P. v. Argomaniz CA5
Defendant Eliseo Argomaniz appeals the denial of his unopposed motion under Penal Code section 1473.7, subdivision (a)(1) to vacate his 2006 guilty plea. The superior court determined the motion was untimely and the evidence was not sufficient to demonstrate Argomaniz’s own error in understanding the immigration consequences of his plea.
First, the timeliness of a motion to vacate a plea is governed by subdivision (b) of section 1473.7. (People v. Perez (2021) 67 Cal.App.5th 1008, 1013 (Perez).) Under subdivision (b)(1) of section 1473.7, a motion “shall be deemed timely filed” if the moving party “is no longer in criminal custody” and the exception in subdivision (b)(2) does not apply. Here, Argomaniz is no longer in custody and the events that trigger the exception have not occurred. Therefore, Argomaniz’s motion must be deemed timely under the plain meaning of the mandatory rule in subdivision (b)(1) of section 1473.7.
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