Vasilyan

*446 Opinion

Appellant Arthur Vasilyan was charged by the Los Angeles County District Attorney in 1994 with three counts of a violation of Penal Code section 422.7 (section 422.7). He pleaded nolo contendere to two counts; the third count was dismissed. Appellant was placed on probation on the conditions that he would serve 39 days in county jail, pay a fine, and Serve 80 hours of community service. No appeal was taken from the judgment of conviction.

On June 21, 2007, appellant, through his counsel, filed a motion to vacate the judgment and for leave to withdraw his guilty plea. Alternatively, the motion sought relief in terms of petitions for writs of coram nobis, habeas corpus, and audita querela. In large part, the motion relied on People v. Wallace (2003) 109 Cal.App.4th 1699 [ 1 Cal.Rptr.3d 324 ] (Wallace), which held that section 422.7 is only a penalty provision; we set forth the entirety of section 422.7 in the margin. 1 An amended motion, much to the same effect as the original motion, was filed on December 7, 2007. The motion was denied. This appeal is from the denial of the motion entered on December 12, 2007. We agree with appellant that the judgment entered in 1994…

Fifteen years ago, defendant and three accomplices committed a violent hate crime on a public street. Early in 1995, defendant accepted a favorable disposition which included a felony no contest plea, probation, and a 39-day jail term. In 2003, defendant was deported for reasons not clear from this record, but apparently based in part on the 1995 convictions, as well as additional felonies committed at a later time. In 2007, defendant, unable to enter the United States legally, moved through counsel to vacate the 1995 convictions on the ground that the People’s charging theory was invalidated by a Court of Appeal decision rendered in 2003. I respectfully dissent from a decision that allows a belated collateral attack under these circumstances by a defendant no longer subject to the jurisdiction of any California court.

FACTUAL AND PROCEDURAL HISTORY

On August 28, 1994, Arthur Vasilyan drove his brother and two other males to an area near the intersection of Santa Monica Boulevard and Hilldale Avenue, where all four men began yelling at two pedestrians with epithets to the effect, “Come on fag[g]ot. Come on fight, fag[g]ot. I’m going to fuck you up.” “Do something about it,…

Appellant Arthur Vasilyan was charged by the Los Angeles County District Attorney in 1994 with three counts of a violation of Penal Code section 422.7 (section 422.7). He pleaded nolo contendere to two counts; the third count was dismissed. Appellant was placed on probation on the conditions that he would serve 39 days in county jail, pay a fine, and Serve 80 hours of community service. No appeal was taken from the judgment of conviction.

On June 21, 2007, appellant, through his counsel, filed a motion to vacate the judgment and for leave to withdraw his guilty plea. Alternatively, the motion sought relief in terms of petitions for writs of coram nobis, habeas corpus, and audita querela. In large part, the motion relied on People v. Wallace (2003) 109 Cal.App.4th 1699 [ 1 Cal.Rptr.3d 324 ] ( Wallace ), which held that section 422.7 is only a penalty provision; we set forth the entirety of section 422.7 in the margin. [1] An amended motion, much to the same effect as the original motion, was filed on December 7, 2007. The motion was denied. This appeal is from the denial of the motion entered on December 12, 2007. We agree with appellant that the judgment entered in…