People v. Villa CA5 ( 2023 )

Filed 5/31/23 P. v. Villa CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085202
Plaintiff and Respondent,
(Super. Ct. No. VCF212391A)
v.
ALMA ROSAS VILLA, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Tulare County. Melinda Myrle
Reed, Judge.
Law Office of Hristo Bijev and Hristo Bijev for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina
Petrushenko, for Plaintiff and Respondent.
-ooOoo-
Defendant Alma Rosas Villa appeals the denial of a motion under Penal Code
section 1473.7, subdivision (a)(1)1 to vacate her 2008 plea of no contest to felony welfare
1 Undesignated statutory references are to the Penal Code.
fraud. The trial court determined Alma failed to prove (1) she did not meaningfully
understand the immigration consequences of her plea and (2) her error was prejudicial.
We decide whether Alma established a prejudicial error in her understanding of the
immigration consequences by applying the independent standard of review adopted in
People v. Vivar (2021) 11 Cal.5th 510 (Vivar) and confirmed in People v. Espinoza
(2023) 14 Cal.5th 311 (Espinoza) to the cold record presented to the trial court.
First, the Attorney General has conceded the trial court erred in finding Alma
meaningfully understood the adverse immigration consequences of her plea based on a
section 1016.5 advisement that the conviction may have the consequences of deportation,
exclusion from admission to the United States, or denial of naturalization. Based on our
independent review of the record, we agree. The evidence establishes it is more likely
than not that Alma did not meaningfully understand and accept the immigration
consequences of her plea. We follow Espinoza and several older cases that conclude the
section 1016.5 advisement that the conviction may have adverse immigration
consequences does not establish that the defendant meaningfully understood the
mandatory immigration consequences of a plea.
Second, applying the independent review standard to the issue of prejudice, we
find there is reasonable probability that Alma would have rejected the plea if she had
correctly understood the adverse immigration consequences. At the time of the 2008
plea, she had lived in the United States since arriving in 1994 and had two daughters,
then nine and six years old, who were United States citizens. The reasonable probability
standard is met because this objective evidence of her ties to the United States adequately
corroborates her declaration testimony addressing prejudice.
We therefore reverse the order denying the section 1473.7 motion.
2.
FACTS
Personal Ties
Alma was born in Mexico in November 1973 and came to the United States in
1994. She and Jose Torres Frausto, who was born in Mexico in 1968, have two
daughters and a son. The children were all born in the same Porterville hospital and they
are citizens of the United States. The daughters were born in March 1999 and March
2002. The son was born in February 2012, after the plea that is the subject of this appeal.
The record includes a copy of a California driver’s license issued to Alma in July 2017,
which contains an address near Porterville. It also includes a copy of the social security
and permanent resident cards of Amparo Torres De Frausto, who was born in Mexico in
1945. It is unclear from the record if Amparo is Jose’s mother or is otherwise related to
him.
Charges
In September 2008, investigators looking into a referral from the Health and
Human Services Agency of Tulare County conducted a taped interview of Alma at the
site of her employer. Alma reviewed documents with her signature, acknowledged her
responsibility to report income, and admitted she submitted documents to the agency that
failed to report earnings between 2004 and 2008.
In October 2008, a complaint was filed against Alma and Jose alleging felony
violations of Welfare and Institutions Code section 10980, subdivision (c)(2) (count 1-
welfare fraud) and Penal Code section 118 (count 2-perjury). The complaint alleged they
obtained aid for themselves and their family by means of false representations and, in
applying for renewal of aid, falsely stated they continued to meet the conditions for
eligibility. In December 2008, an amended complaint was filed, which increased the
allegation of the amount of public assistance fraudulently obtained to $18,194. The
probation report states $10,433 was for food stamps and $7,761 was cash aid.
3.
Plea Hearing
On December 3, 2008, a change of plea hearing was held. Alma was represented
by Kimberly Barnett, a deputy public defender, and Jose was represented by attorney
Tara Howard. Alma and Jose were assisted by a Spanish language interpreter. Each
attorney told the court that their client would enter a plea on count one, count two would
be dismissed, and the court had indicated a 180-day sentence with restitution. The court
then stated:
“All right. Each of you are advised that if you’re not citizens of this
country that conviction of this offense for which you’ve been charged may
have the consequences of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United
States.
“Within the last 24 hours, have either of you taken any drugs or alcohol or
medication of any kind that would affect your ability to understand these
proceedings today?” (Italics added.)
Alma and Jose answered, “No.” While the advisement of the potential
immigration consequences complied with section 1016.5, Alma and Jose were not asked
on the record if they understood the advisement. There are no signed or initialed plea
forms in the record.2
On December 23, 2008, the sentencing hearing was held. Alma and Jose appeared
at the hearing, were represented by counsel, and were assisted by an interpreter. The
probation report stated that Alma had begun making restitution, paying $100 toward the
food stamp balance and $100 toward the cash aid balance. It also stated the usual sources
had been checked and revealed no prior criminal conduct.
The court granted probation for three years subject to each defendant serving 180
days in custody, paying certain fines and fees, paying the full amount of restitution of
2 Section 1016.5 does not require trial courts to obtain a defendant’s oral statement
on the record that they understood the advisement or obtain a signed or initialed form
acknowledging a defendant received and understood the advisement.
4.
$18,194 (for which they would be jointly and severally liable), and fulfilling other
conditions of probation. Among other things, Alma was required to reside in Tulare
County, unless given written permission from her probation officer to reside elsewhere,
and to seek and maintain employment. Alma and Jose were given staggered remand
dates, with Alma reporting in January 2009 and Jose reporting the following June. The
immigration consequences of the convictions were not mentioned at the sentencing
hearing.
In 2021, Alma’s oldest daughter applied to the United States Citizenship and
Immigration Service to obtain a green card for Alma based on Alma being a parent of a
United States citizen. In response to the daughter’s form I-130, “Petition for Alien
Relative,” the Department of Homeland Security sent a notice dated September 28, 2021,
stating the form had been received and was being processed. In a notice dated July 29,
2022, the Department of Homeland Security stated the daughter’s “petition has been
approved” and described subsequent steps in the process. The notice also advised that
approval of the petition did not itself grant any immigration status and did not guarantee
that Alma subsequently would be found eligible for a visa, admission to the United
States, or an extension, change, or adjustment of status.
PROCEEDINGS
On September 1, 2022, Alma filed a motion to vacate conviction and withdraw
plea under section 1473.7. The motion referred to her daughter’s petition and the
Department of Homeland Security’s notices and asserted Alma was “in the process of
receiving her green card and her permanent immigration status so she can stay with her
children and family at home in California.” The motion was supported with a declaration
from Alma and copies of the reporter’s transcripts from the December 2008 plea and
sentencing hearings.
Alma’s declaration stated (1) she did not remember much of the case details
because many years had passed, (2) she was represented by a court-appointed attorney
5.
and had an interpreter, (3) she did not remember signing or initialing any papers at the
court, (4) she was nervous, afraid and confused when in court, and (5) she has no
memory of being told what the immigration consequences were or even hearing the word
immigration. Alma’s declaration asserts she did not fully and meaningfully understand
what the immigration consequences were and how they would affect her in the future
and, had she known of the future consequences (which include not being able to receive a
green card), she would have fought the case, would have consulted with an immigration
attorney to discuss different options, and would have asked for another resolution without
immigration consequences. Alma’s declaration also stated:
“I have been living in the US since 1994, paying taxes here and working
here and now I am facing the possibility of not receiving a green card and
living in exile for the rest of my life. I have 3 children [who] are United
States Citizens.”
The points and authorities filed with Alma’s motion to vacate expanded upon the
personal details contained in her declaration by asserting: “Defendant has been living
here for many years and her family does not have any place to go or live in Mexico.
They do not have a house or job or any means to survive in Mexico. Their life and whole
family are all here in the United States.” These assertions about the lack of connections
to Mexico were not set forth in Alma’s declaration.
On September 26, 2022 (two days before the scheduled hearing) the Tulare
County District Attorney’s Office (prosecutor) filed an opposition to the motion. No
declarations or other evidence was submitted with the opposition. Nonetheless, the
opposition asserted facts outside the record by stating Alma did not fully pay the
restitution and she had an outstanding balance of $283.00.
On September 27, 2022, Alma filed a reply that, among other things, referred to
cases that had addressed the effectiveness of an advisement that the conviction “may
have” adverse immigration consequences.
6.
At the September 28, 2022 hearing, Alma was present with her attorney. The trial
court noted that an interpreter was not present and stated it intended “to simply set the
matter over, giving the prosecutor an adequate time to evaluate the reply which was
untimely.” The court set a new hearing date and stated: “Defendant needs to be present.
Counsel needs to be present. And hopefully, parties will meet and confer before then to
discuss resolution.”3 The court also provided the following advice to Alma’s attorney:
“You should timely file your reply papers, Counsel. That would have been helpful. [¶]
In any event, now you’ll make the return trip.” Rather than point out that his reply had
been filed the day after the untimely opposition, Alma’s attorney said: “Thank you, your
Honor.” On October 6, 2022, the prosecutor filed a reply to Alma’s reply to the
opposition.
The October 11, 2022 hearing opened with the trial court stating: “Alma Villa,
with the interpreter, please. [¶] Defendant is present out of custody.” The court also
identified the attorneys appearing in the matter and trailed the hearing to allow the
attorneys time to meet and confer. When no resolution was reached and the hearing
resumed, the court stated the prosecutor’s reply to Alma’s reply was completely
inappropriate and the court did not consider it. The court then asked Alma’s counsel:
“[D]o you have any further comments on yours.” “Yours” appears to refer to his moving
and reply papers.4 The court then heard argument from both sides. Neither attorney
attempted to call Alma or any other witness.
At the conclusion of counsel’s argument, the trial court announced its rationale for
denying the motion. The court stated Alma had not proven an error occurred, noting
3 Alma’s counsel may have inferred from the court’s statement that Alma needed to
be present at the rescheduled hearing that the court intended to have Alma present oral
testimony at that hearing.
4 As suggested at oral argument, Alma’s counsel might have interpreted the
reference to “further comments” to be a directive from the court to present arguments,
rather than testimony from Alma.
7.
“[t]he transcript clearly shows that the Court properly advised [Alma] of the immigration
consequences under the code at the time of the plea.” The court also found Alma’s “self-
serving declaration on this issue inherently suspect based on her written claim that the
Judge did not tell her anything regarding the consequence when the record is clearly
contrary.”5 The court noted the absence of any testimony or declaration from Alma’s
plea counsel corroborating Alma’s testimony6 and the absence of “any evidence or
analysis from an immigration legal expert indicating that her conviction caused her to
become permanently ineligible from becoming a citizen at the time of her plea in 2008.”
The court also addressed Alma’s showing of prejudice and concluded she had not met her
burden of showing any error was prejudicial. Among the factors discussed by the court
were Alma’s ties to the United States. The court stated Alma’s “declaration is lacking
since there is nothing about how and why she came to the US, the persons with whom she
lived upon arrival, and her present family status, her employment history, or her good
citizenship.”7
Alma filed a timely appeal.
5 Applying the independent review standard, we interpret Alma’s declaration as a
whole rather than each sentence in isolation. Accordingly, we treat the sentence stating
that “I am sure that neither the Interpreter, Attorney or the Judge told me anything
regarding the immigration consequences” as being qualified by the next sentence, which
stated: “Many years have passed and I do not remember what happen[ed] in the Court.”
Consistent with this interpretation, Alma’s declaration also stated she did “not have any
memory of being told what the immigration consequences are and that I cannot receive a
green card” and that she did not “remember the Judge telling me anything regarding
immigration consequences or even the word immigration.” To summarize, we interpret
Alma’s statement about being “sure” to mean she was certain that she did not remember
being told anything about immigration consequences.
6 “A party seeking relief under section 1473.7 is not required to provide the
declaration of plea counsel.” (Espinoza, supra, 14 Cal.5th at p. 325, citing People v.
Manzanilla (2022) 80 Cal.App.5th 891, 909.)
7 Under the totality of the circumstances test, the absence of these particular details
is not determinative. In Espinoza, the court explained that “no single type of evidence is
a prerequisite to relief.” (Espinoza, supra, 14 Cal.5th at p. 321.)
8.
DISCUSSION
I. OVERVIEW OF SECTION 1473.7
In 2016, the Legislature considered the problems faced by defendants “who were
unaware of the immigration consequences posed by a plea entered many years earlier.”
(Vivar, supra, 11 Cal.5th at p. 523.) The Legislature adopted section 1473.7 to make
relief available “to certain immigrants who accepted pleas without understanding the
immigration-related consequences of such decisions.” (Vivar, supra, at pp. 523, 528.)
Section 1473.7, subdivision (a) provides in part:
“A person who is no longer in criminal custody may file a motion to vacate
a conviction or sentence [if] … : [¶] (1) The 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 conviction or sentence.
A finding of legal invalidity may, but need not, include a finding of
ineffective assistance of counsel.”
The moving party has the burden of proving, by a preponderance of the evidence,
the existence of grounds for relief. (§ 1473.7, subd. (e)(1); see Vivar, supra, 11 Cal.5th at
p. 517.) “[T]he moving party shall also establish that the conviction or sentence being
challenged is currently causing or has the potential to cause removal or the denial of an
application for an immigration benefit, lawful status, or naturalization.” (§ 1473.7, subd.
(e)(1).) When a motion to vacate a conviction is granted, “the court shall allow the
moving party to withdraw the plea.” (§ 1473.7, subd. (e)(3).)
“A successful section 1473.7 motion requires a showing, by a preponderance of
the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully
understand the actual or potential immigration consequences of a plea.” (Vivar, supra, 11
Cal.5th at p. 517.) To establish an error was prejudicial for purposes of section 1473.7,
“a defendant must demonstrate a ‘reasonable probability that the defendant would have
rejected the plea if the defendant had correctly understood its actual or potential
immigration consequences.’ ” (Espinoza, supra, 14 Cal.5th at p. 316.) Furthermore, the
9.
defendant’s assertions about rejecting the plea bargain must be corroborated by objective
evidence. (Ibid.) “Objective evidence includes facts provided by declarations,
contemporaneous documentation of the defendant’s immigration concerns or interactions
with counsel, and evidence of the charges the defendant faced.” (Id. at p. 321.)
Appellate court’s apply independent review when assessing whether a defendant
has demonstrated a prejudicial error. (Vivar, supra, 11 Cal.5th at p. 526.) Under this
standard of review, an appellate court exercises its independent judgment to determine
whether the facts satisfy the applicable rule of law. (Id. at p. 527.) When, as here, a trial
court’s factual findings are derived entirely from written declarations, transcripts, and
other documents (i.e., a cold record), the trial court and appellate courts are in the same
position and deference to the trial court’s findings is unwarranted. (Id. at p. 528.) In
such cases, “ ‘it is for the appellate court to decide, based on its independent judgment,
whether the facts establish prejudice under section 1473.7.’ ” (Espinoza, supra, 14
Cal.5th at p. 320.)
II. THE HEARING ON THE MOTION
A. No Requirement for Live Testimony
Alma’s opening brief raises the procedural issue of whether a trial court must
conduct an evidentiary hearing and receive a defendant’s testimony before denying a
section 1473.7 motion. Alma contends that if an evidentiary hearing is required, this case
should be remanded to the trial court for such a hearing. Alma’s brief states she did not
find any case addressing this specific issue and discusses People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183 (Zamudio), a case involving a motion to withdraw a
plea pursuant to section 1016.5, subdivision (a). In Zamudio, the court addressed
whether the trial court abused its discretion by denying a further evidentiary hearing and
deciding the motion based on the parties’ written submissions. (Zamudio, supra, at p.
201.) The court stated:
10.
“Petitioner cites no authority specifically requiring courts to hold live
evidentiary hearings on section 1016.5 motions or, more generally, on plea
withdrawal motions. On the other hand, California law affords numerous
examples of a trial court’s authority, in ruling upon motions, to resolve
evidentiary disputes without resorting to live testimony.” (Ibid.)
As a result, the court stated it would not “burden trial courts with a requirement
that they conduct live evidentiary hearings on all section 1016.5 motions.” (Zamudio,
supra, 23 Cal.4th at p. 201.)
Section 1473.7 includes a provision explicitly addressing hearings, which states:
“All motions shall be entitled to a hearing. Upon the request of the moving
party, the court may hold the hearing without the personal presence of the
moving party provided that it finds good cause as to why the moving party
cannot be present. 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).)
This language plainly requires a hearing be held on a section 1473.7 motion,
except when there is no objection to the motion and the court grants the motion. (See
People v. Fryhaat (2019) 35 Cal.App.5th 969, 977.) The phrase “entitled to a hearing”
does not explicitly require the trial court to conduct an evidentiary hearing at which live
testimony is taken. Based on the text and the case law existing at the time section 1473.7
was enacted, which allowed plea withdrawal motions to be decided without taking live
testimony, we will not infer the Legislature intended to impose a sua sponte duty on trial
courts to hear live testimony at the hearing. (See Zamudio, supra, 23 Cal.4th at p. 201;
Code Civ. Proc., § 1858 [courts should not insert that which the Legislature has
omitted].) Interpreting the statute to mean there is no sua sponte obligation is compatible
with the following statement by our Supreme Court: “In addition to submitting
declarations, both parties are entitled to request an evidentiary hearing. (§ 1473.7, subd.
(d).)” (Espinoza, supra, 14 Cal.5th at p. 325.) Here, neither side asked, before or during
the hearing, to call a witness.
11.
B. Role of Moving Party’s Declaration
Alma’s opening brief also raises the issue whether the trial court is obligated to
accept and consider in full the moving party’s declaration. Alma contends that if her
declaration is accepted and given full force and effect, then she met her burden of proof
and it was an abuse of discretion to deny the motion.
Before the trial court heard from counsel at the October 11, 2022 hearing, the trial
court stated: “I have read and considered the moving papers from defendant, the
opposition papers from the People, and then defendant’s reply.” Alma’s moving papers
included her declaration. Therefore, we interpret the trial court’s statement that it read
and considered the moving papers to mean that the trial court read and considered (i.e.,
weighed) Alma’s declaration and the other exhibits to her motion. This interpretation is
confirmed by the trial court’s explicit references to the contents of the declaration.
Accordingly, we conclude the trial court did not violate its duty to consider the evidence
presented in support of the section 1473.7 motion. (See Espinoza, supra, 14 Cal.5th at p.
321 [objective evidence supporting a § 1473.7 motion “includes facts provided by
declarations”].) To the extent that Alma may be arguing the trial court was required to
accept the assertions of fact set forth in her declaration, we are aware of no authority
imposing such a requirement when a court evaluates whether the moving party has
carried his or her burden of proof or the credibility of a declaration’s contents. Therefore,
we conclude the trial court did not commit procedural error by failing to accept the truth
of the facts stated in Alma’s declaration.
On another procedural point, Alma’s motion must be deemed timely pursuant to
the general rule set forth in subdivision (b)(1) of section 1473.7 because the triggering
events identified in subdivision (b)(2) have not occurred. (See People v. Alatorre (2021)
70 Cal.App.5th 747, 756–757; People v. Perez (2021) 67 Cal.App.5th 1008, 1016.)
12.
III. DEFENDANT’S MISUNDERSTANDING
It is well established that a defendant’s own error in understanding the
immigration consequences of the plea is a basis for relief under section 1473.7,
subdivision (a)(1). (People v. Alatorre, supra, 70 Cal.App.5th at pp. 768–769; People v.
Mejia (2019) 36 Cal.App.5th 859, 871; People v. Camacho (2019) 32 Cal.App.5th 998,
1009.) In Alatorre, the court reviewed the case law and stated that “cases have uniformly
followed the lead of Camacho and Mejia, concluding that a petitioner’s own subjective
error qualifies for relief under the statute if the evidence shows he or she misunderstood
the immigration consequences of a plea deal.” (Alatorre, supra, at p. 769.) Based on this
precedent, Alma need not prove that (1) the trial court erred in advising her of the
immigration consequences of her plea or (2) the deputy public defender provided
ineffective assistance during the plea process.
A. Immigration Consequences of the Conviction
The immigration consequences of a conviction depend on how the crime is
classified by federal law. Federal statute defines an offense involving fraud or deceit in
which the loss to the victim exceeds $10,000 as an aggravated felony. (8 U.S.C.
§ 1101(a)(43)(M)(i).) Welfare and Institutions Code section “10980(c)(2) contains an
inherent element of fraud or deceit and therefore is an aggravated felony.”
(Kesselbrenner & Rosenberg, 1 Immigration Law and Crimes (Winter Ed./2022) § 7:31,
p. 645; see De Gomez v. Holder (2012) 471 Fed.Appx. 591, 592 [welfare fraud is an
aggravated felony]; Ferreira v. Ashcroft (9th Cir.2004) 390 F.3d 1091, abrogated on
other grounds by Nijhawan v. Holder (2009) 557 U.S. 29.)
A person “who at any time has been convicted of an aggravated felony” shall not
be regarded as a person of good moral character. (8 U.S.C. § 1101(f)(8).) Thus, a person
convicted of an aggravated felony “cannot meet the good character requirement for
naturalization.” (E.g., Castiglia v. INS (9th Cir. 1997) 108 F.3d 1101, 1104.) In addition,
13.
a person convicted of an aggravated felony is ineligible for the discretionary forms of
relief, such as asylum. (Moncrieffe v. Holder (2013) 569 U.S. 184, 187.)8
Consequently, we conclude as a matter of law that Alma carried the burden of
demonstrating her conviction for welfare fraud has “the potential to cause … the denial of
an application for an immigration benefit, lawful status, or naturalization” for purposes of
subdivision (e)(1) of section 1473.7. The respondent’s brief filed by the Attorney
General concedes this point. Because the adverse immigration consequences are clearly
shown by federal statute and case law addressing welfare fraud convictions, a declaration
from an immigration attorney addressing the potential for adverse immigration
consequences is not necessary.
B. Effect of Section 1016.5 Advisement
During the December 2008 plea hearing, the trial court advised the defendants that
the conviction “may have the consequences of deportation, exclusion from admission to
the United States, or denial of naturalization pursuant to the laws of the United States.”
This oral advisement satisfied the court’s obligation under section 1016.5, subdivision
(a), which provides: “Prior to acceptance of a plea of guilty … to any offense punishable
as a crime under state law … the court shall administer the following advisement on the
record to the defendant: [¶] If you are not a citizen, you are hereby advised that
conviction of the offense for which you have been charged may have the consequences of
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.”
The trial court did not ask Alma if she understood the advisement, did not ask if
she had any questions about immigration consequences, and did not ask if she needed
8 Other courts have recognized that felony welfare fraud in violation of Welfare and
Institutions Code section 10980, subdivision (c)(2) constitutes a crime involving moral
turpitude for purposes of federal immigration law. (Valenzuela Garcia v. Holder (9th
Cir. 2012) 469 Fed.Appx. 551, 552; Casarez v. Holder (9th Cir. 2011) 425 Fed.Appx.
603.)
14.
additional time to discuss those consequences with her attorney.9 Thus, Alma’s
circumstances are similar to those presented in Espinoza, supra, 14 Cal.5th 311, another
case from Tulare County involving a plea entered in the first decade of this century.
There, the trial court gave the general advisement under section 1016.5 and our Supreme
Court stated “[i]t appears the court made no further inquiry into [the defendant’s]
understanding or offer to answer any questions he might have had.” (Espinoza, supra, at
p. 318.) The Supreme Court concluded Espinoza did not meaningfully understand the
immigration consequences of his plea despite the trial court providing a general
advisement under section 1016.5 that his conviction may have immigration
consequences. (Espinoza, supra, at p. 320.)
An important aspect of the advisement is its use of the words “may have.” These
words do not inform Alma that a mandatory immigration consequence was the denial of
naturalization. Before Espinoza and the trial court’s ruling in this case, decisions of the
Court of Appeal concluded the generic advisement in section 1016.5 was insufficient to
establish the defendant understood the mandatory immigration consequences of the
conviction. (E.g. People v. Lopez (2022) 83 Cal.App.5th 698, 712 [“advisement that
appellant may face certain adverse immigration consequences was insufficient to inform
appellant that the conviction would subject him to mandatory deportation and permanent
exclusion from the United States”]; People v. Soto (2022) 79 Cal.App.5th 602, 609;
People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065.) Consistent with the outcome in
Espinoza, we conclude the general advisement Alma was given at the time of her plea
does not establish she meaningfully understood and accepted the adverse immigration
consequences of her plea. (See People v. Patterson (2017) 2 Cal.5th 885, 889, 898 [a
9 Section 1016.5 does not require trial courts to ask these questions before accepting
a plea. Thus, we reiterate that, at the time of the plea, the trial court complied with the
requirements of section 1016.5. (See fn. 2, ante.) Nonetheless, the absence of these
questions is part of the surrounding circumstances relevant to evaluating a defendant’s
understanding at the time of the plea.
15.
§ 1016.5 advisement does not categorically bar a motion to withdraw the plea under
§ 1018 on grounds of mistake or ignorance].)
C. Alma’s Showing Regarding Her Misunderstanding
Next, we consider whether Alma had carried her burden of proof and
demonstrated she did not meaningfully understand the adverse immigration consequences
of her plea. (§ 1473.7, subd. (a)(1).) The Attorney General has conceded that Alma “has
established that she did not meaningfully understand the immigration consequences of
her plea.” While this concession is “significant” (see Espinoza, supra, 14 Cal.5th at p.
325), we nonetheless undertake an independent review of the record to confirm the
concession is warranted.
Direct evidence on this issue involving Alma’s state of mind is provided by her
declaration, which asserts: “At that time, I did not fully and meaningfully understand
what the immigration consequences were and how they would affect me in the future.
No one told me.” Alma’s assertion regarding immigration consequences is consistent
with the record, which contains nothing showing Alma was advised she was pleading to
an aggravated felony or a crime of moral turpitude and that conviction of such a felony or
crime would bar her from ever becoming a naturalized citizen. As described earlier, the
transcript of the plea hearing shows Alma was informed only of consequences that her
conviction “may have” and was not informed of the consequences that were mandatory in
her case. Also, the record contains no plea form signed or initialed by Alma.
Alma’s assertion also fits with the state of the law when the December 2008 plea
was entered—that is, before the United States Supreme Court decided Padilla v.
Kentucky (2010) 559 U.S. 356 (Padilla) and before the Legislature enacted sections
1016.2 and 1016.3. (See Stats. 2015, ch. 705, §§ 1, 2.) In 2008, there was no Sixth
Amendment obligation on the part of defense counsel to affirmatively advise a defendant
of the immigration consequences of a conviction. (See Chaidez v. United States (2013)
568 U.S. 342, 353.) Rather, most courts had determined that no such duty existed.
16.
(Ibid.) In Padilla, the United States Supreme Court changed the law and “held that the
Sixth Amendment requires defense counsel to provide affirmative and competent advice
to noncitizen defendants regarding the potential immigration consequences of their
criminal cases.” (§ 1016.2, subd. (a).) These and other historical developments in the
law were described in People v. Rodriguez (2021) 68 Cal.App.5th 301 (Rodriguez),
where the defendant challenged a 2005 conviction. (Id. at pp. 307–312.) The defendant
submitted a declaration from “the supervising attorney of the public defender’s office
where [Rodriguez’s] counsel was employed [which] stated that prior to the Padilla
decision in 2010, it was ‘not the common practice of defense counsel to research or
advise clients regarding the specific immigration consequences of a particular plea.’ ”
(Id. at p. 323.)
Based on our independent review of the record, we agree with the Attorney
General’s concession and conclude Alma established it is more likely than not that she
did not understand the mandatory immigration consequences of her plea.
IV. PREJUDICE
Alma also has the burden of proving her lack of understanding of the immigration
consequences of her plea was prejudicial—that is, it is reasonably probable that she
would have rejected the plea if she had correctly understood the immigration
consequences. (Vivar, supra, 11 Cal.5th at p. 529; see generally, People v. Watson
(1956) 46 Cal.2d 818, 836 [a “miscarriage of justice” has occurred when “it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error”].) The reasonable probability standard does not mean more
likely than not. (Rodriguez, supra, 68 Cal.App.5th at p. 324.) Instead, it means merely a
reasonable chance, which is more than an abstract possibility. (Ibid.) Stated another
way, a reasonable probability is a probability sufficient to undermine confidence in the
outcome. (Ibid.; Strickland v. Washington (1984) 466 U.S. 668, 694 [same].)
Confidence in an outcome is affected by the impact of being wrong on the various
17.
interests at stake, which include (1) the public’s interest in the finality of the judgment,
specific and general deterrence, restitution, and rehabilitation; (2) the defendant’s interest
in avoiding immigration consequences, which “may be by far the most serious penalty
flowing from the conviction”;10 (3) the interests of the defendant’s family members,
including United States citizen children; and (4) the interests of the community where the
defendant lives and works.11
In assessing whether a reasonable probability has been shown, courts must
consider the totality of the circumstances. (Espinoza, supra, 14 Cal.5th at p. 320; Vivar,
10 Section 1016.2, subdivision (c).
11 The findings and declarations in section 1016.2 are relevant to a section 1473.7
motion because the Legislature declared in 2018 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, subd. (c); see Vivar, supra,
11 Cal.5th at p. 529.) Section 1016.2 states in part:
“(f) Once in removal proceedings, a noncitizen may be transferred to any of
over 200 immigration detention facilities across the country. Many
criminal offenses trigger mandatory detention, so that the person may not
request bond. In immigration proceedings, there is no court-appointed right
to counsel and as a result, the majority of detained immigrants go
unrepresented. Immigration judges often lack the power to consider
whether the person should remain in the United States in light of equitable
factors such as serious hardship to United States citizen family members,
length of time living in the United States, or rehabilitation.
“(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 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 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.”
18.
supra, 11 Cal.5th at p. 529.) In considering all the circumstances, certain factors are
particularly relevant, including (1) the defendant’s ties to the United States, (2) the
importance the defendant placed on avoiding the adverse consequences, (3) the
defendant’s priorities in seeking a plea bargain, and (4) whether the defendant had reason
to believe an immigration-neutral negotiated disposition was possible. (Espinoza, supra,
at p. 320.) “These factors are not exhaustive, and no single type of evidence is a
prerequisite to relief.” (Id. at p. 321.)
The Attorney General contends Alma failed to establish her misunderstanding was
prejudicial. The Attorney General asserts that evidence regarding most of the particularly
relevant factors is absent from the record and the showing of her ties to the community is
minimal. In particular, the Attorney General states Alma offered no objective evidence
of (1) her immigration status, (2) the lack of connections to her country of origin, (3) her
connections to family, friends or the community, (4) her work history, (5) taxes paid, or
(6) schools attended. Thus, the Attorney General contends the personal-ties factor
weighs in favor of finding Alma did not establish prejudice.
Alma’s declaration addressed prejudice by stating that if she had known her plea
would result in exclusion of admission to the United States, denial of naturalization, or
not being able to receive a green card, she would have fought the case, would have
consulted with an immigration attorney, and would have asked for another resolution
with no immigration consequences. This statement, if true, would establish her
misunderstanding was prejudicial. However, courts do not accept at face value a
defendant’s assertion that he or she would have behaved differently if fully aware of the
adverse immigration consequences of the plea. Our Supreme Court’s decisions require
that such assertions be corroborated with objective evidence. (Espinoza, supra, 14
Cal.5th at p. 321; Vivar, supra, 11 Cal.5th at p. 530.)
Here, the corroborating evidence offered by Alma was her ties to the United
States. Her declaration asserted:
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“I have been living in the US since 1994, paying taxes here and working
here and now I am facing the possibility of not receiving a green card and
living in exile for the rest of my life. I have 3 children [who] are United
States Citizens.”
Other corroborating evidence of her ties includes her children’s birth certificates,
the probation report, and her 2017 driver’s license. These documents consistently show
Alma as living in or near Porterville from 1999 through 2017.
“Ties to the United States are an important factor in evaluating prejudicial error
under section 1473.7 because they shed light on a defendant’s immigration priorities.”
(Espinoza, supra, 14 Cal.5th at p. 321.) “Community ties may be established by length
of residence; immigration status; lack of connection to the country of origin; connections
to family, friends, or the community; work history or financial ties; or other forms of
attachment.” (Ibid., italics added.) The Supreme Court’s use of the disjunctive connector
“or” in this list is consistent with its statement that “no single type of evidence is a
prerequisite to relief.” (Ibid.; see Houge v. Ford (1955) 44 Cal.2d 706, 712 [ordinary
meaning of the word “or” is “to mark an alternative such as ‘either this or that’ ”].)
At the time of her plea in December 2008, (1) Alma was 35 years old; (2) she had
lived in the United States since she was 21 years old; (3) she had an unspecified history
of working and paying taxes, and (4) her daughters, who are citizens of the United States,
were nine and six years old. Thus, at that time, returning to Mexico would have
separated Alma from her employment and also would have separated her from her
daughters or, alternatively, would have uprooted her children and deprived them of the
advantages of their home country. The importance of Alma’s ties to her daughters is
reflected in her actual behavior “[a]fter [she] accepted the plea and served jail time.”
(Espinoza, supra, 14 Cal.5th at p. 322.) In Espinoza, after the defendant was released
from jail, “he returned home to care for his family and community. He became the
caregiver for his elderly parents who suffer from severe medical conditions. He ran his
own business to provide for his family. He volunteered, went to church, and took part in
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numerous community organizations.” (Ibid.) Our Supreme Court concluded that
“[t]hese facts lend credence to Espinoza’s assertion that his community ties were
important to him at the time of his plea.” (Ibid., italics added.)
Here, Alma complied with the terms of her probation that required her to pay fines
imposed by the court and complete programs, thereby avoiding the separation from her
family and employment that would have resulted from a probation violation.12
Furthermore, the record shows that Alma remained in California with her family and in
2012 gave birth to a son. The general statement in Alma’s declaration that she has lived
in the United States since 1994 implies that she has not returned to Mexico since coming
to the United States. We infer Alma has not returned to Mexico because it is consistent
with the information contained in her son’s birth certificate, the probation report, and her
driver’s license.
We recognize that the evidence establishing the strength of the defendant’s
personal ties to the United States was less robust than that presented in Espinoza and
Vivar.13 Conversely, we also recognize that those cases and other appellate decisions do
12 The prosecution presented no evidence that Alma violated the terms of her
probation or committed additional crimes after her plea. Also, the factual assertion that
Alma still owed $283.00 in restitution was not supported by evidence and the Attorney
General’s respondent’s brief does not rely on that assertion.
13 The personal details addressed in a comprehensive declaration include, without
limitation, (1) the movant’s age upon arrival in the United States; (2) the identity of the
persons with whom the movant came to the United States; (3) the persons with whom the
movant lived upon arrival; (4) the movant’s immigration status and language abilities; (5)
where the movant’s grandparents, parents, siblings, and other relatives live and their
immigration status; (6) the movant’s marital status and, details about any spouse; (7) the
ages and citizenship of the movant’s children and grandchildren; (8) the schools, if any,
the movant attended in the United States; (9) the movant’s employment history; (10) the
movant’s history of paying state and federal income taxes and property taxes; (11)
persons for whom the movant acts as the primary care giver; (12) real property owned by
the movant or the movant’s parents; (13) connections or lack of connections to country of
origin; (14) community involvement; (15) the movant’s or family member’s military
service; and (16) the movant’s pre-plea and post-plea criminal record.
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not establish the principle that the ties between a mother and her children are insufficient
as a matter of law to corroborate a defendant’s assertion of prejudice. The importance of
the connection between children who are United States citizens and a foreign-born parent
is recognized in the legislative findings in section 1016.2, subdivision (g). (See fn. 11,
ante.) Of course, the strength of a mother-child connection will vary from individual to
individual. Here, however, the 2021 petition of Alma’s oldest daughter to the United
States Citizenship and Immigration Service on Alma behalf supports the inference that
their connection was, and continues to be, strong.
Based on our independent review of the totality of the circumstances and our
understanding of the reasonable probability standard, we find there is a reasonable
chance, which is more than an abstract possibility, that Alma would have rejected the
plea if she had correctly understood the immigration consequences and would have
sought an alternate resolution. Accordingly, we conclude Alma has affirmatively
established a “prejudicial error” within the meaning of section 1473.7, subdivision (a)(1).
(Cf. People v. Mejia, supra, 36 Cal.App.5th at p. 873.)
The appropriate relief on appeal is to reverse and “remand the case to the trial
court for entry of an order granting [Alma’s] section 1473.7 motion to vacate h[er]
conviction.” (Espinoza, supra, 14 Cal.5th at p. 326; see People v. Alatorre, supra, 70
Cal.App.5th at p. 771 [reversed order denying the § 1473.7 motion and remanded with
directions to grant the motion].)14 “[S]ection 1473.7 does not require a court to dismiss
the matter after the movant successfully vacates a conviction and withdraws his or her
plea.” (People v. Vaca (2023) 89 Cal.App.5th 1113, 1120.) This opinion does not imply,
14 If the parties desire an expeditious remand, they may stipulate to the immediate
issuance of remittitur (either before or after the period to request a rehearing has expired)
pursuant to California Rules of Court, rule 8.272(c)(1), which is made applicable to
appeals in criminal cases by California Rules of Court, rule 8.366(a). (See People v.
Porter (2022) 73 Cal.App.5th 644, 652.)
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one way or the other, whether dismissal of the case is appropriate under section 1385,
subdivision (a).
DISPOSITION
The order denying the section 1473.7 motion is reversed. The matter is remanded
and the superior court is directed to file—no later than 10 days after the issuance of
remittitur—an order granting the motion, vacating the conviction, and allowing Alma to
withdraw her plea.
FRANSON, Acting P. J.
WE CONCUR:
PEÑA, J.
MEEHAN, J.
23.