Renewed PC 1473.7(a) Motion to Vacate Properly Denied

In 2015, in San Diego County, Angelita Garcia DeMontoya rented a home from a landlord, who lived in a residence behind a main house.

Ms. DeMontoya was born in Mexico and was not a U.S. citizen. She had come to the United States at age 13 and became a legal permanent resident in 2007. She gave birth to two daughters who were born in California.

One day, the landlord came home from her job cleaning houses and DeMontoya told her to come inside DeMontoya’s house. When the landlord walked into DeMontoya’s house, DeMontoya was with two other women the landlord did not recognize. DeMontoya told landlord to sign a check for $250,000 and when landlord refused, the three women blocked the landlord’s exit.

During an ensuing struggle, DeMontoya placed a machete against the landlord’s neck and said, “you had better sign or else.” DeMontoya was sitting on top of the landlord while the other two women were trying to tape the landlord’s mouth shut.

The landlord then attempted to exit the room through an open window and while doing so, DeMontoya’s daughter (who worked for the San Diego County Sheriff’s Department) saw her mom trying to hold the landlord inside and called the police.

Police arrived and found the machete, crumpled packing tape and other evidence of a struggle. The landlord had three marks on the right side of her neck, consistent with an object like a machete being pressed against her neck. She also had numerous bruises on her arms and a scratch that was bleeding.

DeMontoya was charged with three counts: (1) assault with a deadly weapon (Penal Code § 245(a)(1)); (2) attempted robbery (Penal Code §§ 211, 664); and (3) false imprisonment by violence, menace, fraud and deceit (Penal Code §§ 236, 237(a)).

In January 2016, DeMontoya agreed to plead guilty to the assault with a deadly weapon charge (Penal Code § 245(a)(1)) and agreed to the personal use of a deadly weapon enhancement in exchange for the prosecution’s agreement to dismiss the other two counts, with an agreement that the judge could sentence her up to four years in state prison.

In entering her plea, she initialed a guilty plea form wherein she acknowledged that if she was not a U.S. citizen, her guilty plea to an aggravated felony would cause her “to be deported, excluded from admission to the U.S., and denied naturalization.”

As the reader of this article may know, a conviction for violating Penal Code § 245(a)(1) is an aggravated felony under U.S. Immigration law.

DeMontoya’s attorney, Albert Arena, signed the form, stating he explained the entire form to Ms. DeMontoya and discussed the charges, the possible defenses and plea consequences, “including any immigration consequences.”

The judge accepting DeMontoya’s plea, Judge Gary Haehnel, questioning her if she understood that if she was not a U.S. citizen, her plea of guilty will result in her being deported, excluded from admission and denied naturalization.

At sentencing, DeMontoya’s attorney argued that the sentence should be probation because the guilty plea “will have a dramatic impact on her immigration status. . . She most likely will be deported to Mexico.”

The judge then imposed a two-year prison sentence.

DeMontoya was immediately remanded and finished her two-year sentence in state prison in September 2016 (nine months later), and was then transferred to immigration custody at Otay Mesa Detention Center.

In March 2018, DeMontoya filed a motion to withdraw or vacate her guilty plea under Penal Code § 1473.7(a)(1). At that time, she remained in immigration custody. In her motion, she argued that her defense attorney never explained to her the immigration consequences, the prosecutor failed to consider avoidance of immigration consequences (as is required under Penal Code § 1016.3); and her attorney provided constitutionally ineffective assistance of counsel for failing to propose a sentencing cap of 364 days in custody, which would not have triggered mandatory deportation.

At the 1473.7(a)(1) hearing, Mr. Arena testified that he “very, very mush aware” of DeMontoya’s immigration status and that avoiding deportation was very important to DeMontoya. Mr. Arena also testified that he had multiple plea negotiations with the prosecutor wherein he tried to reach an immigration-neutral plea bargain.

The judge (Stephanie Sontag) denied Ms. DeMontoya’s motion under Penal Code § 1473.7(a)(1) based on Mr. Arena’s testimony and his arguments during sentencing that the immigration consequences of any prison sentence would be deportation.

In 2021, DeMontoya filed a second 1473.7(a)(1) motion, submitting a letter from a psychologist that DeMontoya suffered from depression and a 2020 declaration from an attorney with experience in immigration and criminal law who suggested alternative pleas that could have been negotiated to avoid deportation.

The judge denied the motion based on issues of collateral estoppel because “the same exact issues had already been necessarily decided on their merits” in DeMontoya’s earlier motion.

DeMontoya then appealed to the Fourth Appellate District Court, which affirmed the trial court ruling.

We bring this summary to the reader’s attention because we get many calls from people facing deportation who have already filed and had a 1473.7(a)(1) motion denied. They want to hire us to file a second such motion with more law and perhaps a declaration from an immigration attorney, but essentially, the second motion would be making the same arguments. We then have to explain to the caller what collateral estoppel and res judicata are that bar such a second attempt.

For more information about a Motion to Vacate under Penal Code § 1473.7(a)(1), please click on the following articles: