/19 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E069339 v. (Super.Ct.No. RIF121343) JORGE A. MILLAN RODRIGUEZ, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Reversed. Conrad Petermann, Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Adrian R. Contreras and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent. 1 FACTUAL AND PROCEDURAL HISTORY On March 3, 2005, defendant and appellant Jorge A. Millian Rodriguez pled guilty to unlawful intercourse by a person over 21 under Penal Code1 section 261.5, subdivision (d). Defendant, as a person over 21, admitted to having sex with a person under the age of 16. The trial court sentenced defendant to formal probation for 36 months. On June 7, 2005, defendant was taken into custody by the Immigration and Naturalization Service pending resolution by an immigration judge whether defendant would be removed from the United States. That same year, defendant was ordered removed. On November 6, 2007, defendant admitted to violating his probation. The trial court added 60 days to defendant’s sentence, to be served on a work release program to commence on December 14, 2007, and reinstated defendant’s probation. On September 10, 2008, defendant admitted a violation of a term of his probation requiring defendant to report to probation. The court then reinstated probation. “On December 16, 2016, defendant filed a petition for dismissal under . . . section 1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under . . . section 17, subdivision (b). As mitigation, defendant provided in his petition that he married the victim and had two children with her. Moreover, defendant noted that both violations of probation occurred because he was in the custody of Immigration and Customs Enforcement (ICE) and was deported so he was unable to meet his probation 1 All further statutory references are to the Penal Code unless otherwise specified. 2 officer or check in for his weekend custody obligation.” (People v. Rodriguez, case No. E067686, p. 2).) The trial court denied both of defendant’s motions. (Ibid.) On January 30, 2017, defendant filed an appeal. On June 14, 2017, we affirmed the trial court’s order denying defendant’s motions, “but without prejudice to defendant’s right to file a motion for relief under newly-enacted . . . section 1473.7; effective January 1, 2017.” (People v. Rodriguez, supra, case No. E067686 at p. 7.) On January 1, 2017, section 1473.7 went into effect. Among other things, section 1473.7 permits a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant’s ability to understand the immigration consequences of the plea. On July 10, 2017, following the filing of our opinion in defendant’s first appeal, defendant, in pro. per., filed ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals