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 a motion to vacate his conviction under section 1473.7. On

August 10, 2017, the trial court denied defendant’s motion without defendant or defense

counsel present.

       On October 4, 2017, defendant filed a timely notice of appeal. The next day, the

trial court granted defendant’s request for a certificate of probable cause. On February

23, 2018, defendant filed a request for judicial notice of the record in case No. E067686.

On March 20, 2018, we granted defendant’s request for judicial notice. On February 13,

2019, the People filed a request for leave to file a supplemental respondent’s brief and a

request for judicial notice. On February 21, 2019, we granted the People’s motions to file

a supplemental brief and for judicial notice of the documents attached to the motion, and

directed the clerk to file the People’s supplemental respondent’s brief. We also ordered


                                              3
that defendant may serve and file a supplemental reply brief. On March 12, 2019,

defendant filed his supplemental reply brief. On May 29, 2018, the People filed another

motion for judicial notice of “Senate Committee on Appropriations, Bill Analysis of

Assembly Bill 813 (2015-2016 Reg. Sess.) as of June 29, 2016,” which the People

attached to its request. On June 13, 2018, we reserved ruling on the request, to be

considered with the appeal. We hereby grant the People’s request for judicial notice

                                       DISCUSSION

       A.     THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

              DEFENDANT’S SECTION 1473.MOTION

       Defendant contends that the trial court erred in denying his motion to vacate his

conviction under section 1473.7. The People contend that the court’s ruling should be

affirmed because defendant “failed to allege a prima facie case of timeliness.”2 For the

reasons set forth post, we find that the trial court abused its discretion in denying

defendant’s motion.

              1.      LEGAL BACKGROUND

       Section 1473.7 permits a defendant to move to vacate his conviction where

prejudicial error affected his ability to understand the immigration consequences of his

       2  In their respondent’s brief, in addition to the timeliness argument, the People
also argued that the order should be affirmed because “there is no cognizable claim of
ineffective assistance of counsel because [defendant’s] counsel had no affirmative
obligation to advise him of the immigration consequences of his plea at the time that [the]
plea was entered in 2005.” On March 15, 2019, however, the People filed a letter in this
court withdrawing that argument. The People, in withdrawing the argument, agree with
defendant that defense counsel had an affirmative duty to advise defendant of adverse
immigration consequences but failed to do so.


                                              4
guilty plea. As pertinent here, to prevail on this motion, the defendant must establish the

following: (1) the defendant is no longer imprisoned or restrained; and (2) the conviction

is legally invalid due to a prejudicial error damaging the defendant’s ability to

meaningfully understand, defend against, or knowingly accept the actual or potential

adverse immigration consequences of a guilty plea. (§ 1473.7, subd. (a).) Moreover, the

motion must be filed with “reasonable diligence” after either (1) the date the defendant

receives a notice to appear in immigration court or other notice from immigration

authorities that asserts the conviction or sentence as a basis for removal; or (2) the date

the removal order against the defendant, based on the existence of the conviction or

sentence, becomes final, whichever event occurs last. (§ 1473.7, subd. (b).)

              2.     STANDARD OF REVIEW

       The People contend that we should review the court’s order for an abuse of

discretion, citing decisions involving section 1018 (See, e.g., Ponte v. County of

Calaveras (2017) 14 Cal.App.5th 551, 555; People v. Foss (2007) 155 Cal. App. 4th 113,

126; Paterno v. State of California (1999) 74 Cal. App. 4th 68, 102). Section 1018,

however, does not implicate the defendant’s constitutional rights. Section 1018 permits a

court to grant a defendant’s application to withdraw a plea “for a good cause shown,”

such as the defendant’s “[m]istake, ignorance or any other factor overcoming the exercise

of free judgment.” (People v. Cruz (1974) 12 Cal. 3d 562, 566.) When, however, a trial

court’s decision implies the rejection of a defendant’s argument that he or she has been

deprived of a constitutional right, such as the right to effective assistance of counsel, the

issue is a mixed question of law and fact, which we determine independently. (See, e.g.,


                                              5
In re Resendiz (2001) 25 Cal. 4th 230, 249, abrogated in part on other grounds in Padilla

v. Kentucky (2010) 559 U.S. 356, 370; People v. Ledesma (1987) 43 Cal. 3d 171, 210; see

generally People v. Ault (2004) 33 Cal. 4th 1250, 1264 [de novo review of mixed law and

fact questions particularly favored when constitutional right is implicated].) Thus, in

People v. Taylor (1984) 162 Cal. App. 3d 720, the court noted that although the denial of a

motion for new trial is ordinarily reviewed for abuse of discretion, when the motion is

based upon the defendant’s allegation that he was deprived of his constitutional right to

the effective assistance of counsel, the appellate court will indulge all presumptions in

favor of the trial court’s express and implied factual findings, but retain “ ‘ “the ultimate

responsibility . . . to measure the facts, as found by the trier, against the constitutional

standard . . . .” [Citation.] On that issue, in short, the appellate court exercises its

independent judgment.’ ” (Id. at pp. 724-725.)

       We acknowledge that the standard of review applicable to the denial of a section

1473.7 motion is unsettled, insofar as defendant claims a deprivation of the constitutional

right to effective assistance of counsel. To the extent the motion asserts statutory error or

a deprivation of statutory rights, the denial is reviewed for an abuse of discretion. (See

People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.) However, to the extent the motion

asserts ineffective assistance of counsel, there is a division among the appellate courts

whether the denial is reviewed under the “abuse of discretion” standard or the less

deferential standard applicable to “ ‘a mixed question of fact and law.’ ” (Id. at p. 76

[court of appeal applied de novo standard in reviewing trial court’s order denying the

defendant’s motion to vacate conviction under section 1473.7].) The People argue that


                                               6
“this court should decline to follow [Ogunmowo] because it was wrongly decided.”

Recently, in People v. Fryhaat (2019) 35 Cal.App.5th 969, 975, we followed the standard

of review set forth in Ogunmowo. We need not determine the People’s argument

because, as discussed further post, the trial court abused its discretion in denying

defendant’s motion.

              3.      THE MOTION WAS FILED ON A TIMELY BASIS

       As provided above, the People contend that defendant’s “motion did not allege a

prima facie case regarding timeliness.” We disagree.

       In this case, at the hearing on defendant’s motion, the trial court stated as follows:

       “Calling the matter of People versus Rodriguez, RIF121343, appellate docket

E067686. The defendant is not present. The defendant is currently in detention by the

federal government on a detainer, ICE hold. The Court reviewed the defendant’s motion

under . . . section 1473.7.

       “The court also reviewed the appellate division in E067686 where the appellate

court advised the defendant, which was a very unusual thing for the Court of Appeals to

do, to file a motion in the trial court under . . . section 1473.7. The court is taking judicial

notice of the E067686, and also all of the records, including the Tahl Waiver, the

transcript of the sentencing, and this case, RIF121343.

       “The only issue for this Court, the only issue, is whether or not this motion was

brought into the trial department on a timely basis. Defendant was convicted in this case

on March 3rd, 2005, and was arrested in written notification of ICE detention on June 7,




                                               7
2005, at which time he requested a hearing before the immigration court to determine

whether or not he is to remain in the United States.

       “Later, in 2005, he was ordered removed from the United States of America. He

admits that in his motion that his ICE detention and subsequent deportation was due to

the conviction in this case. [S]ection 1473.7 is not an open-ended invitation to file

motions to vacate based on immigration consequences advisement.

       “The issue, basically, is—main issue is reasonable diligence. Did the defendant

act reasonably and diligently in filing his motion? The Court indicates he did not. He

was given actual notice of his immigration consequences when he was deported in 2005.

He should have hired a lawyer in 2005, 2006, 2007 instead of coming back to the United

States. Now he’s once again in a detention facility ten years later. That’s not reasonable.

So the motion is denied.”

       In sum, the trial court denied defendant’s motion because it found that defendant

should have filed his motion in “2005, 2006, 2007.” This reasoning by the trial court,

even under the abuse of discretion standard of review, is erroneous because defendant

could not have filed his motion in “2005, 2005, [or] 2007” because section 1437.7 did not

become effective until January 1, 2017. In fact, we advised defendant that he could ask

for relief under newly enacted section 1473.7 in our opinion filed on June 14, 2017.

Defendant filed his motion on July 10, 2017—less than one month after we issued our

opinion. The trial court, therefore, abused its discretion in denying defendant’s motion

based on the fact that defendant did not act reasonably and diligently because he should

have filed his motion over 10 years prior to the enactment of section 1473.7.


                                             8
       On appeal, the People “acknowledge[] the superior court’s reasoning on timeliness

and diligence was partly erroneous.” “In assessing reasonable diligence, the superior

court could consider that it is reasonable not to have filed a motion when the statute that

created the motion did not exist.” Nevertheless, the People argue that we should affirm

the trial court’s order denying defendant’s motion because defendant failed to “explain

why he waited until July 10, 2017, to file his motion when section 1473.7 became

effective several months earlier on January 1, 2017.” The People, however, failed to

address why this seven-month delay disqualified defendant from taking advantage of the

newly-enacted statute. As noted above, defendant filed his motion weeks after we issued

our opinion in defendant’s previous appeal advising defendant that he now had a remedy

under section 1473.7. In People v. Ogunmowo, supra, 23 Cal.App.5th 67, the defendant

filed his section 1473.7 motion two months after the effective date of the statute.

(Ogunmowo, at p. 75.) The appellate court found this satisfied that the motion was

timely. (Id. at p. 81.) Here, we also fail to see how this short delay presented a “pleading

deficiency,” as argued by the People.

       In sum, defendant was still in ICE detention and his removal proceedings were

ongoing. Moreover, in our opinion filed on June 14, 2017, we advised defendant to file a

petition under section 1473.7 in the trial court. Less than a month later, defendant filed

his motion under section 1473.7. We find that defendant acted with “reasonable

diligence” under the statute and the trial court abused its discretion in finding defendant

did not act with reasonable diligence because he should have filed his motion over 10




                                              9
years prior to the enactment of section 1473.7.3 The court, therefore, erred in denying

defendant’s motion based on untimeliness.

       B.     THE TRIAL COURT VIOLATED DEFENDANT’S RIGHT TO HAVE

              COUNSEL PRESENT AT THE HEARING4

       Section 1473.7, subdivision (d), in effect at the time of the hearing on August 10,

2017, provided: “All motions shall be entitled to a hearing. At the request of the moving

party, the court may hold the hearing without the personal presence of the moving party if

counsel for the moving party is present and the court finds good cause as to why the

moving party cannot be present.” (Former § 1473.7, subd. (d), italics added.)

       In this case, the trial court failed to comply with the requirements set forth under

former section 1473.7, subdivision (d). When the trial court called the matter, defendant

was not present. The court noted: “The defendant is currently in detention by the federal

government on a detainer, ICE hold.” Moreover, the transcript from the hearing showed

that defendant was not represented by counsel at the hearing. Therefore, when the court

ruled on the section 1473.3 motion, it did so without defendant’s waiver of his right to be

present, or without counsel present.


       3 The People, in their respondent’s brief, argued that “[e]ven if the superior court
erred regarding timeliness and diligence, the ruling should be affirmed on the alternative
ground that the record did not establish defense counsel was ineffective.” The People,
withdrew this argument in the letter dated March 15, 2019.

       4 Although we find that the trial court erred in denying defendant’s section 1473.7
motion based on untimeliness, we address the right to counsel issue because this issue
needs clarification when the trial court conducts a new hearing on this motion after
remand.


                                             10
       Section 1473.7 was amended effective January 1, 2019. Amended section 1473.7,

subdivision (d), now 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.” There is nothing in the

amended language requiring the presence of counsel.

       In their supplemental brief, the People contend that the Legislature, by amending

section 1473.7, subdivision (d), to remove the language authorizing the court to hold a

hearing without the presence of the moving party if counsel for the moving party is

present, intended to clarify the statute and eliminate any implication it provides a right to

appointed counsel. The People also argue that applying a clarifying amendment to

conduct predating the amendment does not constitute a retroactive application of the new

provision. In support of their argument, the People point to the “ambiguous” language in

former subdivision (d), which does not expressly provide for court-appointed counsel;

statements in legislative committee reports that the purpose of the amendment was to

provide clarification regarding section 1473.7; and the absence of any comments in the

legislative history regarding deletion of the language regarding the presence of the

moving party’s counsel at the hearing on a section 1473.7 motion, which the People

suggest indicates the amendment did not effect a material change in that portion of the

statute.




                                             11
       The points raised by the People, however, weaken their argument, rather than

support it. Although former subdivision (d) did not expressly provide for a right to

counsel, the most reasonable interpretation of its plain language contemplated that

counsel would be appointed for indigent parties who were unable to attend the hearing

because they were in federal detention awaiting deportation. If the Legislature had

intended to “clarify” the language in former section 1473.7 by eliminating the right to

appointed counsel, some comment on that point should be in the legislative history.

There is nothing.

       We addressed and rejected the points raised by the People in Fryhaat, supra, 35

Cal.App.5th 969. In Fryhaat, the defendant argued that “the trial court erred in

summarily denying his motion to vacate his conviction with a hearing, without his

presence and without appointed counsel in violation of [former] section 1473.7.” (Id. at

p. 975.) Although the People agreed that the defendant was entitled to a hearing and the

matter must be remanded, “[t]he People believe[d] that, pursuant to the recent

amendments to section 1473.7, [the] defendant [did] not have a right to appointed counsel

and that his presence can adequately be protected by use of telephonic or

videoconference services.” (Ibid.) We disagreed with the People. We found that

although “section 1473.7 does not require a superior court to secure a defendant’s

presence at the hearing, [] if a defendant’s presence is waived or good cause exists to

excuse a defendant’s presence, such as when a defendant is confined in federal

immigration custody, then counsel must be appointed.” (Id. at p. 983-984.) We hereby

adopt the analysis and holding in Fryhaat, supra, 35 Cal.App.5th 969.


                                            12
       “[T]he People’s argument ignores the Legislative Counsel’s Digest summarizing

the final version of Assembly Bill No. 2867 (2017-2018 Reg. Sess.), which plainly

anticipated continuation of the right to counsel implicit in the original version of section

1473.7: ‘Existing law authorizes the court, at the request of the moving party, to hold the

hearing without the personal presence of the moving party if counsel for the moving party

is present and the court finds good cause as to why the moving party cannot be present.

[¶] . . . The bill would authorize the court, upon the request of the moving party, to hold

the hearing without the personal presence of the moving party and without the moving

party’s counsel present provided that it finds good cause as to why the moving party

cannot be present.’ (Legis. Counsel’s Dig., Assem. Bill No. 2867 (2017-2018 Reg.

Sess.).)” (Fryhaat, supra, 35 Cal.App.5th at p. 980, italics added.)

       In rejecting the People’s contention, we also noted that “‘[c]ourts should, if

reasonably possible, construe a statute “in a manner that avoids any doubt about its

[constitutional] validity.”’ (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal. 4th 334,

346.) ‘ “If a statute is susceptible of two constructions, one of which renders it

constitutional and the other unconstitutional (or raises serious and doubtful constitutional

questions), the court will adopt the construction which will render it free from doubt as to

its constitutionality, even if the other construction is equally reasonable.” ’ (Field v.

Bowen (2011) 199 Cal. App. 4th 346, 355; see Association for Retarded Citizens v. Dept.

Of Developmental Services (1985) 38 Cal. 3d 384, 394.)” (Fryhaat, supra, 35

Cal.App.5th at p. 980.)




                                              13
       Additionally, we agreed with the People that “neither the federal nor the state

Constitution mandates an unconditional right to counsel to pursue a collateral attack on a

judgment of conviction. (See, e.g., Pennsylvania v. Finley (1987) 481 U.S. 551, 556-557

[no federal constitutional or due process right to appointed counsel in state postconviction

proceedings]; People v. Shipman (1965) 62 Cal. 2d 226, 231-232 (Shipman); cf. In re

Barnett (2003) 31 Cal. 4th 466, 474-475 [no federal or state “constitutional right to

counsel for seeking collateral relief from a judgment of conviction via state habeas

corpus proceedings”].) Nevertheless, ‘if a postconviction petition by an incarcerated

defendant “attacking the validity of a judgment states a prima facie case leading to

issuance of an order to show cause, the appointment of counsel is demanded by due

process concerns.” ’ (People v. Rouse (2016) 245 Cal. App. 4th 292, 300, quoting In re

Clark (1993) 5 Cal. 4th 750, 780.)” (Fryhaat, supra, 35 Cal.App.5th at pp. 980-981.)

       “As explained by the California Supreme Court in Shipman, supra, 62 Cal.2d at p.

231, ‘whenever a state affords a direct or collateral remedy to attack a criminal

conviction, it cannot invidiously discriminate between rich and poor.’ Compliance with

the principle that invidious discrimination should be rooted out as unconstitutional, which

does not require ‘absolute equality to the indigent,’ may be affected by requiring the

appointment of counsel for an indigent petitioner who, in challenging a judgment of

conviction, has set forth ‘adequate factual allegations stating a prima facie case;’

otherwise, ‘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.’ (id. at p. 232.) Therefore, we construe amended section 1473.3 to provide


                                             14
the right to appointed counsel where an indigent moving party has set forth factual

allegations stating a prima facie case for entitlement to relief under the statute; to

interpret the statute otherwise would be to raise serious and doubtful questions as to its

constitutionality.” (Fryhaat, supra, 35 Cal.App.5th at p. 981.)

       “Our construction of amended section 1473.3 to provide this conditional right to

appointed counsel is supported by the Legislature’s purpose in enacting this statute. As

explained, section 1473.7 was designed to remedy the failure of then-existing California

law to provide a means for a person no longer in criminal custody to challenge a

conviction due to error affecting his or her ability to meaningfully understand the actual

or potential immigration consequences of the conviction. Specifically, a person in the

custody of federal immigration authorities could not bring such a challenge by filing a

petition for a writ of habeas corpus because he or she was ‘no longer in “custody” for

purposes of the writ.’ (Public. Safety, Rep. on Assem. Bill No. 813, supra p. 6.)

Similarly, although there is no custody requirement to bring a motion under section

1016.5 to withdraw a guilty plea for failure to be admonished of the possible immigration

consequence of the plea, a section 1016.5 motion ‘is only available where the court fails

to give the general admonishment or the record is silent on the matter.’ (Public Safety,

Rep. on Assem. Bill No. 813, supra, p. 6.) Finally, a person seeking to challenge a

conviction based on the ‘unawareness of the immigration consequences’ of his or her

plea could not petition for ‘a writ of error coram nobis’ because the challenge ‘amounted

to a claim of ineffective assistance of counsel, which is not reviewable by way of writ of




                                              15
coram nobis.’ (Public Safety, Rep. on Assem. Bill No. 813, p. 5.)” (Fryhaat, supra, 35

Cal.App.5th at p. 981.)

       “The rules governing a petition for writ of habeas corpus require a court to 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, to appoint counsel for the petitioner who desires, but cannot afford, counsel. (Cal.

Rules of Court, rule 4.551(c).) The same requirement to appoint counsel for an indigent

petitioner who has made adequate factual allegations stating a prima facie case applies to

a petition for writ of coram nobis. (Shipman, supra, 52 Cal.2d at p. 232.) As for a

motion to vacate based on the absence of immigration advisements by the court pursuant

to section 1016.5, although the statute does not ‘specify the rules that apply to such a

motion,’ the rules for writs of coram nobis have been held to apply to a section 1016.5

motion to vacate. (People v. Totari (2003) 111 Cal. App. 4th 1202, 1206-1207 [although

section 1016.5 does not expressly place burden on a defendant to prove reasonable

diligence in seeking to withdraw a plea, court of appeal held the rules for writs of coram

nobis, including the burden to prove reasonable diligence, also apply to a section 1016.5

motion to vacate ‘because a “motion to vacate” has long been equated in California with

a petition for a writ of coram nobis’].) We are not aware of any reason the rules for writs

of coram nobis applicable to a section 1016.5 motion would not include the

constitutionally grounded rules for appointing counsel for an indigent moving party.”

(Fryhaat, supra, 35 Cal.App.5th at p. 982.)




                                              16
       “In light of the fact that writs of habeas corpus and coram nobis, and likely section

1016.5 motions to vacate, require court-appointed counsel for an indigent petitioner or

moving party who has established a prima facie case for entitlement to relief, and given

that a section 1473.7 motion was intended to fill the gap left by the foregoing procedural

avenues for relief, interpreting section 1473.7 to also provide for court-appointed counsel

where an indigent moving party has adequately set forth factual allegations stating a

prima facie case for entitlement to relief would best effectuate the legislative intent in

enacting section 1473.7.” (Fryhaat, supra, 35 Cal.App.5th at p. 983, fn. omitted.)

       “Moreover, both former and current versions of section 1473.7, subdivision (d),

provide, ‘All motions shall be entitled to a hearing.’ Construing the amended statute to

require appointment of counsel for an indigent moving party who has established a prima

facie case for relief and who is in federal immigration custody would avoid the untenable

result of having such a party, who cannot be personally present at a hearing, be

effectively deprived of an opportunity to present his or her case and respond to any

arguments made in opposition at the hearing on the motion.” (Fryhaat, supra, 35

Cal.App.5th at p. 983.)

       D.     REVERSAL AND REMAND ARE NECESSARY

       In sum, because the trial court denied defendant’s motion based on untimeliness

and denied the motion without the presence of defendant or his counsel, we reverse the

trial court’s order denying defendant’s section 1473.7 motion. We remand this matter 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


                                              17
counsel if appropriate, and to address the section 1473.7 motion on its merits. (See

Fryhaat, supra, 35 Cal.App.5th at p. 984; People v. Braxton (2004) 34 Cal. 4th 798, 818-

820 [although trial court’s error in refusing to hear new trial motion not prejudicial per se,

matter must be remanded for hearing on the motion if the appellate record does not allow

reviewing court to determine as a matter of law that the motion lacked merit or to decide

that the trial court would have properly exercised its discretion to deny the motion]; see

also People v. Anzalone (2013) 56 Cal. 4th 545, 553 [“ ‘ “under the California

constitutional harmless-error provision some errors . . . are not susceptible to the

‘ordinary’ or ‘generally applicable’ harmless-error analysis—i.e., the Watson ‘reasonably

probable’ standard—and may require reversal of the judgment notwithstanding the

strength of the evidence contained in the record in a particular case” ’ ”].)

                                       DISPOSITION

       The order denying defendant’s section 1473.7 motion to vacate his conviction is

reversed, and the matter is remanded to the trial court for further proceedings consistent

with this opinion.

       CERTIFIED FOR PUBLICATION

                                                         MILLER
                                                                                             J.

We concur:

McKINSTER
                       Acting P. J.

SLOUGH
                                  J.



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