People v. Alatorre ( 2021 )


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  • Filed 10/22/21
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                D077894
    Plaintiff and Respondent,
    v.                                  (Super. Ct. No. JCF18829)
    CARLOS ARGENIS FIGUEROA
    ALATORRE,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Imperial County,
    Monica Lepe-Negrete, Judge. Reversed with directions.
    Richard Jay Moller, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
    Michael Pulos, Seth Friedman and Kathryn Kirschbaum, Deputy Attorneys
    General, for Plaintiff and Respondent.
    In the mid-2000s, Carlos Argenis Figueroa Alatorre was working as a
    car salesperson and had a second baby on the way. As sales plummeted and
    he found himself out of a job, he was approached by his brother-in-law, Luis,
    with an opportunity to make some quick cash. Although he knew Luis was
    involved in something unsavory, Alatorre began working for him, acting as a
    lookout and a driver for about two months before the United States
    Department of Justice closed in on Luis’s drug importation ring, arresting
    Alatorre along with several others at a border patrol checkpoint where agents
    seized over thirty kilograms of cocaine.
    In the wake of the arrest, Alatorre was forthcoming about his
    involvement. He had already been in jail for a year and a half, awaiting his
    trial, when he was offered a plea deal that would allow him to be released
    from custody with credit for time served. So in 2008, at the age of 24, he
    pleaded guilty to his first and only criminal charge—conspiracy to possess
    cocaine for sale.
    Alatorre did not know this conviction would render him immediately
    deportable. He had come to the United States from Mexico when he was just
    four years old, and lived here as a permanent resident. In 2011, three years
    after his plea, he attempted to become a naturalized citizen, which had the
    unintended but very predictable consequence of alerting immigration
    authorities to his criminal conviction. Within a few months, he was deported
    to Mexico.
    Alatorre lived in Mexicali after that, taking any available work he
    could find. Although his children, who are both U.S. citizens, were usually
    able visit him on the weekends, he was separated from life with his family—
    2
    not only his wife and children, but also his parents, four siblings, and dozens
    of nieces, nephews, and cousins—all of whom lived in the U.S.
    Penal Code section 1473.7, 1 which was enacted by the Legislature in
    2016 and became effective on January 1, 2017, created a new avenue of
    postconviction relief for noncitizens who pleaded guilty to a crime without
    fully comprehending the immigration consequences that might follow. (Stats.
    2016, ch. 739 (Assem. Bill No. 813) § 1.) Although these motions are
    generally timely if a petitioner is no longer in custody, they can be deemed
    untimely if not brought “with reasonable diligence.” (§ 1473.7, subd. (b).) In
    early 2020, Alatorre filed a motion to vacate his conviction under this statute,
    only to have the trial court deny it as untimely based on a finding that he did
    not exercise “reasonable diligence” to become aware of the existence of the
    statutory remedy after the law became effective. 2
    But what “reasonable diligence” means under the facts of this case is
    not readily apparent. That is because, for most immigration-related section
    1473.7 petitions, diligence in bringing a motion is evaluated from the point in
    time that a petitioner faces a clear adverse immigration consequence as a
    result of the underlying conviction. Here, however, Alatorre’s adverse
    event—his deportation—occurred years before section 1473.7 was enacted.
    The interesting question posed by this case is how a petitioner’s “reasonable
    1    All subsequent statutory references are to the Penal Code unless
    otherwise designated.
    2     Section 1473.7 was twice amended after enactment. (See Stats. 2018,
    ch. 825 (Assem. Bill No. 2867) § 2, eff. Jan. 1, 2019; Stats. 2020, ch. 317
    (Assem. Bill No. 2542) § 5, eff. Jan. 1, 2021.) Alatorre filed his motion under
    the version of the statute in effect in March 2020, which is largely identical to
    the current version.
    3
    diligence” should be evaluated when the ripening of an unexpected
    immigration consequence predates the creation of an avenue of relief.
    The trial court here never addressed that question, finding Alatorre’s
    petition untimely based on a fundamental-but-mistaken assumption that he
    was obligated to exercise reasonable diligence beginning from the date that
    the statute went into effect. But the reality is that a reasonable person in
    Alatorre’s circumstances—convicted in 2008, deported to Mexico in 2011, and
    working as a day laborer—would have little reason to discover 2017 changes
    to California law that might provide a new way to contest an old conviction.
    After considering the text, history, and purpose of section 1473.7, we
    reverse the trial court’s ruling, finding that it applied an incorrect legal
    standard when it assumed Alatorre was obligated to learn about section
    1473.7 starting in January 2017, when the section became effective.
    Borrowing from principles established in cases interpreting a similar statute
    in Oregon, we hold that where a petitioner’s adverse immigration
    consequences predate January 1, 2017, a court assessing the timeliness of a
    section 1473.7 motion must determine when the petitioner would have had
    reason to seek legal help or otherwise investigate new forms of postconviction
    relief, and evaluate diligence from that point forward, in light of all the
    circumstances.
    Guided by the Supreme Court’s recent decision in People v. Vivar
    (2021) 
    11 Cal.5th 510
     (Vivar), we also independently review the record in this
    case and conclude that Alatorre’s motion was timely as a matter of law. As to
    the merits of his request, we find he established prejudicial error within the
    meaning of section 1473.7, and we remand to the trial court with instructions
    to issue an order granting the motion.
    4
    FACTUAL AND PROCEDURAL BACKGROUND
    After his deportation, Alatorre periodically sought legal counsel, hoping
    to find a legal way to reenter the United States and reunite with his family.
    But differing reactions to his case from different attorneys left him confused
    about his prospects. He was unsure if he was being given proper advice, but
    was also generally aware that the laws might change at any time. For
    reasons that are not entirely clear, he decided in the late 2010’s that he
    wanted to attempt to naturalize again. He contacted attorney Otis
    Landerholm for this purpose, and because he found Landerholm to be
    trustworthy and adept at explaining immigration law, he wanted to hire him.
    After saving up enough money to do so, 3 he retained Landerholm in
    September of 2019. 4 Landerholm assessed his case, identified Alatorre’s
    2011 conviction as a barrier, and referred him to the Nieves firm which
    specializes in postconviction relief. Less than a month later, Alatorre hired
    Nieves, borrowing considerable funds from his family in the United States to
    do so quickly.
    The following March, Nieves filed a motion on Alatorre’s behalf to
    withdraw his plea and vacate his conviction under section 1473.7, alleging his
    plea was invalid due to his counsel’s failure to adequately advise him of the
    3    Alatorre made the U.S. equivalent of $100‒$250 per week working in
    Mexico.
    4      There is conflicting information in the record as to whether Alatorre
    first contacted Landerholm in 2017 or 2019, but it is clear he was not able to
    hire Landerholm until 2019. The trial court indicated it was inclined to
    believe the first contact occurred after 2017.
    5
    immigration consequences he would face. 5 At the motion hearing in July
    2020, the trial court’s primary concern was the timeliness of Alatorre’s
    petition rather than its merits. 6 In focusing on this issue, the trial court
    stated its view that “reasonable due diligence . . . assumes that a petitioner is
    attempting to avail himself of knowledge and attempting to seek relief
    continuously and . . . at least attempting to procure it.”
    When Alatorre testified, he summarized his efforts to obtain relief after
    his deportation, explaining that he contacted lawyers in both Mexico and the
    U.S., periodically conducted internet research about immigration, and then
    enlisted his family’s financial help to hire Nieves after Landerholm’s referral.
    The trial court found these efforts insufficient, concluding that Alatorre did
    not exercise reasonable diligence because he failed to take any action to
    vacate his conviction starting in January 2017 when section 1473.7 took
    effect. The court implicitly assumed that any timeliness inquiry traced from
    the effective date of the statute. In the court’s view, the fact that Alatorre
    had “stumbled upon” section 1473.7 only after consulting a lawyer about
    naturalization weighed against him. It ultimately denied his motion as
    untimely.
    5     Alatorre’s petition also stated another theory of relief under section
    1016.5, which governs the trial court’s obligation to ensure defendants who
    plead guilty are adequately informed of immigration consequences. Because
    we resolve this appeal based on Alatorre’s section 1473.7 motion, we need not
    consider his section 1016.5 motion.
    6     As we will discuss more below, if a court determines that an
    immigration-related section 1473.7 motion was not filed with “reasonable
    diligence,” in its discretion it may, but need not, deny the motion as untimely.
    (§ 1473.7, subd. (b)(2).)
    6
    DISCUSSION
    A. Where the Adverse Immigration Consequences Predate Section 1473.7, a
    Court Assessing the Timeliness of a Petition Must Consider When the
    Petitioner Would Have Reason to Learn About New Theories of Relief, and
    Whether the Petitioner was Reasonably Diligent After that Time.
    1. Our Standard of Review is Independent
    The Supreme Court recently clarified that appeals from section 1473.7
    hearings are subject to independent review. (Vivar, supra, 
    11 Cal.5th 510
    ,
    525.) Under this standard, “ ‘an appellate court exercises its independent
    judgment to determine whether the facts satisfy the rule of law.’ ” (Ibid.)
    Independent review extends particular deference to trial court findings “that
    are based on ‘ “the credibility of witnesses the [superior court] heard and
    observed” ’ ” but not to findings drawn from the “cold record” in the
    proceeding, since the trial and appellate courts are in the same position when
    tasked with interpreting such materials. (Id. at p. 527.) In this case, we
    consider the trial court’s interpretation of the reasonable diligence standard,
    which presents a question of law. 7
    7     The superior court made some limited credibility findings that have no
    bearing on the issue of how to apply the timeliness standard of section 1473.7
    to the facts of this case.
    7
    2. The Statute Itself is Ambiguous as to the Application of “Reasonable
    Diligence” for Petitioners Whose Adverse Immigration Consequence
    Predates Section 1473.7
    Although the trial court invoked the concept of reasonable diligence
    when it denied Alatorre’s petition, it did so without reference to where the
    term appears in section 1473.7. We begin there, with the plain language of
    the statute, and construe “reasonable diligence” under established principles
    of statutory construction: “ ‘We must look to the statute’s words and give
    them their usual and ordinary meaning.’ ” (People v. Arias (2008) 
    45 Cal.4th 169
    , 177 (Arias).)
    Section 1473.7, subdivision (a) provides that persons no longer in
    criminal custody may file a motion to vacate a conviction under three
    different circumstances. It is the first of those that concerns us in this case. 8
    Subdivision (a)(1) of the statute provides in relevant part that a motion to
    vacate can be brought if 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 plea of guilty or nolo contendere.”
    As the language of the statute makes clear, it was enacted to create
    postconviction relief for individuals whose convictions are legally invalid due
    to prejudicial error—but who are no longer imprisoned or restrained, and for
    that reason are unable to file a habeas corpus petition. (Vivar, supra, 
    11 Cal.5th 510
    , 523.)
    8      Subdivisions (a)(2) and (a)(3) of section 1473.7 also permit a motion to
    vacate where there is newly discovered evidence of actual innocence (subd.
    (a)(2)), or where the conviction was racially or ethnically motivated (subd.
    (a)(3)).
    8
    Notably, the law contains two separate timeliness provisions. The one
    that governs immigration-related petitions contains no rigid time constraint;
    in fact, these motions are timely by default as long as the individual is no
    longer in custody. (§ 1473.7, subd. (b)(1).) But they may be deemed untimely
    if “not filed with reasonable diligence after the later of” (1) the initiation of
    immigration court proceedings against the party, (2) the denial of an
    immigration benefit, or (3) a final removal order. (Id., subd. (b)(2).) 9
    “[T]he meaning of the timeliness provisions set forth in subdivision (b)
    of section 1473.7 . . . is a pure question of law,” and was recently considered
    by the Fifth Appellate District in Perez, supra, 
    67 Cal.App.5th 1008
    . Because
    Perez’s analysis provides a helpful backdrop for our discussion, we briefly
    summarize the facts of the case. The petitioner in Perez filed his section
    1473.7 motion in December 2019 to vacate a conviction entered after he pled
    guilty in 2000. (Perez, at p. 1012.) The People opposed on timeliness grounds,
    characterizing the motion as inexcusably delayed by 19 years. (Ibid.) After a
    brief comment in which the trial court explained that it would like to grant
    relief on humanitarian grounds but felt otherwise constrained, it regretfully
    denied the motion. (Ibid.)
    In considering the propriety of the trial court’s denial, Perez gave a
    thorough account of changes to the statutory language regarding the
    timeliness requirements for immigration-related section 1473.7 petitions.
    It began by observing that the first version of the statute, which became
    effective in January of 2017, indicated such petitions “shall be filed with
    reasonable diligence after the later of” the triggering events. (Perez, supra,
    9      For the purposes of this discussion, and consistent with other cases, we
    refer to these as “triggering events.” (See People v. Perez (2021) 
    67 Cal.App.5th 1008
    , 1014, fn. 6 (Perez).)
    9
    67 Cal.App.5th at p. 1013.) It reasoned from the Legislature’s initial use of
    “shall” that “courts were required to deny a motion when the moving party
    had not acted with reasonable diligence in filing the motion.” (Ibid.) But it
    went on to explain that the Legislature made significant changes to this
    language when it amended the section two years later. In the updated
    version, which became effective in 2019, the Legislature specified that
    motions “shall be deemed timely filed at any time in which the individual
    filing the motion is no longer in criminal custody,” but “may be deemed
    untimely filed if it was not filed with reasonable diligence after the later of”
    the triggering events. (Ibid.) From this shift in language, Perez concluded
    that as a “general rule” motions submitted by petitioners no longer in custody
    were timely (id. at p. 1012), but as an exception to that rule, if a trial court
    finds that a petitioner did not exercise reasonable diligence, the court may
    exercise its discretion to deem a motion untimely. (Id. at p. 1015.) In other
    words, “[t]he lack of reasonable diligence does not automatically require the
    superior court to deem the motion untimely,” but if the court elects to
    consider timeliness, it may do so in light of the “totality of the
    circumstances.” (Ibid.)
    By explaining the scope of the trial court’s discretion under the
    amended statute, Perez clarified that “reasonable diligence” is not a
    timeliness requirement for section 1473.7 motions made under subdivision
    (a)(1), but rather a condition that, if present, requires the court to grant
    meritorious motions. Conversely, if the condition is lacking, the court is then
    empowered to exercise its discretion to either consider the merits or deny the
    motion on timeliness grounds.
    Here, it is not clear whether the trial court understood that it was
    making a discretionary decision when it denied Alatorre’s motion as
    10
    untimely. But of course, it did not have the benefit of Perez’s statutory
    construction at the time. Nor did it give a clear indication—as the trial court
    in Perez did—that it would have granted the motion if it understood that it
    had the discretion to do so. Regardless, the heart of the trial court’s
    evaluation of timeliness in this case lies elsewhere and requires that we
    address an issue Perez did not reach: how to analyze whether a petitioner
    exercised reasonable diligence in cases where the petitioner’s triggering
    events predate section 1473.7.
    Returning to the statutory text, we observe that the timeliness
    provision is silent on this point. It plainly states that the trial court may
    deem a motion untimely “if it was not filed with reasonable diligence after
    the later of” the triggering events, but says nothing about how the trial court
    should evaluate diligence if all of the triggering events happened before the
    statute was effective. Given this statutory silence, “we employ ‘the ordinary
    presumptions and rules of statutory construction’ ” to determine how to
    construe “reasonable diligence” in this factual context. (People v. Bear (2018)
    
    25 Cal.App.5th 490
    , 498; see also American Indian Model Schools v. Oakland
    Unified School Dist. (2014) 
    227 Cal.App.4th 258
    , 290 [“When a statute is
    silent on a point, the courts resort to statutory interpretation.”].)
    We look next at the context of the timeliness provision, and draw what
    inferences we can from its contents, structure, and counterpart within the
    same section. “Words must be construed in context, and statutes must be
    harmonized, both internally and with each other, to the extent possible.”
    (California Mfrs. Assn. v. Public Utilities Com. (1979) 
    24 Cal.3d 836
    , 844.)
    First, we observe that the provision’s list of triggering events acts as a type of
    notice for the petitioner. Because subdivision (a)(1) of section 1473.7 exists to
    help petitioners who did not comprehend the potential adverse immigration
    11
    consequences of a past criminal plea, the statute presumes that the
    occurrence of the adverse triggering event—such as a summons to
    immigration court, or a notice of removal—will alert petitioners that they
    misunderstood the consequence of their conviction. The statute’s legislative
    history further underscores the point: “While the criminal penalty for a
    conviction is clear, the immigration penalty can remain ‘invisible’ until an
    encounter with the immigration system raises the issue.” (Sen. Com. on Pub.
    Safety, com. on Assem. Bill No. 813 (2015‒2016 Reg. Sess.) May 10, 2016.)
    The Legislature thus recognized that the class of petitioners subdivision
    (a)(1) aims to help usually remain unaware of their own injury until an
    encounter with the immigration system makes the consequences of their
    pleas plain. From this, it is only logical to infer that the Legislature
    presumed, in drafting subdivision (b)(2), that petitioners had not yet suffered
    the adverse consequence that would prompt them to seek legal help. In all
    likelihood, the order of events presented in this case—the adverse
    consequences occurred before the creation of the statutory remedy—was
    simply not contemplated. 10
    Turning to the broader structure of the timeliness provision, we find
    significant indicators of a legislative intent toward leniency in filing. A
    petitioner’s reasonable diligence is measured from the later of three possible
    10    Another way to explain this omission would be to conclude that the
    Legislature intended the section to only apply prospectively, to petitioners
    who pleaded guilty after its effective date. We have already considered, and
    rejected, this possibility. (People v. Perez (2018) 
    19 Cal.App.5th 818
    , 827
    [“[W]e do not read the statute as limiting relief as to defendants who pled
    guilty only after the statute’s effective date. . . . [T]he statute’s own language
    indicates that it can be applied retroactively if the moving party satisfies the
    requirements of the statute.”]; see also People v. Tapia (2018) 
    26 Cal.App.5th 942
    , 949.)
    12
    triggering events. Under this framework, the same petitioner could receive
    notice to appear in immigration court (§ 1473.7, subd. (b)(2)(A)), and do
    nothing at all for months, or even years, until a final removal order is issued.
    (Id., subd. (b)(2)(B)). That petitioner’s motion would still be deemed timely as
    long as the individual demonstrates reasonable diligence in filing the motion
    after the later event—in this example, the removal order. It would be
    irrelevant that the petitioner did nothing in the interim between the two
    triggering events. This legislative choice stands in stark contrast to other
    laws where timeliness is evaluated from the earliest point at which a litigant
    might reasonably be expected to pursue some newly available remedy. (See,
    e.g., § 1509, subd. (g) [giving a one-year timeline to file a habeas corpus
    petition for capital convictions that predated the section, or “within the time
    allowed under prior law, whichever is earlier.”].)
    Our final contextual clue comes from the timeliness provision that
    governs the other grounds for a section 1473.7 motion—the discovery of new
    evidence of actual innocence or evidence that a conviction was racially or
    ethnically motivated. (§ 1473.7, subd. (a)(2)‒(3).) These claims are subject to
    a different timeliness standard, and “shall be filed without undue delay from
    the date the moving party discovered, or could have discovered with the
    exercise of due diligence, the evidence that provides a basis for relief . . . .”
    (Id., subd. (c).) It is thus clear that the Legislature imposed a due diligence
    requirement to proactively investigate new, relevant information on two
    classes of people who might qualify for section 1473.7 relief—but, notably, not
    the class of petitioners whose basis for the motion is unexpected immigration
    consequences. That these provisions were drafted together and enacted in
    the same year only underscores our conclusion that the Legislature created a
    strikingly generous timeliness standard for immigration-related petitions.
    13
    While this contextual analysis yields significant indicators of general
    legislative intent and motivations, it still does not clarify how to construe
    “reasonable diligence” in the specific factual situation before us. We thus
    turn to the section’s purpose and history for further guidance. (See Arias,
    
    supra,
     45 Cal.4th at p. 177 [in the service of statutory construction, “we may
    consider a variety of extrinsic aids, including legislative history, the statute’s
    purpose, and public policy”].) There, we find strong evidence that the
    reasonable diligence standard imposed by the trial court in this case
    contravenes the Legislature’s intent.
    In March 2015, Assembly Bill No. 813, 11 an early draft of what would
    become section 1473.7, included the effective date of the statute as one of the
    triggering events. At the time, it read as follows: “(b) A motion pursuant to
    this section shall be filed with reasonable diligence after the later of [the
    triggering events]” including “(4) [T]he effective date of this section.” (Assem.
    Amend. to Assem. Bill No. 813 (2015‒2016 Reg. Sess.) Mar. 26, 2015.) But in
    June, the Senate amended the bill to strike subdivision (b)(4). (Sen. Amend.
    to Assem. Bill No. 813 (2015‒2016 Reg. Sess.) June 22, 2015.) This indicates
    the Legislature specifically considered but ultimately rejected the statute’s
    effective date as a possible event that could trigger a petitioner’s
    responsibility to exercise diligence. Yet this is precisely the standard the
    trial court applied when it stated that reasonable diligence for someone like
    11    Assembly Bill No. 813 was the origin of section 1473.7. (Assem. Bill
    No. 813 (2015‒2016 Reg. Sess.) § 1.)
    14
    Alatorre means he must “[attempt] to avail himself of knowledge and . . . seek
    relief continuously” 12 from the time when section 1473.7 came into effect. 13
    Where the Legislature has expressly declined to include a provision in
    a statute, we will neither supply it anew nor affirm its implicit use. (See,
    e.g., Kim v. Reins International California, Inc. (2020) 
    9 Cal.5th 73
    , 85 [“In
    construing a statute, we are ‘ “careful not to add requirements to those
    already supplied by the Legislature.” ’ ”]; Manufacturers Life Ins. Co. v.
    Superior Court (1995) 
    10 Cal.4th 257
    , 274 [“In the construction of a statute or
    instrument [courts do not] insert what has been omitted, or . . . omit what
    has been inserted”]; Santa Fe Transp. Co. v. State Bd. of Equalization (1959)
    
    51 Cal.2d 531
    , 539 [when the Legislature fails to put limitations into a
    statute, it “ ‘must be deemed to have omitted [the language] intentionally’ ”].)
    Consequently, we cannot endorse the framework used by the trial court to
    assess Alatorre’s diligence.
    12      Section 1473.7 does not define the term “reasonable diligence.” The
    Supreme Court has defined reasonable diligence in other contexts as resisting
    any “ ‘mechanical definition’ ” (People v. Cromer (2001) 
    24 Cal.4th 889
    , 904),
    but generally comprising “ ‘ “untiring efforts in good earnest” ’ ” and
    “ ‘ “efforts of a substantial character.” ’ ” (People v. Cogswell (2010) 
    48 Cal.4th 467
    , 477.) Although here the trial court’s functional definition of the term
    appears accurate enough, its application to when the diligence period began
    is the source of our concern.
    13     At the proceedings in the trial court, the parties debated whether the
    reasonable diligence “clock” should start for Alatorre in 2017, when section
    1473.7 first became effective, or in 2019, when it was amended (arguably
    changing the law in his favor). Neither position is tenable given the
    legislative history of the section.
    15
    3.    The Meaning of “Reasonable Diligence” in the Context of
    Postconviction Relief
    What is less clear, however, is what framework trial courts should
    employ in evaluating the timeliness of petitions like Alatorre’s, where the
    triggering event occurred before the statute’s effective date. 14 Because
    neither our textual nor purposive examinations of section 1473.7 definitively
    answer this question, we turn to broader caselaw for guidance, finding a
    helpful analogue in recent cases concerning a similar statute in Oregon—the
    Uniform Post-Conviction Procedures Act (PCPA), Oregon Annotated Statutes,
    section 138.510 et seq. (Bogle v. State (Or. 2018) 
    423 P.3d 715
    , 719 (Bogle).)
    Oregon’s PCPA “was enacted to establish an exclusive procedure
    through which a person convicted of a state crime can challenge his or her
    conviction.” (Bogle, supra, 423 P.3d at p. 719.) It affords relief to a petitioner
    convicted of a crime who can establish a “substantial denial” of the
    petitioner’s rights “in the proceedings resulting in the petitioner’s conviction
    . . . [which] rendered the conviction void.” (Or. Rev. Stats. Ann., tit. 14,
    § 138.530(1)(a).) This language closely parallels section 1473.7, subdivision
    (a)(1), in which a conviction is considered “legally invalid” due to a prejudicial
    defect. And although the PCPA does not contain an explicit provision
    regarding claims that hinge on inadequate understanding of adverse
    immigration consequences, Oregon petitioners can raise an Oregon
    14    We emphasize that a timeliness inquiry is always discretionary; as long
    as a petitioner is no longer in criminal custody, the trial court is never
    obligated to deny an immigration-related section 1473.7 petition for lack of
    timeliness. (Perez, supra, 67 Cal.App.5th at pp. 1015‒1016.)
    16
    Annotated Statutes, section 138.530(1)(a) claim using a Padilla theory. 15
    (See, e.g., Gutale v. State (Or. 2019) 
    435 P.3d 728
    , 729 (Gutale).) These
    similarities enable us to draw helpful insights from Oregon authority
    construing the bounds of PCPA relief.
    The PCPA provides a two year time limit to file a petition for
    postconviction relief after the final entry of judgment in a petitioner’s case.
    But it also includes an “escape clause” allowing a later filing if the grounds
    for relief could not reasonably have been raised within the two-year period.
    (Or. Rev. Stats. Ann., § 138.510(3).)
    In Gutale, supra, 
    435 P.3d 728
    , the Oregon high court considered
    whether an otherwise untimely PCPA petition fell within the escape clause.
    Gutale did not learn he was deportable as a result of a guilty plea until after
    the two-year window to file his petition had elapsed. (Id. at p. 731.) He
    argued he could not reasonably have known about the deficiency in his plea
    process before he was taken into ICE custody, but the Oregon intermediate
    appellate court affirmed the trial court’s denial of his motion as untimely
    “based on the principle that ‘persons are assumed to know laws that are
    publicly available and relevant to them,’ including relevant immigration law.”
    (Id. at pp. 730, 734.) In rejecting the appellate court’s mechanical application
    of a duty to know the law, Oregon’s high court explained that a proper
    analysis of whether the escape clause applied would necessarily include
    consideration of “both whether the petitioner reasonably could have accessed
    the ground for relief and whether a reasonable person in the petitioner’s
    15    See Padilla v. Kentucky (2010) 
    559 U.S. 356
    , 367‒369 [criminal defense
    counsel must provide accurate advice to noncitizen defendants regarding
    potential immigration consequences of their cases].
    17
    situation would have thought to investigate the existence of that ground for
    relief.” (Id. at p. 734.) 16
    Although Gutale was construing a different statute with a different
    timeliness standard, we find its reasoning persuasive, not least because
    California’s section 1473.7 reflects an even more lenient legislative intent
    than its Oregon counterpart. 17 We are thus convinced that the standard
    advanced in Gutale can be utilized in effectuating our Legislature’s intent.
    To that end, the critical question posed in Gutale is one we adopt for purposes
    of analyzing the timeliness of Alatorre’s petition: What event in Alatorre’s
    life that occurred after section 1473.7 became effective would have given him
    “a reason to look for the existence of [new] legal grounds for relief” or, at a
    minimum, “put him on notice of the need to investigate[?]” (Gutale, supra,
    435 P.3d at p. 734.) 18
    16    At our request, the parties submitted supplemental briefing regarding
    the application of Gutale, supra, 
    435 P.3d 728
     to this case.
    17    This is evident from the differences in the timeliness provisions. Where
    the Oregon Legislature elected to use a two-year limit for most cases, with an
    escape clause for claims that could not have been reasonably raised earlier,
    our Legislature opted for a general presumption of timeliness with the caveat
    that petitioners would do well to exercise reasonable diligence after their
    adverse consequences ripen, lest the trial court exercise its discretion to deem
    their motions untimely. (Perez, supra, 67 Cal.App.5th at pp. 1014‒1015.)
    18     One intermediate appellate court decision filed before Gutale reached a
    different conclusion on facts quite similar to ours. (Hernandez-Zurita v. State
    (Or. 2018) 
    417 P.3d 548
     (Hernandez-Zurita).) Without the benefit of Gutale’s
    reasoning, Hernandez-Zurita rejected a petitioner’s timeliness claim that he
    qualified under the PCPA escape clause due to obstacles he faced in obtaining
    legal materials and counsel while in Mexico. (Hernandez-Zurita, at
    pp. 553−554.) Like the superior court in our case, the court reasoned that the
    asserted grounds for relief were published and available to the general public
    18
    4.    The Maxim that Everyone is Presumed to Know the Law Does Not
    Apply Here
    In arguing that the Gutale formulation should not apply to petitions
    under section 1473.7, the People cite to the well-established legal
    presumption that everyone knows the law—the same presumption that
    Gutale contextually disapproved. (See 435 P.3d at p. 733 [“Being reasonably
    available means more than just that a petitioner could have found the law if
    he or she had looked. Instead, a ground for relief is reasonably available only
    if there was a reason for the petitioner to look for it.”].) In a similar vein,
    Alatorre suggests it would be “draconian to rule that a deported . . . Mexican
    [citizen] making no more than $250 a [week] should have known about the
    passage of section [1473.7] before he did.” As we explain, we agree with
    Alatorre and would not impose on him or those similarly situated a
    presumptive knowledge of the law. Apart from the statutory timeliness
    factors we discuss above, the underlying basis for the presumption, relevant
    legal precedent, and the fair administration of the law all counsel against the
    application of the maxim in cases like this.
    We begin by noting that the maxim “everyone is presumed to know the
    law” is not a presumption of fact, but rather a rule of substantive law.
    (Murphy v. Sheftel (1932) 
    121 Cal.App. 533
    , 538 (Murphy).) It is another way
    at the time petitioner was convicted. (Ibid.) Drawing from other cases, it
    further stated that “ ‘the applicability of the escape clause turns on whether
    the information existed or was reasonably available to the petitioner, and not
    on whether the petitioner’s failure to seek the information was reasonable.’ ”
    (Id. at p. 552.) The Oregon Supreme Court vacated the Hernandez-Zurita
    decision and remanded for reconsideration in light of Gutale (Hernandez-
    Zurita v. State (Or. 2019) 
    451 P.3d 236
    ), “after which the case was jointly
    dismissed by the parties.” (Canales-Robles v. Laney (Or. 2021) 
    314 Or.App. 413
    , 420, fn. 1.) Finding Gutale’s reasoning more compelling, we use it for
    guidance.
    19
    of saying that ignorance of the law will not be recognized as a legal defense.
    The presumption cannot be rebutted even in the face of overwhelming
    evidence of actual ignorance. 19 (See, e.g., Leonard, Towards A Legal History
    of American Criminal Theory: Culture and Doctrine from Blackstone to the
    Model Penal Code (2003) 6 Buff. Crim. L.Rev. 691, 770 [citizens are presumed
    to know the law “not as a rebuttable factual matter but as a legal rule”].)
    Historically, the presumption that everyone knows the law has enjoyed
    widespread application in the criminal justice system, 20 where it can be
    restated as the principle that “one may not escape criminal liability by
    claiming ignorance of the law.” (Hutson v. Wenatchee Fed. Sav. and Loan
    Asso (Wash. 1978) 
    588 P.2d 1192
    , 1196 (Hutson); accord, People v.
    McLaughlin (1952) 
    111 Cal.App.2d 781
    , 788 [“No doctrine is more universal
    or of more ancient vintage in the law than that ignorance of the law excuses
    no one”]; 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2021) Defenses,
    § 44.) In civil proceedings, the presumption is usually confined to cases
    where particular parties, by nature of their professions or business dealings,
    “ought to know the law, such as a state banking supervisor, who should be
    presumed to know banking law . . . .” (Hutson, supra, 588 P.2d at p. 1196; see
    also Phillippe v. Shapell Industries (1987) 
    43 Cal.3d 1247
    , 1260‒1262
    [distinguishing between licensed and unlicensed brokers in concluding that
    licensed brokers presumptively know the law governing contract formation];
    19    Indeed, if everyone were really presumed to know the law, we would
    not need lawyers to advise and courts to decide what the law is. As the old
    joke goes, everyone is presumed to know the law . . . except a law student
    taking the bar exam.
    20   See, e.g., Keedy, Ignorance and Mistake in the Criminal Law (1908) 22
    Harv. L.Rev. 75, 77.
    20
    1119 Delaware v. Continental Land Title Co. (1993) 
    16 Cal.App.4th 992
    , 1002
    [contractor for commercial property inquiry presumed to know relevant
    zoning ordinance].)
    But as an early appellate decision observed, “the proposition that
    everyone is presumed to know the law rests upon no basis of fact.” (Murphy,
    supra, 121 Cal.App. at p. 538.) It is, in reality, “based on a fiction, because no
    man can know all the law . . . .” (People v. O’Brien (1892) 
    96 Cal. 171
    , 176.)
    But that fiction is justified because “[t]he rule rests on public necessity; the
    welfare of society and the safety of the state depend upon its enforcement.”
    (Ibid.) Because it is primarily a mechanism for convenience in
    administrating the law (Murphy, at p. 538), the presumption is “[not]
    available for the purpose of supplying evidence of a fact material to [a]
    controversy nor to prevail against the real truth as to any particular situation
    except as regards punishment for a criminal offense or responsibility for
    actual damage for the violation of private rights [citation].” (Id. at pp.
    538‒539.) In other words, as a general rule the presumption only prevents
    someone from claiming ignorance of the law in order to escape criminal or
    civil responsibility. It has no application in a case like this to deny a person
    statutory relief to which they would otherwise be entitled merely because
    they might have discovered their statutory remedy if they had reason to look.
    A closer examination reveals yet another reason to refrain from
    applying the presumption in cases like this: it does not apply to foreign
    nationals. A person is not presumed to know the law of another state or
    country where they do not live or work. (Tavares v. Glens Falls Ins. Co.
    (1956) 
    143 Cal.App.2d 755
    , 760 [“There is no presumption as to knowledge of
    21
    a law where the law is the law of a foreign country.”].) 21 The reason for this
    is apparent when we consider that Alatorre, a Mexican citizen living in
    Mexico, would have even less opportunity to learn about a newly enacted
    California law than the average Californian—though we doubt many
    residents of this state keep abreast of changes to the Penal Code. Even if
    they did, the scope of relief available under section 1473.7 would not have
    been clear to just anyone who happened to read about its enactment. It adds
    a layer of complexity to the already bewildering interplay between state
    criminal proceedings and federal immigration enforcement—an area of the
    law that has “aptly been called a labyrinth that only a lawyer could
    navigate.” (Biwot v. Gonzales (9th Cir. 2005) 
    403 F.3d 1094
    , 1098.)
    In section 1473.7, the Legislature has expressed its particular concern
    for immigrants who suffer convictions without understanding that it will in
    the future result in their deportation or other adverse immigration
    consequences. It is a highly unique statute in that a failure to understand
    the law is the essential predicate for relief. To insist in this context that
    petitioners are irrebuttably presumed to be aware and appreciate the
    significance of a new change in the law—despite all evidence to the
    contrary—would deny relief by substituting reliance on one legal
    misunderstanding for another in contravention of a manifest legislative
    intent.
    In summary, “while it is essential to the due administration of justice
    that no person avoid liability for his wrongdoings on a claim of ignorance of
    21    In citing to caselaw stating that U.S. citizens are generally responsible
    to know the laws that govern them, the People apparently overlook the fact
    that Alatorre is neither a U.S. citizen, nor was he residing in the United
    States when section 1473.7 became effective.
    22
    the law, ‘the law is not so senseless as to make absurd presumptions of fact.’ ”
    (Claremont v. Truell (N.H. 1985) 
    489 A.2d 581
    , 586.) Here, the presumption
    that Alatorre could or should have known about section 1473.7 as of the date
    of its enactment, of his own accord, without the aid of a lawyer and without
    some event that would prompt him to retain one, borders on the absurd. We
    instead hold that individuals seeking this type of postconviction relief cannot
    be conclusively presumed to know of the existence and significance of the
    statutory remedy. (See Bibeau v. Pacific Northwest Research Foundation Inc.
    (9th Cir. 1999) 
    188 F.3d 1105
    , 1110‒1111 [defendant was not presumed to
    know he was injured as of the effective date of a statute providing relief for
    his class of injuries].)
    5.     To Assess Timeliness for Petitioners Whose Adverse Immigration
    Events Predate Section 1473.7, Courts Should Ask When
    Petitioners Had Reason to Become Aware of the Statutory Remedy
    Putting all of these components together, we conclude it is most
    consistent with the meaning and purpose of section 1473.7 to evaluate
    reasonable diligence in cases where the petitioner’s triggering events
    predated the law by determining whether or when the petitioner had a
    reason to inquire about new legal grounds for relief, and assessing the
    reasonableness of the petitioner’s diligence from that point forward. Just as
    the triggering events in the statute provide petitioners still in the U.S. with
    notice of a fact (such as pending deportation), courts must look for an
    analogous event in the life of petitioners like Alatorre that would provide
    notice of a change in the law that the petitioner would otherwise have no
    occasion to learn about (such as the availability of relief under section
    23
    1473.7). 22 And as in many areas where the court exercises its discretion, it
    must take into account the totality of the circumstances. (Perez, supra, 67
    Cal.App.5th at p. 1012.)
    B.    Independently Reviewing Alatorre’s Motion, We Conclude It Was Timely
    and Should Be Granted.
    Having concluded that the trial court made an error of law when it
    faulted Alatorre for not exercising reasonable diligence from the point at
    which a change in the law favorable to him took effect, we now consider how
    to remedy that mistake. In many similar scenarios, we would remand for
    reconsideration by the trial court. Here, however, as a matter of law
    Alatorre’s motion was both timely and legally sufficient to demonstrate his
    entitlement to relief under section 1473.7. Consequently, there is no need for
    further consideration in the superior court, and the “appropriate remedy is to
    direct the trial court to grant the motion.” (People v. Camacho (2019) 
    32 Cal.App.5th 998
    , 1012 (Camacho).)
    1.    Alatorre’s Motion Was Timely
    As the Perez decision made clear, immigration-related petitions are
    presumptively timely once the petitioner is released from custody, and trial
    courts can only deem a motion untimely if it was not filed with reasonable
    diligence after the later of the triggering events. (Perez, supra, 67
    Cal.App.5th at pp. 1013‒1014; § 1473.7, subd. (b).) Applying the principles
    we have articulated, we identify Landerholm’s referral of Alatorre to the
    22    This is not to say we “adopt a standard of actual knowledge for a person
    who forgoes legal representation or advice and remains, by his own choice,
    ignorant of possible grounds for seeking post-conviction relief.” (Hernandez-
    Zurita, supra, 417 P.3d at p. 552.) Ignorance can be either reasonable or
    unreasonable, and only reasonable ignorance equates to a reasonable delay.
    We trust trial courts in the first instance to assess whether a petitioner’s
    delay in filing is reasonable or unreasonable given all the circumstances.
    24
    Nieves firm to be a clear point at which Alatorre had a reason to look for new
    legal grounds for relief. This is because Landerholm’s referral put Alatorre
    on notice of two legal realities that should have led him to discover section
    1473.7: (1) that he could not legally return to the U.S. due to his conviction 23
    and, even more critically, (2) that he might be eligible for a form of
    postconviction relief that would enable him to vacate the conviction.
    Once we identify the point at which Alatorre would have reason to look
    for legal relief, we evaluate his diligence from that time forward. A
    reasonably diligent person in Alatorre’s position would either follow up on the
    Nieves referral or, at a minimum, begin to investigate post-conviction relief.
    Here, Alatorre accomplished the former in a month. He was referred by
    Landerholm in August of 2019, and by September he had retained Nieves. 24
    A period of approximately one month between a petitioner’s triggering event
    and the hiring of legal counsel cannot be considered an unreasonable delay.
    (People v. Rodriguez (2019) 
    38 Cal.App.5th 971
    , 979 [petitioner who filed a
    motion less than a month after the appellate court alerted him that he might
    qualify for section 1473.7 relief exercised reasonable diligence].) We thus
    conclude that Alatorre acted with reasonable diligence. Given that he is no
    longer in custody, his motion was timely. (§ 1473.7, subd. (b)(1).)
    23     Alatorre hired Landerholm because he wanted to try again to
    naturalize. We infer from this fact that he still did not fully understand at
    the time that his conviction was an absolute barrier to becoming a U.S.
    citizen.
    24     Although it took Nieves until March of 2020 to file Alatorre’s motion,
    the trial court explained that it would not consider the period between
    September and March to weigh against him, nor would it fault his attorneys
    for taking a few months to investigate, compile records, and prepare the
    motion. We accept the trial court’s analysis on this point.
    25
    2.    Alatorre Established Prejudicial Error
    We turn now to the merits of Alatorre’s petition. Pointing to various
    statements by the judge during the hearing, 25 he asserts that the trial court
    “implicitly ruled that [he] would have prevailed on the merits” but for its
    timeliness finding. Not surprisingly, the People dispute this characterization
    of the court’s comments. And while it is evident that the court considered
    timeliness a threshold matter to be addressed before the merits of the
    petition, it is far less clear whether or to what extent the court expressed
    views on the merits of Alatorre’s claim assuming his petition was timely.
    Fortunately, interpreting the superior court’s comments is unnecessary
    because whether a petitioner establishes prejudicial error is “[u]ltimately . . .
    for the appellate court to decide, based on its independent judgment.” (Vivar,
    supra, 11 Cal.5th at p. 528.) Developing caselaw construing section 1473.7
    makes it clear that on the undisputed facts of this case, Alatorre is entitled to
    relief.
    Section 1473.7, subdivision (e)(1) indicates that the trial court “shall
    grant the motion to vacate” if the moving party shows, by a preponderance of
    the evidence, that the party is entitled to relief. When the motion is based on
    a misunderstanding of immigration consequences, the petitioner must show
    the challenged conviction is either causing or could cause (1) removal or
    (2) the denial of an immigration benefit, lawful status, or naturalization.
    Subdivision (e)(4) further specifies that to grant relief on an immigration-
    related motion, “the only finding that the court is required to make is
    whether the conviction is legally invalid due to prejudicial error damaging
    25    For instance, at one point in the hearing the court commented, “I’m
    addressing the timeliness issue, because if it’s not timely or it is timely, it’s
    very dispositive towards the rest of the motion.”
    26
    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.”
    Here, there can be little doubt Alatorre has demonstrated that the
    conviction he challenges caused his deportation and has twice undermined
    his attempts to naturalize. These facts were uncontested. We thus proceed
    to consider whether an error occurred that damaged his ability to understand
    the immigration consequences of his plea, and if so, whether Alatorre was
    prejudiced by that error.
    a.     The error can be a defendant’s own
    Alatorre submitted a declaration in support of his motion asserting that
    he did not understand when he pleaded guilty that his conviction would make
    him deportable, 26 and that if he had known, he would have proceeded to trial
    rather than accept the plea. He further stated that his defense attorney did
    not advise him of any adverse immigration consequences. 27
    When Alatorre filed his motion, the courts of appeal were still coming
    to terms with the full effect of the Legislature’s 2019 amendment to section
    1473.7. Among other things, the amendment clarified that successful
    immigration-related petitions did not have to hinge on ineffective assistance
    of counsel claims—a requirement that had been read into the first version of
    the section by reviewing courts. (Camacho, supra, 32 Cal.App.5th at p. 1005;
    26     Alatorre’s conviction qualified as an “aggravated felony” for purposes of
    federal immigration enforcement, which rendered him both deportable and
    ineligible for discretionary forms of relief. (See Moncrieffe v. Holder (2013)
    
    569 U.S. 184
    , 187.)
    27   We also note that the probation report erroneously listed Alatorre as a
    United States citizen—a detail that further corroborates his account.
    27
    § 1473.7, subd. (a)(1).) In untethering these petitions from the Strickland
    standard for assessing ineffective assistance, 28 appellate analysis has come
    to recognize both (1) errors of counsel that did not amount to constitutionally
    deficient representation and (2) the “defendant’s own error” as potential
    bases for claims.
    Camacho was the first case to recognize that the “error” sufficient to
    invalidate a plea for purposes of section 1473.7 “included defendant’s own
    error in believing that a negotiated plea . . . would avoid making him
    deportable, and in not knowing that his plea would subject him to mandatory
    deportation and permanent exclusion from the United States.” 29 (Camacho,
    supra, 32 Cal.App.5th at p. 1009.) And while this error assessment was
    arguably nuanced because Camacho identified two separate errors—one of
    which was attributable to the defendant and the other to his counsel (ibid.)—
    later cases included no similar subtleties.
    Thus in People v. Mejia (2019) 
    36 Cal.App.5th 859
     (Mejia), the court
    held that to establish error sufficient to trigger a section 1473.7 petition,
    “a person need only show by a preponderance of the evidence [that] he did not
    ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential
    adverse immigration consequences of the plea.” (Id. at p. 862.) The court
    28     In Strickland v. Washington (1984) 
    466 U.S. 668
    , 694, the Supreme
    Court held that a defendant demonstrates ineffective assistance of counsel by
    “show[ing] that there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been
    different.”
    29    The superior court was quite familiar with Camacho, summarizing it as
    holding that “an error that damages the defendant’s [sic] ability to minimally
    understand, defend against, and knowingly accept the adverse immigration
    consequences of a plea are prejudicial and would merit relief under 1473.7.”
    28
    agreed with the defendant that “[t]he key to the statute is the mindset of the
    defendant and what he or she understood—or didn’t understand—at the time
    the plea was taken.” (Id. at p. 866.) Quoting Camacho, the Mejia court
    emphasized what it believed was a clear and broad legislative intent in
    holding that the “the focus of the inquiry in a section 1473.7 motion is on the
    ‘defendant’s own error . . . .’ ” (Mejia, at p. 871, italics added.)
    Later 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. (See People v. Jung (2020) 
    59 Cal.App.5th 842
    ,
    856 (Jung) [an “error” under section 1473.7 “may be the moving party’s own
    mistake of law or inability to understand the potential adverse immigration
    consequences of the plea”]; People v. Rodriguez (2021) 
    68 Cal.App.5th 301
    (Rodriguez) [citing Mejia and Jung].) Under this principle, the “error” is that
    the petitioner subjectively misunderstood the immigration consequences of
    the plea, and there is no additional need to establish this mistake was caused
    by some “third party.” 30 (Jung, at p. 856.)
    30     Alatorre’s plea form only indicated that the plea “could result in my
    being deported.” Counsel told the court at the hearing that there was no
    transcript of the plea proceedings in 2008. Alatorre submitted a declaration
    in which he stated he was never advised by his counsel “that a conviction for
    the crime(s) charged could directly result in my deportation, exclusion, and
    denial of naturalization of citizenship from the United States, my home.”
    Two lawyers involved in the representation of Alatorre were subpoenaed by
    the People for the hearing but never testified, presumably because the
    superior court focused on the timeliness issue. We focus on Alatorre’s
    subjective understanding, and given the compelling evidence on that issue we
    find it unnecessary to consider any potential factual disagreement between
    Alatorre and his attorneys as to what he was told in 2008 at the time of the
    plea.
    29
    This is not to say, of course, that a section 1473.7 petition will always
    be granted merely because the petitioner claims to have misunderstood the
    consequences of a plea. But there can be little doubt in this case that
    Alatorre never appreciated his plea and subsequent conviction made him
    automatically deportable. Indeed, it was Alatorre’s misguided efforts to
    become a naturalized citizen within three years of his conviction that brought
    him to the attention of immigration authorities and triggered his own
    deportation. It goes without saying that someone who understood his
    criminal conviction made him automatically deportable would not voluntarily
    contact immigration authorities and advise them of his presence in the
    country. This alone demonstrates it is more likely than not that Alatorre
    failed to “meaningfully understand” the consequences of his plea. (See People
    v. Rodriguez (2021) 
    60 Cal.App.5th 995
    , 1003 [“ ‘A fact is proved by a
    preponderance of the evidence if . . . it is more likely than not that the fact is
    true.’ ”].)
    b.   Alatorre has demonstrated a right to relief
    Alatorre has thus established error under section 1473.7. To assess
    prejudice, we now consider whether he has “ ‘demonstrat[ed] a reasonable
    probability that [he] would have rejected the plea if [he] had correctly
    understood its actual or potential immigration consequences.’ ” (Vivar,
    supra, 
    11 Cal.5th 510
    , 529–530.) And “we have long required the defendant
    corroborate such assertions with ‘ “objective evidence.” ’ ” (Id. at p. 530; see
    also Mejia, supra, 36 Cal.App.5th at p. 872 [“courts should not simply accept
    a defendant's statement of regret regarding the plea [but] should also ‘look to
    contemporaneous evidence’ ”].) This is a “totality of the circumstances”
    analysis, where factors such as the petitioner’s ties to the U.S., plea
    30
    priorities, and the importance of avoiding deportation are paramount.
    (Vivar, at p. 530.)
    There is little in the record to establish Alatorre’s priorities in
    discussing a plea deal with his defense counsel, and indeed, part of his claim
    is that he spoke infrequently with his defense attorney and that another
    attorney actually communicated the prosecutor’s offer to him. But other
    important factors of a type frequently highlighted by appellate courts weigh
    heavily in Alatorre’s favor—particularly his close ties to the U.S. (Mejia,
    supra, 36 Cal.App.5th at p. 872 [citing Mejia’s deep ties to the U.S. as
    “compelling evidence” of prejudice]; Jung, supra, 59 Cal.App.5th at p. 858
    [prejudice demonstrated by the fact that Jung was brought to the United
    States at the age of three, grew up and attended school here, and had her
    entire network of “friends, family, and community ties” in the United States];
    Rodriguez, supra, 68 Cal.App.5th at p. 324 [describing Rodriguez’s “deep,
    lifelong ties to the United States”]; Camacho, supra, 32 Cal.App.5th at
    p. 1011 [prejudice established because Camacho was “brought to the United
    States over 30 years ago at the age of two, has never left this country, and
    attended elementary, middle, and high school in Los Angeles county [and] is,
    and at the time of his plea was, married to a United States citizen with an
    American citizen son, and now also an American citizen daughter”]; accord,
    Vivar, supra, 11 Cal.5th at p. 530.)
    The facts presented in Alatorre’s case are no less compelling. He was
    still a preschooler when he came here in 1987. All of his family lived in the
    United States, including his parents who passed away after he was deported.
    Alatorre married a U.S. citizen, and together they have two children who are
    both citizens. His single involvement with the criminal justice system led to
    his continuing separation from his family. And in the years he spent living in
    31
    the shadow of that mistake, he stayed close to the border so he could see his
    children on weekends.
    Given all of this, we find it reasonably probable that if he had
    understood the certain immigration consequences of his plea, he would have
    either pressed for an immigration-neutral deal, if possible, or taken his case
    to trial. His deep ties to the United States provide “contemporaneous
    evidence” that avoiding deportation would have been a paramount concern if
    he had truly understood his situation. (Lee v. U.S. (2017) 
    137 S.Ct. 1958
    ,
    1961.) Alatorre appears to be in the class of defendants who would “risk
    additional prison time in exchange for holding on to some chance of avoiding
    deportation.” (Id. at p. 1962.) He has thus carried his burden and is entitled
    to relief. (§ 1473.7, subd. (e)(1) [“The court shall grant the motion to vacate
    the conviction or sentence if the moving party establishes, by a
    preponderance of the evidence, the existence of any of the grounds for
    relief”].)
    32
    DISPOSITION
    The order denying the section 1473.7 motion is reversed. The matter is
    remanded to the superior court with directions to grant the motion and
    vacate the conviction.
    DATO, J.
    WE CONCUR:
    HUFFMAN, Acting P. J.
    AARON, J.
    33
    

Document Info

Docket Number: D077894

Filed Date: 10/22/2021

Precedential Status: Precedential

Modified Date: 10/22/2021