People v. Torres CA5 ( 2022 )

Filed 5/9/22 P. v. Torres 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082190
Plaintiff and Respondent,
(Super. Ct. No. VCF250768)
v.
ISAIAS ANDRADE TORRES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Lindsey K. Terry, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, David
Andrew Eldridge and Cavan M. Cox, II, Deputy Attorneys General, for Defendant and
Respondent.
-ooOoo-
* Before Franson, Acting P.J., Meehan, J. and De Santos, J.
Defendant Isaias Andrade Torres appeals from an order denying his motion under
Penal Code section 1473.7, subdivision (a)(1)1 to vacate a 2012 plea of no contest. After
receiving testimony and considering declarations and transcripts, the superior court stated
that “the burden has not been met and I’m going to deny the motion.”
Applying the independent standard of review set forth in People v. Vivar (2021)
11 Cal.5th 510 (Vivar), and giving deference to credibility findings where the superior
court personally observed the witness, we conclude Isaias (1) established by a
preponderance of the evidence that he did not meaningfully understand the mandatory
immigration consequences (permanent deportation) of his no contest plea and (2)
demonstrated a reasonable probability that he would have rejected the plea if he had
understood those consequences.
We therefore reverse the order denying the section 1473.7 motion.
BACKGROUND
Isaias was born in Mexico in August 1964 and came to the United States in 1982.
His permanent resident card states he has been a resident since December 1990. Isaias’s
parents live in Tulare County. His father is approximately 80 years old and his mother is
three or four years younger. Isaias has four brothers and one sister living in Tulare
County. Isaias’s brother Victor was born in Mexico in 1966 and his sister Araceli was
born there in 1978.
From Isaias’s arrival in 1982 until his arrest in 2011, he lived in Porterville and
worked in Tulare County, often in agricultural jobs, such as field work and packing.
Isaias has two children, and they are United States citizens. His son was born in June
1987 to his wife at the time. About a decade later, he had a daughter with a woman who
had two other children. Isaias and his daughter’s mother were together for about 10
years. Isaias helped raise and take care of their daughter and the mother’s other two
1 Unlabeled statutory references are to the Penal Code.
2.
children. Isaias and his daughter’s mother separated about a year before charges were
brought against him.
The Charges
In April 2011, Isaias was arrested for molesting his daughter, which acts allegedly
occurred between May 29, 2009, and May 28, 2010. In July 2011, a criminal information
was filed against Isaias. Isaias was charged with 12 counts of lewd acts with a child
under the age of 14 years in violation of section 288, subdivision (a) and one count of a
forcible lewd act with a child under the age of 14 years in violation of section 288,
subdivision (b)(1). Isaias was in jail from the time of his arrest until his sentencing.
Initially, Isaias was represented by a public defender. Isaias’s siblings, Araceli
and Victor, retained attorney Thomas W. Degn from Visalia to represent Isaias and he
substituted into the case as attorney of record. Degn has been a licensed member of the
State Bar of California since 2001.
Degn recalled that a preliminary hearing was held within a few months and that
the trial was set and continued several times. Degn testified he met with Isaias at the jail
about eight to 10 times, sometimes to listen to recorded statements together. Isaias
testified that he did not remember exactly how many times they met at the jail and
estimated that “it might have been three or four times.” They spoke in Spanish and Isaias
stated that sometimes Degn would use some English words and that he knew “some
words in English, but not that much.” One of the things they discussed was how long
Isaias had been a lawful permanent resident of the United States—that is, when he got his
green card.
Degn testified that he had two discussions with Isaias about the immigration
consequences of the charges prior to trial. One discussion took place at the jail and the
other was at the courthouse. Degn’s advice to Isaias about the immigration consequences
of the charges is described in part II.A.4., post.
3.
The Plea
The trial was set for May 1, 2012. Before the jury was selected and while a
motion in limine relating to a recorded statement was being considered, Degn asked the
court if the tape being played could be paused so he could take a moment with Isaias “to
see if perhaps we can resolve this. I know we’ve kind of gone at it a few times. The DA
has not made any offer. The court’s made a ruling on this.” After a short discussion, the
court stated that “if he wanted to plead for 12 years, I would do that.”
After a discussion off the record, the deputy district attorney stated a 12-year
sentence could be achieved by imposing “six years on Count 1 plus 2 through 12
concurrent” and an additional six years on Count 13. The court agreed with the proposed
sentence structure and then asked Degn where they were from his standpoint. Degn
replied: “I believe due to a concern of you know not wanting his daughter to have to
testify and put her through that, he’s willing to enter a no contest plea pursuant to People
V West at this point and you know of course reserving any rights to appeal for the
motion.” The court then stated: “I’m assuming the reason for the plea is based on the
court’s ruling to allow the statement into evidence.” Degn responded, “Correct.” It
appears they were referring to a recording of a statement made by Isaias before his arrest.
The court then asked Isaias a general question about whether he understood what
was happening. Isaias answered, “Yes.” The court then began a series of specific
questions, which included the following exchange.
“THE COURT: If you’re not a citizen of the United States, you’ll
be deported. You won’t be allowed naturalization, readmission to the
United States, or re-entry into the United States. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: Other than what’s been said, has anyone promised
you anything else or threatened you in any way to get you to enter a plea,
sir?
“THE DEFENDANT: No.”
4.
After the superior court finished its questions to Isaias, the court asked Degn some
questions and then took Isaias’s no contest pleas to the 13 counts. The court vacated the
jury trial scheduled for that day and set a sentencing date.
The Motion to Withdraw the Plea
Degn testified that he and Isaias “had some discussions pretty early on that he had
wanted to withdraw his plea.” Degn did not recall exactly how many days passed before
he learned Isaias wanted to withdraw his plea, but estimated it was within a week or two.
They also addressed Degn withdrawing as attorney of record. Degn testified that when
Isaias “indicated that he wanted to withdraw his plea, I didn’t see a basis, but I agreed
that I would file it on his behalf, and that as part of that, I would then do a motion to
withdraw as attorney, because if he was going to argue that he wasn’t advised right or
something didn’t happen correctly, that there would be a conflict.”
On June 7, 2012, Degn filed a motion to withdraw Isaias’s no contest pleas
pursuant to section 1081. The motion stated it was based on the ground that “defendant
did not enter into a knowing, intelligent, and voluntary plea.” The motion also stated: “It
is believed that a conflict exists between Defendant, and his current counsel, and that
another attorney will have to be appointed in this case. Defendant claims that he is
innocent and wishes to have a fair and full trial on the matter.”
On June 15, 2012, the superior court entered a minute order stating its finding of a
conflict between Degn and Isaias, ordering Degn relieved as counsel of record, and
appointing the public defender as Isaias’s counsel for all purposes. In August 2012,
Isaias’s motion to withdraw his plea was denied. Later that month, Isaias was sentenced
to 12 years in prison.
Immigration Proceedings
On September 1, 2020, the Department of Homeland Security (Department) issued
a notice of custody determination stating Isaias was to be detained pending a final
5.
administrative determination in his case. The Department also issued a warrant for arrest
directing that Isaias be taken into custody for removal proceedings.
On September 17, 2020, Isaias was released from Avenal State Prison. He was
immediately arrested by Immigration and Customs Enforcement (ICE) and the notice of
detention and the arrest warrant were read to him in Spanish. Isaias also was provided
with a notice to appear before an immigration judge in Aurora, Colorado on October 2,
2020. ICE initially took him to a detention facility in Fresno. Later, he was transferred
to the ICE processing center in Aurora.
We take judicial notice of that fact that on November 19, 2020, an immigration
judge in Aurora ordered Isaias’s removal. (See Evid. Code, §§ 452, 455, 459.) This
information is publicly available online through an Automated Case Information portal
maintained by the United States Department of Justice.
Motion to Vacate Plea
On October 1, 2020, Isaias filed a motion to vacate his conviction pursuant to
section 1473.7 in Tulare County Superior Court.2 The prosecution filed an opposition
asserting that (1) the court’s advisement of the immigration consequences of the plea
were understood by Isaias; (2) Isaias failed to show prejudice by a preponderance of
evidence; and (3) his mere allegation of ineffective assistance of counsel did not carry his
burden of proof. Isaias filed a reply, contesting the points raised in the opposition.
On October 21, 2020, the hearing on the motion to vacate commenced. Isaias,
who was being held in Aurora, was not physically present in court. Isaias’s counsel had
subpoenaed Degn, the attorney who represented Isaias at the time of his plea. Degn was
physically present in the courtroom and was the first witness called. Degn’s testimony
2 Under the mandatory provisions of subdivision (b)(1) of section 1473.7, his
motion “shall be deemed timely filed.” (See People v. Perez (2021) 67 Cal.App.5th
1008, 1013.)
6.
about the conversations he had with Isaias about Isaias’s immigration status and the
immigration consequences of the charges are described in part I.A.4., post.
Isaias’s counsel also subpoenaed records of the Tulare County Public Defender’s
Office. Erin Brooks, the supervising attorney of that office, attended the October 21,
2020 hearing and testified in the courtroom. As directed in the subpoena, Brooks brought
copies of the record the public defender’s office had for Isaias’s case. The documents
included numerous papers filed in the case and some handwritten notes. Brooks testified
the public defender’s office had been appointed to represent Isaias in 2011 and the paper
files from that representation had been destroyed. She reviewed notes in an electronic
system and found nothing “reflecting anything about immigration.” She also reviewed
the notes from the later appointment to represent Isaias in 2012 after Degn withdrew, and
she found nothing about immigration consequences. Brooks also testified that she was
not did handle Isaias’s case in either 2011 or 2012.
After Brooks testified, the hearing was continued to October 28, 2020. On that
day, three witnesses testified—Isaias’s sister Araceli, his brother Victor, and Isaias
himself. Araceli and Victor were physically present in the courtroom and testified using
an interpreter. Isaias was at the detention facility in Aurora and appeared by telephone.
The superior court told the interpreter that she would “be telling us what [Isaias] says in
English” and that she would “be translating our English to Spanish and letting us know
what he says, because we can’t really hear him.”
Araceli and Victor testified about retaining Degn and the conversations they had
with him. The main point of their testimony was that Degn did not discuss with them the
immigration consequences of the charges against Isaias. This testimony was offered to
support the inference that Degn provided Isaias little or no advice about the immigration
consequences of a plea or other conviction of the charges. Their testimony is not
described at length here because we accept the superior court’s implied finding that
Degn’s testimony about his conversations with Isaias was credible.
7.
Isaias testified by phone from the detention center in Aurora and used an
interpreter. Isaias was unable to appear using video conferencing. Isaias testified that he
asked Degn what was going to happen with his immigration status because he was a
lawful permanent resident who had already been in the United States for 30 years. In
describing that conversation, Isaias stated: “When I asked Mr. Degn that question, he
just told me not to worry, that he was also gonna work on that, for me not to worry,
everything was gonna be fine. But he never explained to me that that was gonna – that
was gonna affect me.”
Isaias also was asked many questions about the advice he received from Degn
about the immigration consequences that would or could result from the charges. Some
of the questions were open ended as to time and others specifically referenced the time of
the plea. The ambiguity as to when Degn described the immigration consequences of the
charges is not material to the outcome of this appeal, which turns on whether Isaias
understood that deportation was mandatory. The issue of what Degn advised Isaias about
mandatory deportation is resolved by Degn’s testimony. (See pt. II.A.4., post.) We note,
however, Isaias’s testimony during his direct examination:
“Q. Did Mr. Degn ever advise you that if you were convicted of
these offenses that for immigration purposes it would be considered an
aggravated offense and you would be subject to mandatory deportation?
“A. No. He never told me anything about that.” (Italics added.)3
After a question about getting ready to go to trial, Isaias was asked if he recalled
entering a plea of no contest before trial. Isaias responded: “Yes. That’s what [Degn]
3 The terms “aggravate offense” and “mandatory deportation” are italicized because
they are specific terms that significantly restrict the scope of the question. Isaias’s
answer does not contradict Degn’s testimony because Degn did not say he discussed the
concept of an “aggravated” felony with Isaias and, most importantly for purposes of this
appeal, Degn testified he said deportation “could” happen, not that it was mandatory or
“would definitely happen.”
8.
told me, that that was the reason that I could use that to appeal. I didn’t know what that
was.” We interpret this response to mean that Degn told Isaias that a no-contest plea
would preserve his right to appeal the ruling allowing the statements Isaias made on the
day of his arrest to be admitted into evidence.
Isaias’s attorney also asked him whether he would have chosen to go to trial if he
had known that the plea of no contest to the charges subjected him to mandatory
deportation. Isaias answered: “Well if he would have explained to me what would have
happened, then I think I would’ve decided to fight my case, because they will never allow
me to speak.” To clarify this answer, his attorney asked: “Are you saying if you had
known at the time of your plea that these charges would subject you to … mandatory
deportation, would you have gone to jury trial?” Isaias answered: “If he would have
explained to me exactly how everything works, I think I would’ve said no.”
After hearing the testimony and counsel’s arguments, the superior court denied
Isaias’s motion to vacate, stating “it comes down to a preponderance of the evidence.”
The court noted there were “a lot of discrepancies between the testimony of” Isaias and
Degn, with Degn testifying that he did talk to Isaias about the immigration consequences,
which included deportation. The court stated the record reflected that Isaias “was told on
more than one occasion by more than one person that he would be deported. Ultimately
the judge is saying you’re gonna be deported. You understand this is what a no-contest
plea is.” The court concluded its ruling by stating:
“Finally, the question asked of Mr. Torres today is, ‘What would you have
done if you had known this?’ And he said, ‘I think I would’ve said no.’
That doesn’t say, like, there is no way I would have said no. He said today,
‘I think I would have said no.’
“And I wrote that down, because it struck the Court. So I believe that
based on that, the burden has not been met and I’m going to deny the
motion.”
In December 2020, Isaias filed a notice of appeal.
9.
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. 528.) 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.)
A. Grounds for Vacating a Conviction
The version of section 1473.7, subdivision (a) in effect when the motion was filed
and heard in 2020 stated:4
“A person who is no longer in criminal custody may file a motion to vacate
a conviction or sentence for any of the following reasons: [¶] (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 plea of guilty or nolo contendere. A finding of legal invalidity may,
but need not, include a finding of ineffective assistance of counsel.”
(Former § 1473.7, subd. (a)(1).)
Pursuant to section 1473.7, subdivision (e)(1), the moving party has the burden of
proof by a preponderance of the evidence. (See Vivar, supra, 11 Cal.5th at p. 517.)
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).) Accordingly, “[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, at p. 517.)
4 The amendment adopted by the Legislature in 2021, which became effective on
January 1, 2022, is not relevant to the issues presented in this appeal. (See Stats. 2021,
ch. 420, § 1.) The amendment replaced the phrase “plea of guilty or nolo contendere”
with the broader phrase “conviction or sentence.” (§ 1473.7, subd. (a)(1).)
10.
B. Standard of Review
A superior court’s decision to grant or deny a section 1473.7 motion is subject to
independent review. (Vivar, supra, 11 Cal.5th at pp. 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.) Independent review is not the
same as de novo review because an appellate court may not second-guess factual findings
based on the superior court’s own observations. (Ibid.) Thus, factual findings based on
the credibility of witnesses that the superior court heard and observed are entitled to
deference. (Id. at pp. 527–528.) In contrast, where a factual determination is derived
entirely from written declarations, transcripts, and other documents (i.e., a cold record),
the superior court and appellate courts are in the same position and deference is
unwarranted. (Id. at p. 528.) “Ultimately it is for the appellate court to decide, based on
its independent judgment, whether the facts establish prejudice under section 1473.7.”
(Ibid.)
The superior court received testimony from witnesses present in the courtroom
and testimony from Isaias over the telephone. Isaias was at the Aurora detention facility
and, therefore, the court was not able to see Isaias and observe his demeanor. The court
also stated that the interpreter would be “letting us know what he says, because we can’t
really hear him.”
In Vivar, the Supreme Court did not address how an appellate court should treat
testimony when the witness is not present in the courtroom, appears by telephone, and
testifies through an interpreter. Based on the rationale that deference is not warranted for
factual determinations made by a superior court when the appellate court is in the same
position, we conclude deference is not required when the witness is not physically present
in the courtroom, appears by telephone, and testifies through an interpreter. Therefore,
we conclude the superior court’s analysis of Isaias’s testimony is not entitled to deference
and we will independently evaluate that testimony.
11.
II. SHOWING OF PREJUDICIAL ERROR
When examining whether a moving party established the existence of prejudicial
error, we first consider whether he demonstrated the existence of an error and then
address whether the error was prejudicial.
A. Defendant’s Own Error
1. Aggravated Felonies and Related Consequences
Federal immigration law provides the foundation for our review of Isaias’s
understanding of the immigration consequence of his plea. Federal immigration statutes
define the term “aggravated felony” to include “sexual abuse of a minor.” (8 U.S.C. §§
1101(a)(43)(A).) An “alien who is convicted of an aggravated felony at any time after
admission is deportable.” (8 U.S.C. § 1227(a)(2)(A)(iii).) In addition, an “alien who at
any time after admission is convicted of … a crime of child abuse … is deportable.” (8
U.S.C. § 1227(a)(2)(E)(i).)
Before 1996, certain lawful permanent residents could apply for a discretionary
waiver of deportation. (United States v. Garcia-Morales (S.D.Cal. 2015) 150 F.Supp.3d
1201, 1203, fn. 1.) In 1996, Congress amended the immigration statutes to make person
convicted of an aggravated felony ineligible for such relief. (Ibid.. see 8 U.S.C. §
1229b(a)(3) [removal for person convicted of aggravated felonies cannot be cancelled].)
Consequently, a lawful permanent resident convicted of an aggravated felony is subject
to deportation, is excluded from readmission to the United States, and cannot become a
naturalized citizen. (See People v. Perez (2018) 19 Cal.App.5th 818, 822 [advisement
form used in San Diego County in 2005 referred to aggravated felonies and these three
consequences].) Additional consequences of an aggravated felony conviction include
disqualification “from most waivers and forms of relief from removal” and “greatly
reduced procedural rights in detention and removal proceedings.” (Kesselbrenner &
Rosenberg, Immigration Law and Crimes (Winter Ed./ 2021) § 7:22, p. 695, fns.
omitted.) Example of disqualification from forms of relief include (1) not being eligible
12.
for voluntary departure in a removal proceeding and (2) being barred from applying for,
or being granted, asylum. (Id. at pp. 830–831; see 8 U.S.C. §§ 1229c(a)(1) [alien
convicted of an aggravated felony may not be permitted to voluntarily depart the United
States], 1158(b)(2)(B)(i) [asylum].)
2. Defendant’s Subjective Misunderstanding
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
(2021) 70 Cal.App.5th 747, 768–769; People v. Mejia (2019) 36 Cal.App.5th 859, 871;
People v. Camacho (2019) 32 Cal.App.5th 998, 1009 (Camacho).) In Alatorre, the
Fourth District 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.) This principle is significant
here because Isaias need not prove that (1) the superior court erred in advising him of the
immigration consequences of his plea or (2) his counsel erred by providing ineffective
assistance during the plea process. Accordingly, in this appeal, we only address whether
Isaias has proven by a preponderance of the evidence that he did not meaningfully
understand and knowingly accept mandatory deportation, one of the immigration
consequences of his plea.
3. The Court’s Immigration Advisement
It is undisputed, based on the transcript from the plea hearing that Isaias answered
“Yes” when the superior court asked if he understood the following advisement: “If
you’re not a citizen of the United States, you’ll be deported. You won’t be allowed
naturalization, readmission to the United States, or re-entry into the United States.”
13.
This advisement is similar to the advisement given to the defendant in Camacho
and is worded more strongly than the advisement required by section 1016.5.5 At the
plea hearing in Camacho, “the prosecutor stated, ‘If you are not a citizen of the United
States your conviction in this case will result in your being deported, excluded from the
U.S., and denied naturalization.’ ” (Camacho, supra, 32 Cal.App.5th at p. 1002, fn. 2.)
In Camacho, the appellate court concluded that the advisement could not be taken as
irrebuttable proof that the defendant understood and accepted the adverse immigration
consequences of his plea. (Id. at p. 1011, fn. 8; see People v. Patterson (2017) 2 Cal.5th
885, 889, 898 [a § 1016.5 advisement does not categorically bar a motion to withdraw the
plea under § 1018 on grounds of mistake or ignorance].) In accordance with these
decisions, the fact Isaias said he understood the court’s advisement does not end our
inquiry. Stated any way, when Isaias told the court that he understood, it is possible he
was mistaken and, in fact, he did not meaningfully understand and accept the adverse
immigration consequences of his plea.
4. Immigration Advice from Counsel
One of the reasons that courts are required to advise defendants about immigration
consequences “is to enable the defendant to seek advice from counsel about the actual
risk of adverse immigration consequences.” (People v. Patterson, supra, 2 Cal.5th at p.
896.) As a result, what counsel told a defendant about the immigration consequences of
his plea may be more important when evaluating his subjective understanding than the
advisement received from the court.
5 Section 1016.5, subdivision (a) 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.” (Italics added.)
14.
In this case, Degn testified in person at the hearing on Isaias’s motion to vacate his
conviction. As a result, the superior court had the opportunity to observe Degn as he
testified and, therefore, we defer to its implied finding that Degn’s testimony about the
immigration advice he gave Isaias was credible. (See Vivar, supra, 11 Cal.5th at pp.
527–528.)
Degn testified he learned that Isaias was a lawful permanent resident with a
greencard. Degn stated he had two conversations with Isaias about immigration
consequences—once at the jail and once at the courthouse. Degn described the events
leading to one conversation about immigration consequences by stating:
“I think as we were getting closer to the trial date and Mr. Torres was pretty
strong-willed and wanting to do his trial, I knew as we were getting closer
to that and the offers were getting better from not necessarily the people,
but the judge was willing to tweak some things and have what would look
like a pretty good resolution, as we discussed that, I did talk to him about
immigration consequences.”
Degn did not recall taking any notes of the conversation, produced no notes in
response to a subpoena duces tecum, and described the contents of the conversation about
deportation as follows:
“The discussion we had was that could happen. I did not tell him it would
definitely happen at that point when we would have those discussions.
What I said that was the conviction would qualify him for that adverse
immigration consequence, that he could be deported. I think I said they
still – the government’s still a bureaucracy. How they enforce that, I don’t
know.”
We accept this testimony as an accurate description of what Degn told Isaias.
Degn also testified that he did not practice immigration law and did not retain an
immigration attorney to review Isaias’s case. When asked if he sought the advice of an
immigration attorney about the consequence of Isaias’s plea, Degn stated:
“I’m not entirely sure. I know that shortly before he became my client we
had -- I was active in the local bar. We had an immigration attorney come
and speak and talk about very specifically about the immigration
15.
consequences to people and specifically as to different statuses. So I find it
fascinating because Mr. Torres was -- had his green card. He was a
permanent resident was my understanding. It had to be a pretty severe
conviction for a crime before they would take action. So the attorney that
gave that seminar and I had some subsequent conversations .…”
Degn did not testify he advised Isaias that, for immigration purposes, the felony
charges were aggravated felonies and crimes involving moral turpitude.
When Isaias testified, he was asked if Degn advised him that the offenses would
be considered aggravated offenses for immigration purposes and subject him to
mandatory deportation. Isaias answered: “No. He never told me anything about that.”
This testimony does not contradict Degn’s testimony that he told Isaias “that he could be
deported,” which is different from telling him that deportation was mandatory. (Italics
added.)6
5. Proof of a Misunderstanding
Based on our independent review of the record and giving deference to the
superior court’s implied credibility findings regarding the witnesses observed, we find it
is more likely than not that Isaias did not meaningfully understand and knowingly accept
mandatory deportation as a consequence of his plea. (See § 1473.7, subd. (e)(3)
[preponderance of evidence standard].) We find Degn advised Isaias that he could be
deported, that a government bureaucracy was involved, and that Degn did not know how
deportation would be enforced. This advice did not inform Isaias that he was pleading to
aggravated felonies, that deportation was mandatory, and that immigration authorities
lacked the discretion not to deport him.
The advice given to Isaias is similar to the information provided the defendant in
Vivar. He was given an advisement that deportation was a possibility when, in fact, it
was mandatory. (Vivar, supra, 11 Cal.5th at p. 533.) Like that defendant, Isaias was
6 Similarly, Isaias’s testimony that he was not advised the offenses were considered
crimes involving moral turpitude does not directly contradict Degn’s testimony, which
made no mention of crimes involving moral turpitude.
16.
given false hope by being told that deportation could happen instead of being told that
deportation was mandatory. Here, we find it is more likely than not that Isaias did not
meaningfully understand and knowingly accept mandatory deportation as one of the
immigration consequences of his plea. (§ 1473.7, subds. (a)(1), (e)(4).)
C. Prejudice from the Error
1. Legal Standard for Prejudice
Although section 1473.7 requires the moving party to establish prejudicial error, it
does not define the word “prejudicial.” Our Supreme Court addressed the lack of a
definition by deciding an error is prejudicial for purposes of section 1473.7 if the
defendant “demonstrat[es] 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 at p. 529.) In assessing whether a reasonable probability has
been shown, courts must consider the totality of the circumstances. (Ibid.) 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 removal, (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. (Id. at pp. 529–530.)
The reasonable probability standard “ ‘ “does not mean more likely than not.” ’ ”
(People v. Rodriguez (2021) 68 Cal.App.5th 301, 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.)
2. Showing of Prejudice
Isaias’s declaration stated that if he had known that his plea would have such
severe adverse immigration consequences, he would have proceeded to trial. His
17.
declaration stated that, at the time of his plea, the United States was his home, he had
been here for 30 years, and his family was here. As described earlier and as observed by
the superior court, Isaias’s oral testimony was not as strongly worded. Isaias stated that
“I think I would’ve decided to fight my case” and “I think I would’ve said no” to the plea
offered if the immigration consequences had been fully explained.
Initially, we note that respondent has not cited, and our independent research has
not located, any published case concluding that, under the standard for prejudice adopted
in Vivar, a defendant must testify that he or she absolutely would have rejected the plea if
he or she had fully understood its immigration consequences. We decline to be the first
appellate court to adopt such a conclusion because it is not compatible with the
reasonable probability test for establishing prejudice. (See People v. Rodriguez, supra,
68 Cal.App.5th at p. 324.)
At the other end of the continuum, we note that courts do not accept at face value a
defendant’s assertion that he or she would have behaved differently or likely would have
behaved differently if fully aware of the immigration consequences of the plea. Such
assertions must be corroborated with objective evidence, some of which must be
contemporaneous with the plea. (Vivar, supra, 11 Cal.5th at p. 530.) In other words,
courts do not simply accept a defendant’s statement of regretting the plea but must
substantiate that statement by looking to contemporaneous evidence. (People v. Mejia,
supra, 36 Cal.App.5th at p. 872.)
The first contemporaneous evidence we consider is Isaias’s personal ties to the
United States. (Vivar, supra, 11 Cal.5th at p. 530 [defendant’s ties to the United States
are particularly relevant].) Isaias came to the United States in 1982 and has lived here is
entire adult life. His parents and five siblings lived in Tulare County. From his arrival
until his arrest in April 2011, approximately 29 years, he worked in Tulare County. His
son and his daughter were citizens of the United States. These details strongly support
the inference that mandatory deportation was an outcome he would have sought to avoid.
18.
(See Vivar, supra, at p. 532 [family ties and other objective, contemporaneous facts
corroborated defendant’s prejudice claim].)
Other contemporaneous evidence includes Isaias’s concerns and priorities at the
time of the plea. Degn testified that one of Isaias’s concerns about entering a plea was
Isaias’s belief that he was innocent of the charges. Degn also stated that Isaias “was
pretty determined to go to trial.” Furthermore, Isaias’s reluctance to enter a plea is
corroborated by Degn’s testimony that, within a week or two of entering the plea, Isaias
wanted to withdraw it. This reluctance, though not based on immigration consequences,
is relevant to our inquiry into prejudice because it makes it easier for Isaias to establish
the requisite 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 at p. 529.) When a defendant is shown to be wavering between going to trial and
entering a plea, it takes less evidence to tip the balance towards a reasonably probability
that he would have gone to trial than when a defendant readily accepts the plea.
Based on our independent review of Isaias’s testimony and the surrounding
circumstances, we conclude that if Isaias had meaningfully understood the mandatory
immigration consequences of his plea in 2012 (i.e., permanent deportation), versus the
potential risks and benefits of going to trial, it is reasonably probable that he would not
have pleaded guilty. A reasonable probability can be established without Isaias
establishing it was more likely than not that he would have gone to trial. (See People v.
Rodriguez, supra, 68 Cal.App.5th at p. 324.) He need only establish a reasonable chance,
which is more than an abstract possibility. (Ibid.)
Consequently, we conclude Isaias 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 with directions to grant his section 1473.7 motion. (See People v. Alatorre,
supra, 70 Cal.App.5th at p. 771 [reversed order denying the § 1473.7 motion and
19.
remanded with directions to grant the motion]; People v. Rodriguez (2021) 60
Cal.App.5th 995, 1006 [same]; Mejia, supra, 36 Cal.App.5th at p. 874 [same]; Camacho,
supra, 32 Cal.App.5th at pp. 1004, 1012 [same].)7
DISPOSITION
The order denying the section 1473.7 motion is reversed. The matter is remanded
and the superior court is directed to file an order granting the motion and vacating the
conviction no later than 10 calendar days after the issuance of remittitur.
7 Since the statute became effective on January 1, 2017, the Fifth District has
received approximately 24 appeals involving motions to vacate pursuant to subdivision
(a)(1) of section 1473.7. Of the 13 appeals from Tulare County, five denials of a motion
to vacate have been affirmed, four denials (including this case) have been reversed with
directions to grant the motion, and three denials have been reversed for a rehearing. The
other appeal is pending.
In one of the cases affirming a denial, the California Supreme Court granted
review to consider whether the defendant demonstrated prejudice from trial counsel’s
failure to properly advise him of the immigration consequences of his plea. (People v.
Espinoza (May 28, 2021, F079209) [nonpub. opn.] rev. granted Sep. 15, 2021, S269647.)
20.