People v. Kashani CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN236630, CN328963, CN332175
- Trial judge
- Brad A. Weinreb
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), William S. Dato, Patricia Guerrero
Analysis
The trial court denied Kashani's motion to vacate his convictions under Penal Code section 1473.7, finding the motion untimely and lacking merit because Kashani was aware of the immigration consequences. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate convictions under Penal Code section 1473.7, subdivision (f) based on untimeliness and lack of merit.“The trial court first found that Kashani’s motions were untimely. Specifically, removal proceedings were initiated against Kashani in 2012. Section 1473.7, which went into effect on January 1, 2017, states that motions be filed with “reasonable diligence.”” | unclear | not reached | unsure The appellate court did not apply a specific standard of review (such as abuse of discretion) to the trial court's factual findings or legal conclusions. Instead, the court conducted a Wende/Anders review of the record to determine if there were any 'arguable issues for reversal.' Finding none, the court affirmed the judgment without explicitly analyzing the correctness of the trial court's application of the 'reasonable diligence' standard or the sufficiency of the evidence regarding Kashani's knowledge of immigration consequences. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified in the brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues or explaining why none exist, and the court must independently review the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its adherence to Wende and Anders requirements, as it explicitly states that counsel filed a Wende brief and the court reviewed the entire record. However, it is substantively thin because it fails to address the specific legal arguments raised by the pro se appellant regarding the 'reasonable diligence' standard and the timeliness of the motion, relying instead on a blanket statement that no arguable issues were found.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Mirmassoud Kashani's Penal Code section 1473.7 motion to vacate four felony and three misdemeanor convictions, finding the motion both untimely (filed about three and a half years after the statute took effect) and meritless because Kashani, a law school graduate who passed the bar and whose plea form was altered to say deportation 'will' result, knew the immigration consequences of his pleas. On appeal, appointed counsel filed a Wende brief, Kashani filed a supplemental pro. per. brief, and the Court of Appeal, after independent review of the record, found no arguable issues and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that the section 1473.7 motion was untimely because it was filed roughly three and a half years after the statute's January 1, 2017 effective date, despite removal proceedings having begun in 2012“Section 1473.7, which went into effect on January 1, 2017, states that motions be filed with “reasonable diligence.” Kashani filed his motion approximately three and a half years after the statute went into effect.” | unclear | correct (statutory interpretation) | disagree with court Section 1473.7, subdivision (b)(2) provides that a motion may be deemed untimely only if not filed with reasonable diligence after the later of (A) receipt of a notice to appear or similar immigration notice or (B) notice that a final removal order has been issued. The opinion recites that the removal order was entered in 2019 and affirmed in 2020, and Kashani filed in June 2020; measuring diligence from the statute's effective date rather than from the later statutory trigger does not track the text, and Kashani expressly raised this point. The Court of Appeal dismissed it without analysis. Because the trial court also ruled on the merits, the timeliness error would likely be harmless, but the opinion should have engaged with the statutory argument rather than labeling it non-arguable. |
Finding on the merits that Kashani understood the adverse immigration consequences of his pleas and showed no prejudicial error, based on his legal training, the time he had to evaluate the plea, the plea form advising deportation 'will' result, and the absence of any indication the People would have accepted a different factual basis“The trial court also found that Kashani was aware of the immigration consequences when he entered his pleas.” | unclear | correct | agree with court Under section 1473.7, subdivision (a)(1) the movant must show by a preponderance an error damaging his ability to meaningfully understand the immigration consequences and resulting prejudice. A plea form specifically altered by counsel from 'may' to 'will' be deported, signed by a bar-passing law graduate, is strong contemporaneous evidence that he actually understood deportation was mandatory, and the trial court's prejudice finding regarding the factual basis is consistent with the record described. The result appears supportable even under the independent review standard of People v. Vivar, though the opinion never identifies that standard or explains its reasoning beyond declaring no arguable issue exists. |
Rejection of Kashani's contention that the trial court misunderstood the governing law and the applicable burden of proof under section 1473.7“We have carefully reviewed Kashani’s supplemental brief. It does not raise any arguable issues for reversal on appeal.” | unclear | correct | unsure The opinion gives no description of what burden or legal standard the trial court actually applied, and does not cite People v. Vivar (2021) 11 Cal.5th 510, which sets both the preponderance burden and the independent appellate review standard for section 1473.7 motions. The trial court's reference to whether counsel could have worded a 'safer factual basis' suggests it may have framed the issue partly in ineffective-assistance terms, though the statute does not require a showing of ineffective assistance. Without more of the record or any analysis in the opinion, I cannot tell whether the trial court applied the correct standard. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief identifying no arguable issues, the Court of Appeal independently reviews the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and refer to anything in the record that might arguably support the appeal.
- missed: People v. Vivar (2021) 11 Cal.5th 510 — Appellate courts independently review the denial of a section 1473.7 motion; the movant must show by a preponderance of the evidence an error damaging his ability to understand the immigration consequences of a plea and a reasonable probability he would have rejected the plea had he understood, without any requirement of showing ineffective assistance of counsel.
The appellate opinion: sound with gaps — The affirmance is defensible because the trial court's merits finding rests on strong record evidence that a bar-passing law graduate signed a plea form expressly stating he 'will' be deported, which independently supports denial regardless of timeliness. But the opinion states no standard of review, omits the controlling Supreme Court decision in Vivar, and dismisses without analysis Kashani's statutory timeliness argument, which has textual force under section 1473.7, subdivision (b)(2)(B) given the removal order became final in 2019-2020 and he filed in June 2020.
How this analysis was made · dispute it
record incompleteOpinion
Filed 12/10/21 P. v. Kashani CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078676
Plaintiff and Respondent, v. (Super. Ct. Nos. SCN236630, CN328963, CN332175) MIRMASSOUD KASHANI, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Brad A. Weinreb, Judge. Affirmed. Mirmassoud Kashani, in pro. per.; and Jay Temple, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In order to avoid immigration consequences of his criminal convictions, Mirmassoud Kashani filed a motion under Penal Code 1 section 1473.7, subdivision (f) to vacate four felony convictions and three misdemeanor 1 All further statutory references are to the Penal Code. convictions. After briefing and a hearing, the trial court found the motion untimely and lacking merit. Kashani appeals the denial of his motion. In September 2010, Kashani pleaded guilty to one count of felony conspiracy (§ 182, subd. (a)(4)) and three counts of use of personal identifying information of another person (§ 530, subd. (a)) and admitted a special allegation under section 12022.6, subdivision (a)(2). He was sentenced to a stipulated term of four years in prison. In 2014, Kashani pleaded guilty to misdemeanor violations of sections 484 and 490.5 in two separate cases. He was sentenced to time served. In 2012, federal immigration authorities instituted removal proceedings. The removal order was entered in 2019 and affirmed in 2020. In June 2020, Kashani, who has a law degree and passed the California bar, filed a motion to vacate his convictions under section 1473.7, contending he had ineffective assistance of counsel in his convictions and that he did not understand the adverse immigration consequences of his various guilty pleas. After briefing and a hearing, the trial court denied Kashani’s motion to vacate by written order. Kashani filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Kashani the opportunity to file his own brief on appeal. Kashani has responded with a lengthy brief which repeats the submissions he has previously made in the trial court. We will address his brief below.
2 STATEMENT OF FACTS We will incorporate the statement of facts contained in appellant’s opening brief for background information. In ruling on Kashani’s motion, the trial court first found that Kashani’s motions were untimely. Specifically, removal proceedings were initiated against Kashani in 2012. Section 1473.7, which went into effect on January 1, 2017, states that motions be filed with “reasonable diligence.” Kashani filed his motion approximately three and a half years after the statute went into effect. The trial court also found that Kashani was aware of the immigration consequences when he entered his pleas. In so finding, the trial court cited to Kashani’s law degree and passage of the California Bar exam, the time Kashani had between the filing of the complaint and pleading guilty to research and evaluate possible consequences of his plea in San Diego Superior Court case No. SCN236630 (case No. SCN236630), the fact that Kashani’s attorney crossed out the word “may” and wrote “will” in the clause discussing deportation consequences on the change of plea form in case No. SCN236630, and the fact that even if Kashani’s attorney in that case could have worded a safer factual basis, there is no indication that the People would have accepted the proposed changes in light of Kashani’s criminal history and his conduct underlying the charges. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S.738 (Anders), counsel has identified a possible issue which was considered in evaluating the 3 potential merits of this appeal: Whether the trial court erred in denying Kashani’s motions for relief under section 1473.7. In his supplemental brief, Kashani argues the trial court was ignorant of the law that it applied to this case, or at least misunderstood the applicable burden of proof. He also argues the three and a half years from the effective date of section 1473.7, subdivision (f) was not unreasonable. He contends the affirmance of his appeal from the immigration ruling constituted a new adverse action and therefore rendered his filing timely. We have carefully reviewed Kashani’s supplemental brief. It does not raise any arguable issues for reversal on appeal. In addition, we have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Kashani on this appeal. DISPOSITION The order denying Kashani’s motion to vacate convictions under section 1473.7, subdivision (f) is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12