People v. Villalba CA2/2 ( 2023 )

Filed 3/8/23 P. v. Villalba CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B318353
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA143872)
v.
CESAR ALFREDO VILLALBA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, LaRonda J. McCoy, Judge. Reversed and
remanded.
Douglas Jalaie for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle, Steven D. Matthews and
David F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Cesar Alfredo Villalba (defendant)
appeals the denial of his motion brought pursuant to Penal Code
section 1473.7, subdivision (a)1 to withdraw his 2017 no contest
plea to a violation of section 273.5 and to vacate his conviction.
He contends that he did not meaningfully understand the actual
adverse immigration consequences of the conviction because his
counsel misadvised him, and the sentencing court gave a
contradictory advisement. He also contends that he would not
have agreed to the plea if he had understood, and thus the trial
court erred in denying the motion. As we find that defendant’s
undisputed evidence demonstrated a reasonable probability that
if he had been properly advised of the immigration consequences
of his plea, he would not have pled no contest to an offense
requiring mandatory deportation, we reverse the order and
remand with directions to the trial court to grant the motion and
vacate the conviction pursuant to section 1473.7, subdivision (e).
BACKGROUND
Defendant’s plea and conviction
On January 26, 2017, defendant was charged by felony
complaint with inflicting corporal injury on his spouse, in
violation of section 273.5, subdivision (a). The complaint also
alleged pursuant to section 12022.7, subdivision (c) that
defendant inflicted great bodily injury on the victim. The
probation report explained that defendant and his wife, Jessica
Martinez began arguing while dining and intoxicated. Arguing in
the parking lot of the restaurant, defendant punched his wife in
the face twice and threw her to the pavement, where she struck
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
2
her face and head. Another couple intervened, and police were
called. Martinez was treated at the hospital and released. She
told the probation officer that she and defendant had been
together for 14 years, married for three, and together they were
raising one child in common and her three children. She denied
any prior instances of domestic violence or other issues in their
relationship and did not want a restraining order.
Three months later, on April 26, 2017, defendant waived
preliminary hearing and negotiated a plea agreement under
which he would plead no contest to the charge and admit the
special allegation in exchange for a suspended imposition of
sentence, conditioned upon 365 days in county jail, five years of
felony probation, a protective order, 52 weeks of domestic
violence classes and fines. After questions relating to defendant’s
understanding of the terms and conditions, the court asked
defendant, “. . . I don’t know if this applies to you or not. I don’t
need to know. I just need to advise you that if you’re not a citizen
of the United States, your plea of no contest will result in your
deportation, denial of naturalization, denial of citizenship, denial
of reentry into the country.” The court then asked, “Do you
understand that?” and defendant replied, “Yes, Your Honor.”
The trial court also asked about the plea form that
defendant had initialed and signed. Defendant was asked
whether he had signed and dated the form and initialed the
boxes, and whether he had read, understood, considered and gone
over with his attorney each of the constitutional rights that he
would be waiving and the consequences of his plea. Defendant
agreed that he had. The trial court accepted the plea, sentenced
defendant on June 16, 2017, as agreed and struck the great
bodily injury allegation.
3
In March 2021, defendant’s request to modify probation
and for early termination was denied, and in November 2021, his
request for a nunc pro tunc order reducing the jail time imposed
to 364 days was denied.2
Section 1473.7 and related legal principles
In 2018, the Legislature passed Assembly Bill No. 2867
(2017-2018 Reg. Sess.), amending section 1473.7 effective
January 1, 2019, and declaring that section 1473.7 “shall be
interpreted in the interests of justice and consistent with the
findings and declarations made in Section 1016.2 of the Penal
Code.” (Stats. 2018, ch. 825, § 1(c).) Among other things, section
1016.2 provides:
“(g) The immigration consequences of criminal
convictions have a particularly strong impact in
California. One out of every four persons living in the
state is foreign-born. One out of every two children
lives in a household headed by at least one foreign-
born person. The majority of these children are
United States citizens. It is estimated that 50,000
parents of California United States citizen children
were deported in a little over two years. Once a
2 “[W]hen, as in the present case, the parties negotiate a plea
agreement that, among other express provisions, grants
probation incorporating and conditioned upon the service of a
specified jail term, the resulting term of incarceration is not—and
may not be treated as—a mere standard condition of probation.
Rather, the term of incarceration is in the nature of a condition
precedent to, and constitutes a material term of, the parties’
agreement. As such, the jail term is not subject to subsequent
modification without the consent of both parties, and cannot be
altered solely on the basis of the trial court’s general statutory
authority to modify probation during the probationary period.”
(People v. Segura (2008) 44 Cal.4th 921, 935, fn. omitted.)
4
person is deported, especially after a criminal
conviction, it is extremely unlikely that he or she ever
is permitted to return.
“(h) It is the intent of the Legislature to codify
Padilla v. Kentucky [(2010) 559 U.S. 356] and related
California case law and to encourage the growth of
such case law in furtherance of justice and the
findings and declarations of this section.” (Italics
added.)
Accordingly, “defense counsel [must] provide affirmative
and competent advice to noncitizen defendants regarding the
potential immigration consequences of their criminal cases [and]
must investigate and advise regarding the immigration
consequences of the available dispositions . . . .” (§ 1016.2, subd.
(a).)
As our Supreme Court stated in People v. Vivar (2021) 11
Cal.5th 510 (Vivar), Padilla explained that “[b]ecause the
prospect of deportation ‘is an integral part,’ and often even ‘the
most important part,’ of a noncitizen defendant’s calculus in
responding to certain criminal charges [citation], both the
Legislature and the courts have sought to ensure these
defendants receive clear and accurate advice about the impact of
criminal convictions on their immigration status, along with
effective remedies when such advice is deficient.” (Vivar, supra,
at p. 516, quoting and citing inter alia, Padilla v. Padilla, supra,559 U.S. at pp. 360, 364 (Padilla).)
As relevant here, section 1473.7 authorizes a defendant
who is no longer in criminal custody to file a motion to vacate a
conviction or sentence where “[t]he conviction or sentence is
legally invalid due to prejudicial error damaging the moving
party’s ability to meaningfully understand, defend against, or
5
knowingly accept the actual or potential adverse immigration
consequences of a conviction or sentence.” (§ 1473.7, subd. (a)(1).)
The statute provides that “[a] finding of legal invalidity
may, but need not, include a finding of ineffective assistance of
counsel.” (§ 1473.7, subd. (a)(1).) Thus, although the motion to
vacate may be based on errors by counsel, the moving party need
not demonstrate ineffective assistance under the Sixth
Amendment principles enunciated in Strickland v. Washington
(1984) 466 U.S. 668, 688. (People v. Camacho (2019) 32
Cal.App.5th 998, 1008 (Camacho).)
Section 1473.7 requires a court to “vacate a conviction or
sentence upon a showing, by a preponderance of the evidence, of
‘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.’ (§ 1473.7, subds. (e)(1),
(a)(1).) . . . [Citation.] If the motion is meritorious, ‘the court
shall allow the moving party to withdraw the plea.’ (Id., subd.
(e)(3).)” (Vivar, supra, 11 Cal.5th at p. 523.)
Immigration consequences of a section 273.5 conviction
Under federal law, a noncitizen convicted of a crime of
domestic violence is deportable. (8 U.S.C. § 1227, (a)(2)(E)(i).) A
crime of violence for which the term of imprisonment is at least
one year is an “aggravated felony.” (8 U.S.C. § 1101(a)(43)(F).) A
noncitizen who is convicted of an aggravated felony at any time
after admission is conclusively presumed deportable and is
subject to mandatory removal. (8 U.S.C. § 1228(c); see id.,§ 1227(a)(2)(A)(iii).) An aggravated felony conviction renders a
noncitizen “ineligible for cancellation of removal, a form of
discretionary relief allowing some deportable aliens to remain in
the country. See [8 U.S.C. §] 1229b(a)(3), (b)(1)(C). Accordingly,
6
removal is a virtual certainty for an alien found to have an
aggravated felony conviction, no matter how long he has
previously resided here.” (Sessions v. Dimaya (2018) 584 U.S. __[138 S.Ct. 1204, 1210-1211].) A violation of Penal Code section
273.5, subdivision (a) is a crime of violence. (Banuelos-Ayon v.
Holder (9th Cir. 2010) 611 F.3d 1080, 1083, 1085.) It is thus an
“aggravated felony” if it carries term of imprisonment of at least
one year. (8 U.S.C. § 1101(a)(43)(F).)
As relevant here, section 273.5, subdivision (a) provides:
“Any person who willfully inflicts corporal injury resulting in a
traumatic condition upon [the offender’s spouse] is guilty of a
felony [which is punishable] by imprisonment in the state prison
for two, three, or four years, or in a county jail for not more than
one year . . . .” Section 273.5, subdivision (a) is known as a
wobbler. (People v. Jackson (2000) 77 Cal.App.4th 574, 576.) It
is thus punishable either as a felony or a misdemeanor in the
discretion of the sentencing court. (People v. Vessell (1995) 36
Cal.App.4th 285, 288.) Where an offense is a wobbler and the
court suspends imposition of sentence and grants probation, as
the sentencing court did here, the offense is deemed a felony
unless and until the court subsequently reduces it to a
misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877, 890.)
If not reduced, the offense remains “a felony for all purposes until
judgment or sentence and if no judgment is pronounced it
remains a felony [citations].” (People v. Esparza (1967) 253
Cal.App.2d 362, 364-365.)
However, “whether a state classifies an offense as a
‘misdemeanor’ is irrelevant to determining whether it is an
‘aggravated felony’ for purposes of federal law.” (Habibi v. Holder
(9th Cir. 2011) 673 F.3d 1082, 1088.) For a crime of violence the
determinative factor is “‘the term of imprisonment [of] at least
7
one year.’ 8 U.S.C. § 1101(a)(43)(F).” (Arellano Hernandez v.
Lynch (9th Cir. 2016) 831 F.3d 1127, 1132.)3 Moreover, it does
not matter that defendant was not sentenced to prison or even
that no sentence was imposed, as “‘[a]ny reference to a term of
imprisonment or a sentence with respect to an offense is deemed
to include the period of incarceration or confinement ordered by a
court of law regardless of any suspension of the imposition or
execution of that imprisonment or sentence in whole or in part.’
[8 U.S.C.] § 1101(a)(48)(B).” (Arellano Hernandez, at pp. 1132-
1133.) Thus, a suspended imposition of sentence and a grant of
probation conditioned upon one year (365 days) in jail will render
a violent crime an aggravated felony.
Defendant’s section 1473.7 motion4
In January 2022, defendant filed a motion under section
1473.7 to have his conviction vacated. In support of the motion,
defendant submitted his declaration as well as the declarations of
Attorney Erick Munoz, who represented him at the time of his
plea, and an immigration attorney regarding federal law.5
3 “[F]or purposes of [8U.S.C.] § 1101(a)(43)(F), a sentence of
365 days qualifies as a ‘term of imprisonment [of] at least one
year’ . . . .” (Habibi v. Holder, supra, 673 F.3d at p. 1088.)
4 The motion was heard by the Honorable LaRonda McCoy,
who was not the judge who presided over defendant’s 2017 plea
and conviction.
5 Munoz’s declaration was signed, but not under penalty of
perjury. The clerk’s transcript contains page 1 of defendant’s
declaration, which ends with paragraph 6 at the bottom of the
page. There is no page 2. The People indicate that the signature
page with defendant’s verification was omitted from the record.
If it was not before the trial court, the prosecutor did not object
8
Attached exhibits included letters of support from his wife, a
United States citizen, his stepdaughters, in-laws, a niece, friends,
and employer. Also attached were his marriage certificate, the
birth certificates of his United States citizen children and
stepchildren, and other exhibits documenting his longtime
residence in the United States, including that he had become a
lawful permanent resident of the United States in 2014.
In his declaration defendant averred that he was born in
Mexico in 1979, came to the United States as a child with his
parents in 1992, grew up in Los Angeles, met his wife in 2003,
and they raised six children together.6 Defendant declared he
had complied with all conditions of probation, including fees and
all classes, and that he was detained by Immigration and
Customs Enforcement (ICE), summoned to deportation
proceedings due to conviction of an aggravated felony, and was
currently incarcerated at a detention facility in Aldelato,
California. Defendant described his plea experience as follows:
“On April 26, 2017, my attorney Erick Munoz
brought a plea deal offer from the District Attorney
and thereby waived the irregularity. (See People v. Johnson
(2013) 222 Cal.App.4th 486, 493.) In any event, the trial court
did not deny the motion for this reason, nor even mention the
problem. Motion counsel told the court that he had expected to
offer testimony at a later scheduled hearing on the section 1473.7
motion and that this hearing, which took place just one week
after the motion was filed, was a hearing on a request for nunc
pro tunc resentencing. The trial court disagreed and ruled on the
1473.7 motion without hearing testimony. Defendant does not
assign error to the court’s refusal to set the matter for a later
hearing.
6 In her letter of support Martinez stated that their six
children were two of his, three of hers, and one of theirs together.
9
for me to plead no contest to the charge of domestic
violence and serve 364 days [in] county jail.
Mr. Munoz took me into the hallway outside the
courtroom and had me sign and initial a document
regarding my plea. Mr. Munoz had me sign a part of
the form labeled, ‘immigration consequences.’ I did
not read that portion, but I asked Mr. Munoz if my
green card would be affected by the plea. Mr. Munoz
told me that if I completed the probation and reduced
the felony to a misdemeanor, then I could keep my
green card. Mr. Munoz did not tell me that the felony
domestic violence would be an aggravated felony and
result in mandatory deportation. When we got into
the courtroom with the Judge and the Prosecutor, I
heard them say the sentence of 365 days.
“. . . Had I known that my guilty plea would
certainly render me deported from the United States,
I would have chosen to take my chances with a jury
verdict or seek an alternate plea deal at the least. I
had my wife and children and my right to be in the
United States permanently. I would have risked a
jury verdict [to] save myself from deportation. I
know no other life than my life here in the United
States. I would have taken additional jail or prison
time in order to avoid deportation as well. I am
willing to take additional time of incarceration even
now to avoid deportation.”
Defendant declared that his only prior arrest was for
driving under the influence of alcohol.
In his declaration, Attorney Munoz stated that he did not
recall the case, but it was “likely possible” that he told defendant
that immigration consequences would be avoided with a sentence
of 364 days or with a reduction to a misdemeanor after
completion of probation, and that it was also “likely possible” that
10
he did not request alternate pleas such as violations of section
136.1 or 236.
The prosecutor did not oppose the motion, which was
argued and denied on January 21, 2022. At the hearing, the
prosecutor told the court that her supervisor had no objection to
reducing the time in custody to 364 days (as defendant had
unsuccessfully requested in November 2021).7 Defense counsel
clarified that the motion was to vacate the judgment under
section 1473.7, and in the ensuing discussion with the court,
counsel explained Munoz’s erroneous advice, defendant’s
misunderstanding, and his statement that he would not have
taken the plea bargain. During the discussion the court stated:
“Counsel, I think we’re getting beyond the scope of what this
motion is about. I understand that there are reasonable
alternatives that would not lead to deportation. I get all of that.
The only . . . issue before the court is what the advisements
were.” The court continued: “If you’re talking about ineffective
assistance of counsel, that’s a different issue. That’s not a 1473.7.
The question is, was he properly advised? And the answer is,
yes, he was properly advised.”8
7 See footnote 2, ante, and People v. Segura, supra, 44
Cal.4th at page 935.
8 When it denied the motion, the trial court was required to
specify the basis for its conclusion (§ 1473.7, subd. (e)(4)). Here
the trial court’s basis was unclear. Early in the hearing the court
stated, “The only issue the court is focused on is what the
attorney said, what his understanding was, what the court
advised, et cetera.” However, we discern no focus by the trial
court on defendant’s understanding. We infer from the court’s
comments that its ruling was based upon a finding that
11
The prosecutor did not oppose the motion. Nevertheless,
the motion was denied by the court.9
Defendant filed a timely notice of appeal.
DISCUSSION
I. Timeliness of motion
Defendant was still on probation (until June 15, 2022)
when he filed his motion in January 2022. The People’s sole
contention in opposition to this appeal is that the order denying
the motion must be affirmed because it was prematurely filed
when defendant was still on probation, as a motion under section
1473.7 is available only to a person who is no longer in criminal
custody. (See § 1473.7, subd. (a).) The People rely on People v.
Cruz-Lopez (2018) 27 Cal.App.5th 212, 220-221, and People v.
DeJesus (2019) 37 Cal.App.5th 1124, 1130-1131, which held that
a person on parole or probation for the subject offense is in
“constructive custody” for purposes of a section 1473.7 motion.
The People suggest that these two cases require affirming the
denial of defendant’s premature motion regardless of the lower
court’s reasoning. However, in the cited cases the appellate
courts reviewed the denial of the premature motions on the
merits, as the lower courts had done. (People v. De Jesus, supra,
at pp. 1132-1137; People v. Cruz-Lopez, supra, at pp. 222-224.)
Therefore we do not read them as providing authority for
defendant had been properly advised by counsel and the court at
the time of the plea.
9 “If the prosecution has no objection to the motion, the court
may grant the motion to vacate the conviction or sentence
without a hearing.” (§ 1473.7, subd. (d).)
12
affirming the denial of the motion based solely on its premature
filing.
The trial court here heard the motion and decided it on the
merits without mention of the time requirement. Nor did the
prosecutor object to the motion or raise any issue of timeliness.
The People have not cited any authority indicating that section
1473.7, subdivision (a) limited the trial court’s jurisdiction, and
as defendant was still on probation, the trial court did not lack
fundamental jurisdiction over the subject matter and the parties.
(People v. Chavez (2018) 4 Cal.5th 771, 780; see § 1203.2.) “When
a trial court fails to act within the manner prescribed by
[statute], it is said to have taken an ordinary act in excess of
jurisdiction. [Citation.] Such ‘ordinary’ jurisdiction, unlike
fundamental jurisdiction, can be conferred by the parties’
decisions—such as a decision not to object to any perceived
deficiency—and so is subject to defenses like estoppel, waiver,
and consent.” (Chavez, at p. 780.)
“Whether the party should be estopped depends on a
weighing of equities in the particular case, the effect of estoppel
on the functioning of the courts, and considerations of public
policy.” (People v. Ford (2015) 61 Cal.4th 282, 287, citing In re
Griffin (1967) 67 Cal.2d 343, 348.) When the Legislature
amended section 1473.7, it “explicitly stated its intended purpose
was to make relief more broadly available to deserving
defendants, given the critical interests at stake.” (Vivar, supra,
11 Cal.5th at p. 525.) As relevant here, it is the express public
policy of this state and the United States to avoid the harmful
impact of deportation of foreign-born residents and their families,
particularly their United States citizen children, based upon
incorrect or insufficient information. (§ 1016.2, subds. (g), (h);
13
Vivar, supra, at p. 516; see Padilla, supra, 559 U.S. at pp. 360,
364.)
Given the circumstances, here, including the lack of
objection from the prosecutor, the fact that the expiration of
defendant’s probation was just five months away, allowing that if
the prosecutor had objected, the trial court could have either
dismissed without prejudice or continued the matter to a suitable
time after that. (See In re Griffin, supra, 67 Cal.2d at p. 349.)
We conclude that public policy supports going forward. We do not
discern that the irregularity substantially affected the
functioning of the courts, and we find that the prosecutor
impliedly consented to the hearing on the premature motion. We
thus reject the People’s contention.
II. Erroneous advice and defendant’s misunderstanding
Defendant contends that his defense counsel misadvised
him by saying he would not be deported if his offense were later
reduced to a misdemeanor, and that the sentencing court
misadvised him by stating that the deportation consequences
may not apply to him. He asserts that he misunderstood the
immigration consequences of the plea and would not have agreed
to it if he had correctly understood them.
Defendant may be entitled to relief under section 1473.7 by
showing that he accepted a plea due to an error that damaged his
“‘ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences’ of the plea. (§ 1473.7, subd. (a)(1).)” (Vivar, supra,
11 Cal.5th at p. 528.) As the facts supporting defendant’s motion
derive entirely from written declarations and other documents,
and the trial court did not make credibility or other factual
findings, we independently review the denial of the 1473.7
14
motion. (Vivar, at pp. 525-529; see People v. Lopez (2022) 83
Cal.App.5th 698, 710-711 (Lopez).)
Munoz stated that it was likely (and) possible that he told
defendant that “if he completed probation and reduced the felony
to a misdemeanor that his conviction would no longer be
deportable because it would be a misdemeanor with a maximum
sentence of 364 days in jail.” It is probable that Munoz gave
defendant this advice, as he did not deny doing so. From that
defendant brought the unsuccessful motion in November 2021 for
a nunc pro tunc order reducing the jail time imposed to 364 days.
Even if the trial court had retroactively reduced
defendant’s felony conviction to a misdemeanor and if defendant’s
motion to reduce the jail time imposed to 364 days had been
successful, it may not have changed his immigration status.
“[F]ederal immigration law does not recognize a state’s policy
decision to expunge (or recall or reclassify) a valid state
conviction. ‘A conviction vacated for reasons “unrelated to the
merits of the underlying criminal proceedings” may be used as a
conviction in removal proceedings whereas a conviction vacated
because of a procedural or substantive defect in the criminal
proceedings may not.’” (Prado v. Barr (9th Cir. 2020) 949 F.3d
438, 441.) Thus, “‘[a] conviction vacated for rehabilitative or
immigration reasons remains valid for immigration purposes, . . .
one vacated because of procedural or substantive infirmities does
not.’” (Camacho, supra, 32 Cal.App.5th at p. 1005.) A retroactive
reduction of the maximum misdemeanor sentence to 364 days
under section 18.5 would have no effect, as section 18.5 was
enacted by the California Legislature for the purpose of
mitigating mandatory removal under federal law. (See
Velasquez-Rios v. Wilkinson (9th Cir. 2021) 988 F.3d 1081,
15
1089.)10 “It is clear that federal statutes can specify when
removal is permissible and also when a cancellation of removal is
warranted. [T]hose federal law standards cannot be altered or
contradicted retroactively by state law actions, and cannot be
manipulated after the fact by state laws modifying sentences that
at the time of conviction permitted removal or that precluded
cancellation.” (Velasquez-Rios, at p. 1089.)11
We agree that defendant was misadvised, and the evidence
supports his claim that he believed he would not be subject to
adverse immigration consequences if he later had the offense or
time in custody reduced and that he was able to do so. As no
evidentiary objections were made to the evidence and the People
have proffered no argument in opposition to the merits of the
motion, the uncontroverted evidence has established a reasonable
basis for his erroneous belief. The errors thus damaged
defendant’s “‘ability to meaningfully understand, defend against,
or knowingly accept the actual or potential adverse immigration
consequences of [his] plea of’ nolo contendere. (§ 1473.7, subd.
10 Section 18.5 provides that “[e]very offense which is
prescribed by any law of the state to be punishable by
imprisonment in a county jail up to or not exceeding one year
shall be punishable by imprisonment in a county jail for a period
not to exceed 364 days.” Despite the term “every offense” it
applies to misdemeanors. (See Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 1310 (2013-2014 Reg. Sess.) as
introduced Feb. 21, 2014, p. 2.)
11 Thus immigration consequences may have been avoided if
the offense had been declared a misdemeanor with custody of 364
days or less imposed at the time of defendant’s plea and
conviction. (See People v. Manzanilla (2022) 80 Cal.App.5th 891,
907.)
16
(a)(1); see Camacho, supra, 32 Cal.App.5th at p. 1009;
[citations].)” (Lopez, supra, 83 Cal.App.5th at p. 713.)
III. Prejudice
“What someone seeking to withdraw a plea under section
1473.7 must show is more than merely an error ‘damaging [his]
ability to meaningfully understand, defend against, or knowingly
accept the actual or potential adverse immigration consequences’
of the plea. (§ 1473.7, subd. (a)(1).) The error must also be
‘prejudicial.’” (Vivar, supra, 11 Cal.5th at p. 528.) “[S]howing
prejudicial error under section 1473.7, subdivision (a)(1) means
demonstrating a reasonable probability that the defendant would
have rejected the plea if the defendant had correctly understood
its actual or potential immigration consequences.” (Id. at p. 529.)
In assessing whether the defendant has shown that reasonable
probability, we consider the totality of the circumstances. (Ibid.)
We independently review not only questions of law: “Ultimately it
is for the appellate court to decide, based on its independent
judgment, whether the facts establish prejudice under section
1473.7.” (Id. at p. 528.) In assessing defendant’s showing, we
also focus on what defendant would have done, not whether he
would have achieved a more favorable result. (Id. at pp. 528-
529.)
Defendant stated that because his wife and children were
here and he knew no life other than in the United States, he
would have risked trial and additional jail or prison time in order
to avoid deportation; and that he was still willing to take
additional incarceration time to avoid deportation.
It is not enough for defendant simply to declare that he
would not have accepted any plea that would result in
deportation; he must corroborate such assertions with objective
evidence. (Vivar, supra, 11 Cal.5th at p. 530.) Particularly
17
relevant corroboration is evidence of the defendant’s ties to the
United States. (Id. at pp. 529-530, citing Jae Lee v. United States
(2017) 582 U.S. __ [137 S.Ct. 1958, 1967-1969] and People v.
Martinez (2013) 57 Cal.4th 555, 568.) In Vivar, the defendant’s
ties to the United States were considerable, as he “was brought to
this country at age six as a lawful resident, and he attended
schools, formed a family, and remained here for 40 years. At the
time of his plea, he had two children, two grandchildren, and a
wife, all of whom are citizens and all of whom resided in
California. By the time he was deported, his wife was undergoing
radiation treatment for a thyroid condition.” (Vivar,. at p. 530.)
In the California Supreme Court’s view, “these objective and
contemporaneous facts corroborate, in a most convincing way, the
statement in Vivar’s declaration that he ‘would never have
plead[ed g]uilty’ if his attorney had informed him of the plea’s
consequences.” (Id. at p. 531.)
The Vivar court pointed to People v. Mejia (2019) 36
Cal.App.5th 859 and Camacho, supra, 32 Cal.App.5th 998 as
other examples providing convincing corroboration of the
defendant’s claim that he would not have taken the plea deal.
(Vivar, supra, 11 Cal.5th at pp. 530-531.) In Camacho, the
defendant was brought to the United States from Mexico as a
child, attended school through high school in Los Angeles County,
married a United States citizen, had one American citizen child
at the time of his plea and two at the time of his motion, was
employed, and had no other adult criminal convictions.
(Camacho, supra, pp. 1011-1012.) In Mejia, the defendant came
to the United States at age 14 from Mexico to be with his six
siblings, mother, and other family members except his father,
and within three days, was working in his brother’s paint shop.
(People v. Mejia, supra, at p. 864.) At the time of his guilty plea,
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he was 22 years old, married with an infant child, and had a
steady job, and no ties to Mexico, as his father had died. (Ibid.)
At the time of his section 1473.7 motion, his two children were
grown, and he was still married to his wife. (People v Mejia, at
p. 865.)
Here, too, defendant’s ties to the United States, which bear
similarities to Vivar and its two examples, provide convincing
corroboration of defendant’s claim that if he had correctly
understood the consequences of his plea, he would have risked
trial and additional jail or prison time in order to avoid
deportation, and was still willing to take additional time of
incarceration to avoid deportation. Defendant was born in
Mexico in 1979, came to the United States as a child with his
parents, attended middle and high school in Los Angeles, met his
United States citizen wife in 2003, later married her and became
a lawful permanent resident, raised six children with her, all
United States citizens. They remain married. His single prior
offense was driving under the influence of alcohol. In addition to
defendant’s deep ties to the United States, his minimal
experience with the criminal justice system, his legal residency,
as well as the support from family, friends, and his employer also
corroborate his claim that his ability to remain in the United
States with his family was a paramount concern. (See People v.
Lopez, supra, 83 Cal.App.5th at p. 715.)
In our independent judgment after viewing the totality of
the circumstances, we find that defendant’s uncontradicted
evidence has established by a preponderance of the evidence that
due to his counsel’s misadvisement and inadequate research,
coupled with the sentencing court’s confusing and contradictory
advisement that its warning of certain deportation might not
apply to him, he misunderstood the dire immigration
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consequences that would follow from his plea. It is also
reasonably probable that he would have rejected the plea had he
correctly understood its actual immigration consequences. We
conclude that defendant has thus established prejudicial error
such that he is entitled to relief under section 1473.7.
DISPOSITION
The order denying the motion to vacate defendant’s
conviction is reversed and the matter is remanded to the superior
court with instructions to grant the motion and to vacate the
conviction.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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