California v. RodriguezAnnotate this Case
In 2005, defendant-appellant Jorge Rodriguez pled guilty to unlawful intercourse by a person over 21 under Penal Code1 section 261.5(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. Days later, 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. In 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 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. In 2016, filed a petition for dismissal under Penal Code section 1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under section 17(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 officer or check in for his weekend custody obligation. Both motions were denied, and defendant appealed. On January 1, 2017, Penal Code section 1473.7 went into effect. Among other things, section 1473.7 permitted 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 the Court of APpeal's opinion in defendant’s first appeal, defendant, in pro. per., filed a motion to vacate his conviction under section 1473.7. The trial court denied defendant’s motion without defendant or defense counsel present. The Court of Appeal determined the trial court abused its discretion in denying defendant's section 1473.3 motion and reversed.