Filed 6/21/22 P. v. Djama CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a).

This opinion has not been certified for publication or ordered published for purposes of rule 

8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

GULNORA DJAMA,

Defendant and Appellant.

B313618

Los Angeles County

Super. Ct. No. GA098431

APPEAL from an order of the Superior Court of 

Los Angeles County, Michael D. Carter, Judge. Reversed and 

remanded with directions.

Christopher Lionel Haberman, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Chung L. Mar,

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

In 2017, defendant Gulnora Djama1 pled no contest to a 

misdemeanor violation of Health and Safety Code section 11360, 

subdivision (a). In 2021, Djama moved to vacate her conviction

under Penal Code2 section 1473.7, asserting her trial counsel 

misadvised her about the immigration consequences of her plea 

and that had she been properly advised of those consequences, 

she would not have entered the plea. The trial court denied 

Djama’s motion without holding a hearing and without Djama’s

or her counsel’s presence. 

On appeal, Djama argues, and the People agree, that the 

court erred in summarily denying her motion to vacate her 

conviction and that the matter must be remanded for further 

proceedings under section 1473.7. We agree with the parties that 

the court erred in summarily denying Djama’s motion, but we 

reject Djama’s contention that the People should be estopped 

from opposing it on remand. We therefore reverse the order 

denying Djama’s motion to vacate her conviction and remand the 

matter with directions for the court to conduct a hearing on the 

merits of the motion.

BACKGROUND

Djama is a citizen of Uzbekistan. She entered the United 

States in 2011 as a lawful permanent resident. Djama emigrated 

here to improve her life financially, to help her family, and “to 

live freely as a Muslim lesbian without fear of persecution,” 

which she was facing in her home country. 

1 Throughout the record, defendant’s last name appears as “Djama” 

and “Djamalitdinova.” We refer to defendant as “Djama” in this 

opinion.

2 All undesignated statutory references are to the Penal Code.
3

In July 2016, the People charged Djama with allowing a 

mischievous animal to cause serious bodily injury to another 

person (§ 399, count 1); assault with a deadly weapon—a dog (§ 

245, subd. (a)(1), count 3); criminal threats (§ 422, subd. (a), 

count 5); and unlawful transportation of marijuana (Health & 

Saf. Code, § 11360, subd. (a), count 6). The court bifurcated count 

6 from counts 1, 3, and 5. 

On June 16, 2017, Djama, who was represented by a

deputy alternate public defender, pled no contest to count 6.

During the plea colloquy, the prosecutor advised Djama of, 

among other things, the immigration consequences of entering a 

no contest plea to a misdemeanor violation of Health and Safety 

Code section 11360, subdivision (a): “If you are not a citizen of the 

United States, your plea today will cause you to be deported, 

exclusion from admission to the United States, or denied 

naturalization.” Djama responded “yes” when asked to confirm 

that her attorney spoke to her about the immigration 

consequences of her plea and had not told her anything different 

from what was included in the prosecutor’s advisement.

Following a bench trial on the bifurcated charges, the court 

found Djama guilty as charged in counts 1 and 5 and of the lesser 

included offense of misdemeanor assault in count 3. The court 

suspended imposition of Djama’s sentence and placed her on 

three years’ probation.3

On April 9, 2021, Djama, through counsel, filed a motion to 

vacate her conviction for a violation of Health and Safety Code 

section 11360, subdivision (a) and to set aside her no contest plea. 

To support her motion, Djama submitted several exhibits, 

including her own declaration in which she asserted the 

3 In 2019, we affirmed Djama’s criminal threats conviction in a 

nonpublished opinion. (People v. Djama (Jan. 23, 2019, B283611) 

[nonpub. opn.].)
4

following. Djama retained Jeffery Rubenstein’s law firm to 

represent her in this case and in a separate case in which she 

was also charged with a violation of Health and Safety Code 

section 11360, subdivision (a) (Superior Court case No.

SA092874). Rubenstein and his associate, Young Sik Cho, 

advised Djama that “accepting a plea to [a violation] of Health 

and Safety Code §11360(a), as a misdemeanor, is a safe 

immigration plea.” Rubenstein’s firm was later relieved from 

representing Djama in this case due to a conflict, although the 

firm continued to represent her in case No. SA092874. In 

January 2017, Djama pled no contest to a violation of Health and 

Safety Code section 11360, subdivision (a) in case No. SA092874. 

Djama’s conviction in case No. SA092874 was subsequently 

vacated under section 1473.7 by Judge Elden Fox.

After Rubenstein was relieved as Djama’s counsel in this 

case, a deputy alternate public defender was appointed to 

represent her. When Djama told the deputy alternate public 

defender that her former attorneys had advised her to plead no 

contest to the drug charge, he responded, “okay we will do so the 

way your former attorney advised you.” After Djama pled no 

contest to the drug charge in this case, she was placed on an 

immigration hold. When Djama asked the deputy alternate 

public defender why she was facing removal proceedings, he told 

her that “he did what [her] former attorney advised [her].” 

Djama asserted that she “did not know or understand” that 

pleading no contest to a violation of Health and Safety Code 

section 11360, subdivision (a) would subject her to adverse 

immigration consequences. Had she been aware of such 

consequences, she would not have pled no contest to the drug 

charge.

Djama also submitted declarations from Rubenstein and 

Cho, in which the attorneys acknowledged they misadvised her 
5

about the immigration consequences of pleading no contest to a 

violation of Health and Safety Code section 11360, subdivision 

(a).

4 Both attorneys declared that they “failed to defend and 

mitigate against the negative immigration consequences of 

[Djama’s] plea by exploring alternative dispositions to mitigate 

the harm that would have no immigration consequences.” In 

addition, Cho testified that, before Djama entered her plea, she

asked him whether a conviction for violating Health and Safety 

Code section 11360, subdivision (a) would affect her immigration 

status.

Djama filed several other exhibits in support of her motion, 

including a notice to appear in immigration court from the 

United States Department of Homeland Security, an automated 

case information sheet from Djama’s pending immigration 

proceedings, and the trial court’s order granting her motion to 

vacate her conviction and set aside her no contest plea in case No. 

SA092874. The notice to appear identifies Djama’s convictions in 

this case and in case No. SA092874 for violating Health and 

Safety Code section 11360, subdivision (a) as crimes subjecting 

her to removal from the country.

4 On January 6, 2022, Djama moved to file a redacted opening brief 

that redacts text referencing the contents of Exhibits B through F. We 

deny Djama’s request to file a redacted opening brief. First, Djama 

does not specifically identify what information included in Exhibits B 

through F is confidential as a matter of law. (Cal. Rules of Court, rule 

2.550(c) [“Unless confidentiality is required by law, court records are 

presumed to be open”].) Second, Djama cited to and discussed the 

contents of all the exhibits in her publicly filed motion to vacate her 

conviction. (See Universal City Studios, Inc. v. Superior Court (2003) 

110 Cal.App.4th 1273, 1286 [party’s voluntary disclosure to the public 

of information it claimed was confidential substantially outweighs the 

asserted confidentiality interests].)
6

On April 27, 2021, the same judge who presided over 

Djama’s plea hearing and bench trial (Michael Carter) denied 

Djama’s motion without a hearing and without Djama’s or her 

counsel’s presence. Citing to the reporter’s transcript from the

plea hearing in this case, the court found Djama couldn’t satisfy 

the requirements of section 1473.7 because she was advised of, 

and acknowledged, the immigration consequences of her plea

before she entered it.

5

Djama appeals.

DISCUSSION

Under section 1473.7, subdivision (a)(1), a person who is no 

longer in criminal custody may file a motion to vacate a 

conviction or sentence on the basis that “[t]he conviction or 

sentence is legally invalid due to prejudicial error damaging the 

moving party’s ability to meaningfully understand, defend 

against, or knowingly accept the actual or potential adverse 

immigration consequences of a plea of guilty or nolo contendere. 

A finding of legal invalidity may, but need not, include a finding 

of ineffective assistance of counsel.” All motions filed under 

section 1473.7 are entitled to a hearing with the moving party 

present, unless she requests not to be present and the court finds 

good cause for her absence. (Id., subd. (d).) If the prosecution has 

no objection to the motion, the court may grant it without a 

hearing. (Ibid.)

5 Although the court stated in its minute order denying Djama’s motion 

to vacate her conviction that Djama entered her no contest plea to

count 6 on May 11, 2017, it appears that is a typographical error. The

evidentiary phase of the court trial on counts 1, 3, and 5 concluded on 

May 11, 2017, but the court issued its verdict on those counts, and 

Djama entered her no contest plea to count 6, on June 16, 2017.
7

We exercise our independent judgment in determining 

whether the trial court applied proper procedures when ruling on 

a motion under section 1473.7. (People v. Fryhaat (2019) 35 

Cal.App.5th 969, 975–976.)

The parties agree, and so do we, that the court erred when 

it denied Djama’s motion to vacate her conviction on count 6 for 

violating Health and Safety Code section 11360, subdivision (a).

The court denied Djama’s motion without holding a hearing and

without Djama’s and her attorney’s presence. Nothing in the 

record shows Djama waived her right to appear at a hearing on 

her motion or that the court made a finding that there was good 

cause to hold a hearing without her presence. As noted above, 

section 1473.7, subdivision (d) expressly provides that all motions 

filed under the statute are “entitled to a hearing,” and that the 

moving party must be present at the hearing unless she requests 

it be held without her and the court finds good cause as to why 

she cannot be present. (§ 1473.7, subd. (d).) The matter, 

therefore, must be remanded for a hearing on Djama’s motion 

under section 1473.7.

The parties disagree, however, on how the matter should 

proceed on remand. Djama argues the People should be 

collaterally estopped from opposing her motion in this case 

because the trial court in case No. SA092874 already vacated her 

other conviction for violating Health and Safety Code section 

11360, subdivision (a).6 Because the same attorneys—Rubenstein 

6 Although Djama mentions the doctrine of res judicata, or claim 

preclusion, in her opening brief, she doesn’t address the elements of 

that doctrine or argue that it bars the People from opposing her motion 

on remand. Rather, she limits her arguments in her opening and reply 

briefs to the doctrine of issue preclusion, also known as collateral 

estoppel. We therefore address only whether the People are barred 

from opposing Djama’s motion on remand under principles of issue 

preclusion.
8

and Cho—erroneously advised her of the immigration 

consequences of pleading no contest to the same drug charge in 

both cases, Djama insists that the dispositive issue raised by her 

motion in this case has already been resolved on the merits in her 

favor. 

Issue preclusion “prohibits the relitigation of issues argued 

and decided in a previous case, even if the second suit raises 

different causes of action.” (DKN Holdings LLC v. Faerber (2015) 

61 Cal.4th 813, 824.) Issue preclusion applies: (1) after a final 

adjudication (2) of an identical issue (3) that was actually 

litigated and necessarily decided in the first suit and (4) asserted 

against one who was a party to or is in privity with a party to the 

first suit. (Id. at p. 825.) 

The elements of issue preclusion are not satisfied in this 

case. While the primary issue that was decided on Djama’s 

motion to vacate her conviction in case No. SA092874 is similar 

to the issue raised in this case, the issues are not identical. To be 

sure, Rubenstein and Cho represented Djama at times in both 

cases, and it is undisputed that those attorneys misadvised her 

about the immigration consequences of pleading no contest to 

violating Health and Safety Code section 11360, subdivision (a). 

But, unlike in case No. SA092874, Djama was not represented by 

Rubenstein and Cho at the time she entered her no contest plea

in this case. Instead, by the time of the plea hearing in this case 

(which occurred several months after the plea hearing in case No. 

SA092874), Djama was represented by a deputy alternate public 

defender. And, although Djama asserts in her moving papers that 

the deputy alternate public defender advised her to follow 

Rubenstein’s and Cho’s erroneous advice about the potential 

immigration consequences of pleading no contest to the drug 

charge, Djama stated during the June 16, 2017 plea colloquy that 

she had spoken to the deputy alternate public defender about the 
9

immigration consequences of her plea and that he had not 

advised her any differently from what was included in the 

prosecutor’s immigration advisement. 

Thus, whether the deputy alternate public defender 

properly advised Djama in this case about the immigration 

consequences of her plea is a factual issue that wasn’t resolved 

when the trial court in case No. SA092874 granted her motion to 

vacate her conviction for violating Health and Safety Code 

section 11360, subdivision (a). Since that unresolved issue is 

relevant to determining whether there was “prejudicial error 

damaging [Djama’s] ability to meaningfully understand, defend 

against, or knowingly accept the actual or potential adverse 

immigration consequences” of her conviction (§ 1473.7, subd. (a)), 

issue preclusion does not bar the People from opposing Djama’s 

motion on remand.7

In short, the court erred when it denied Djama’s motion to 

vacate her conviction without a hearing and without Djama’s and 

her attorney’s presence. On remand, the court must conduct a 

hearing to decide Djama’s motion on the merits. Djama must be 

present at that hearing unless she requests the hearing be held 

without her and the court finds good cause for her absence. (§ 

1473.7, subd. (d).) The People will be permitted to oppose the 

motion.

7 For this reason, we decline Djama’s request to rule on the merits of 

her motion on the “cold record” pursuant to People v. Vivar (2021) 11 

Cal.5th 510, 528.
10

DISPOSITION

The order denying Djama’s motion to vacate her conviction 

is reversed. The matter is remanded to the trial court with 

directions for the court to conduct a hearing on the merits of the 

motion under section 1473.7, subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

KIM, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.