People v. Lopez ( 2022 )

Filed 9/26/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315320
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA030413)
v.
MIGUEL LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Martin Larry Herscovitz, Judge. Reversed and
remanded with directions.
Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Steven D.
Matthews, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Miguel Lopez appeals the denial of his motion to withdraw
his plea and vacate his conviction pursuant to Penal Code 1
section 1473.7, subdivision (a).
The Legislature has declared that section 1473.7, as
amended by Assembly Bill No. 2867, “shall be interpreted in the
interests of justice and consistent with the findings and
declarations made in Section 1016.2 of the Penal Code.” (Stats
2018, ch. 825, § 1, subd. (c).) Among other legislative findings
and declarations, section 1016.2 provides:
“(g) The immigration consequences of criminal convictions
have a particularly strong impact in California. One out of every
four persons living in the state is foreign-born. One out of every
two children lives in a household headed by at least one foreign-
born person. The majority of these children are United States
citizens. It is estimated that 50,000 parents of California United
States citizen children were deported in a little over two years.
Once a person is deported, especially after a criminal conviction,
it is extremely unlikely that he or she ever is permitted to return.
“(h) It is the intent of the Legislature to codify Padilla v.
Kentucky[ 2] and related California case law and to encourage the
growth of such case law in furtherance of justice and the findings
and declarations of this section.”
In People v. Vivar (2021) 11 Cal.5th 510, 516 (Vivar), our
Supreme Court elaborated on these findings:
“The population of the United States includes millions of
immigrants who arrived as children, attended schools, and found
1 Undesignated statutory references are to the Penal Code.
2Padilla v. Kentucky (2010) 559 U.S. 356 [176 L.Ed.2d 284,
130 S.Ct. 1473].
2
work here. (See Department of Homeland Security v. Regents of
Univ. of Cal. (2020) 591 U.S. ___ [207 L.Ed.2d 353, 140 S.Ct.
1891, 1932] (conc. & dis. opn. of Kavanaugh, J.).) Whether they
become citizens or not, these immigrants’ ties to our country are
evident not only in their work and schooling, but in how they’ve
formed attachments and families of their own. In contrast, what
ties they once had to their country of birth—from which they may
lack even memories—often slip away. So when long-standing
noncitizen residents of this country are accused of committing a
crime, the most devastating consequence may not be a prison
sentence, but their removal and exclusion from the United
States. (See People v. Martinez (2013) 57 Cal.4th 555, 563
(Martinez).) Because the prospect of deportation ‘is an integral
part,’ and often even ‘the most important part,’ of a noncitizen
defendant’s calculus in responding to certain criminal charges
(Padilla v. Kentucky (2010) 559 U.S. 356, 364 [176 L.Ed.2d 284,
130 S.Ct. 1473] (Padilla)), both the Legislature and the courts
have sought to ensure these defendants receive clear and
accurate advice about the impact of criminal convictions on their
immigration status, along with effective remedies when such
advice is deficient. (E.g., Pen. Code, §§ 1016.2 et seq., 1473.7; Jae
Lee v. United States (2017) 582 U.S. ___ [198 L. Ed. 2d 476, 137
S.Ct. 1958] (Lee); Padilla, at p. 360; Martinez, at p. 559; People v.
Superior Court (Giron) (1974) 11 Cal.3d 793, 798.)”
Against this backdrop, appellant contends that at the time
of his plea, defense counsel failed to advise him that he would be
subject to mandatory deportation and permanent exclusion from
the United States as a consequence of pleading no contest to an
aggravated felony under federal immigration law. As a result,
appellant suffered prejudicial error which damaged his ability to
3
meaningfully understand, defend against, and knowingly accept
the actual adverse immigration consequences of the conviction
and sentence resulting from his plea. Appellant maintains that
because his claim of prejudicial error was supported by objective
corroborative evidence, the superior court erroneously denied his
motion to withdraw his plea and vacate his conviction.
We conclude appellant has demonstrated a reasonable
probability that if he had been properly advised of the
immigration consequences of his plea, he would not have pleaded
no contest to an offense that would subject him to mandatory
deportation from the United States. Accordingly, we reverse and
remand with instructions to grant appellant’s motion to
withdraw his plea and vacate his conviction pursuant to section
1473.7, subdivision (e).
FACTUAL AND PROCEDURAL BACKGROUND
1. The charged offenses 3
Between December 22, 1997, and May 20, 1998, appellant
and codefendant Gustavo Montoya took or attempted to take
money from four businesses by threatening the employees with
what appeared to be a handgun. The total estimated loss came to
$946.
Upon his arrest, Montoya provided officers with an air
pellet gun—a replica of a .45-caliber semiautomatic handgun—
which he said was the weapon used in the crimes. Montoya
identified appellant as the driver of the getaway car. Appellant
admitted the air gun belonged to him.
3 Because no preliminary hearing took place in this case,
we have drawn the facts underlying the charges from the
probation officer’s report.
4
Appellant and Montoya were charged by information with
four counts of second degree robbery (§ 211, counts 1–3, 5) and
one count of attempted second degree robbery (§§ 664/211,
count 4).
2. The plea
At the arraignment on the charges on August 4, 1998, the
prosecution offered a plea deal pursuant to which appellant
would plead to one count of second degree robbery and receive a
maximum sentence of two years in state prison. Appellant
accepted the offer.
The prosecutor advised appellant that the maximum term
on all the charges was eight years eight months in state prison,
but under the plea agreement, appellant “could receive anywhere
up to two years in state prison.” With respect to the immigration
consequences of the conviction, the prosecutor stated: “Also, if
you are not a citizen of the United States, your conviction may
result in your being deported, denied naturalization or denied
readmission if you leave the country.” When asked if he
understood, appellant answered, “Yes.”
Appellant then pleaded no contest to one count of second
degree robbery. Appellant’s attorney joined in the waivers,
concurred in the plea, and stipulated to a factual basis for the
plea on appellant’s behalf, adding “that this was entered as a
result of a plea bargain the maximum two year term and we both
believe that it is in the best interest of [appellant] to enter this
plea bargain and not necessarily an admission of culpability or
liability, that this case is to be controlled by People against
West.[ 4]”
4 People v. West (1970) 3 Cal.3d 595.
5
The trial court found appellant had knowingly, intelligently
and effectively waived his constitutional rights, and freely and
voluntarily entered into the plea. At the request of defense
counsel, sentencing was put over to a later date to give appellant
an opportunity to prepare and present factors in mitigation.
3. Sentencing
According to the preconviction probation report, appellant
was 22 years old at the time of the offenses. He had no prior
criminal record and had a stable employment and residential
history over the preceding five years. The probation officer noted
that these crimes appeared to be out of character for appellant,
but nevertheless recommended that probation be denied.
The probation and sentencing hearing took place on
August 31, 1998. The court sentenced appellant to state prison
for the low term of two years on count 1, and dismissed counts 2
through 5 in furtherance of justice.
4. The motion to vacate the conviction 5
Appellant filed his motion to vacate the conviction
pursuant to section 1473.7, subdivision (a)(1) on July 12, 2021.
In support of the motion, appellant submitted a declaration
signed under penalty of perjury along with several exhibits.
Appellant’s declaration
In his declaration appellant averred:
Appellant came to the United States when he was 13 years
old and lived in the United States continuously until he was
5 On March 9, 2017, appellant filed a motion to vacate his
conviction pursuant to section 1016.5. That motion was
withdrawn, and appellant filed a second motion to vacate his
conviction under section 1016.5 on August 30, 2018. That motion
was ordered off calendar on October 10, 2018.
6
deported in August 2016. He completed middle school and high
school here and was a lawful permanent resident of the United
States. Having grown up in the United States, appellant
considered himself an American.
In court proceedings on August 4, 1998, appellant entered a
plea of no contest to one count of second degree robbery in People
v. Miguel Lopez, Los Angeles Superior Court case No.
LA030413-02. Appellant was 22 years old at the time and had no
prior experience with the criminal justice system: He had never
been arrested, much less convicted of any crime before. He had
no prior knowledge of the immigration consequences of a
conviction.
At the time he entered his plea, appellant was not advised
that a conviction for second degree robbery would constitute an
aggravated felony under federal immigration law. Appellant was
unaware that as a consequence of this conviction, he would be
subject to mandatory deportation and permanently ineligible for
lawful permanent residency in the United States.
Although he received a general advisement during the plea
proceedings that immigration consequences could occur,
appellant incorrectly presumed that he would not suffer any
adverse immigration consequences because of his status as a
lawful permanent resident.
While appellant was in custody, his family retained
attorney David Kwan to represent him. Appellant believes
Mr. Kwan thought appellant was a citizen since he never
mentioned anything about adverse immigration consequences
stemming from a conviction. Mr. Kwan never asked appellant
about his immigration status, he did not explain the significance
to a noncitizen of a conviction for an aggravated felony under
7
federal immigration law, and he did not tell appellant that he
would lose his lawful permanent resident status if he entered a
plea to a robbery charge. Instead, the times he met with
appellant, Mr. Kwan discussed only the seriousness of appellant’s
case, how much time he was facing if convicted, and his goal of
trying to get jail time and avoid state prison.
Appellant first learned of the mandatory immigration
consequences of his conviction when he was deported in August
2016 and consulted with an immigration attorney. At that time,
and in August 2018, and again in June 2021, appellant’s
immigration attorney advised him that he was permanently
ineligible for lawful residence in the United States because of his
aggravated felony conviction.
Although he was warned at the time of his plea of
immigration consequences that could occur, due to his own error
and ignorance appellant did not appreciate the seriousness of the
charge and the mandatory immigration consequences that would
occur by entering a plea. Had he known then that he was
bargaining away his lawful resident status, appellant would
never have accepted a plea, but instead would have exercised his
right to a jury trial to attempt to remain with his family in the
United States.
Until he was deported, appellant lived with his mother,
whom he supported financially and emotionally. Appellant had
steady employment, and his mother relied on appellant’s income
to pay her mortgage and household expenses. Now these costs
are borne by his siblings, which is a great hardship for them.
Appellant is very close with his brother and two sisters, as well
as his five nieces and his nephew, all of whom are United States
citizens.
8
Appellant has been living in Rosarito, Baja California,
Mexico since he was deported. He has no friends or family in
Mexico. Appellant has tried to find work as a laborer,
maintenance worker, housekeeper, or any available job, but
because of his age, the pandemic, and the current economic
situation in Mexico, appellant has not been able to secure any
employment. He is totally dependent on his family in the United
States for financial support. Appellant’s former employer (Ability
Pathways in Sun Valley, California) has assured him of
employment if he is able to regain lawful entry to the United
States.
The exhibits
In support of the motion, appellant submitted the following
documents:
Exhibit A: The reporter’s transcript of the court
proceedings during which he entered his no contest plea.
Exhibit B: A letter from the president of Ability Pathways,
where appellant had been employed prior to his removal from the
United States, stating appellant was a diligent worker and an
excellent employee. The company offered to sponsor appellant as
an immigrant worker.
Exhibit C: Letters from appellant’s mother, two of his
siblings, and a niece, attesting to appellant’s good character, deep
roots in the United States, close ties to his family in the United
States, and lack of ties to his home country. Appellant’s mother
described how she immigrated to Los Angeles in 1985 with five
children between the ages of four and twelve after the death of
her husband. Appellant became a father figure to his younger
siblings and always took care of his mother, whose health and
well-being have declined significantly since appellant was
9
deported. Appellant also became a father figure to his young
nieces when his brother-in-law died, caring for them to enable his
sister to finish nursing school.
Exhibit D: A letter dated August 24, 2016, from the
Department of Homeland Security, U.S. Immigration and
Customs Enforcement, advising appellant that he is “prohibited
from entering, attempting to enter, or being in the United States”
at any time because he has been “convicted of a crime designated
as an aggravated felony, as defined under section 101(a)(43) of
the [Immigration and Nationality] Act.”
5. The hearing and ruling on the motion to vacate
The hearing on appellant’s motion to vacate his conviction
took place on September 20, 2021. Appellant did not appear
personally because of his removal to Mexico. The trial court
decided the motion entirely on the written documents and
argument of counsel.
Appellant’s counsel argued that he had not been advised of
the mandatory immigration consequences that would result from
this conviction, and the advisement that a conviction “may result
in” certain adverse immigration consequences was insufficient to
inform appellant of the actual consequences of mandatory
deportation and permanent exclusion from the United States.
The government did not file a written opposition, but
argued at the hearing that appellant was adequately advised of
his rights and the immigration consequences of his plea, he
accepted the plea bargain to avoid “a lot of time in prison,” and
the People intended that appellant be convicted of a felony. The
10
court stated that the plea and sentencing 6 transcripts contained
no indication the prosecutor was willing to offer anything less
than a two-year prison term. The court also declared it found no
contemporaneous objective evidence corroborating appellant’s
assertions. Appellant’s attorney argued that such evidence could
be found in appellant’s deep ties to the United States and his
status as a lawful permanent resident at the time of his plea.
The trial court denied the motion, finding insufficient
objective evidence that appellant would have rejected the plea
had he understood the true immigration consequences, and
failing to see any alternative disposition that could have been
negotiated.
DISCUSSION
I. Applicable Law
A. Section 1473.7
Section 1473.7 authorizes a defendant who is no longer in
criminal custody to file motion to vacate a conviction or sentence
where “[t]he conviction or sentence is legally invalid due to
prejudicial error damaging the moving party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
conviction or sentence.” (§ 1473.7, subd. (a)(1); People v.
Manzanilla (2022) 80 Cal.App.5th 891, 904 (Manzanilla).)
Effective January 2019, the legislation was amended to provide
that “[a] finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (§ 1473.7, subd.
(a)(1), as amended by Stats. 2018, ch. 825, § 2; People v. Mejia
6 No sentencing transcript is included in the record on
appeal.
11
(2019) 36 Cal.App.5th 859, 862 (Mejia).) Thus, although the
motion to vacate is fundamentally based on errors by counsel, the
moving party need not demonstrate that “counsel’s
representation fell below an objective standard of
reasonableness” “under prevailing professional norms.”
(Strickland v. Washington (1984) 466 U.S. 668, 688; People v.
Camacho (2019) 32 Cal.App.5th 998, 1008 (Camacho).)
Section 1473.7 requires a court to “vacate a conviction or
sentence upon a showing, by a preponderance of the evidence, of
‘prejudicial error damaging the moving party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere.’ (§ 1473.7, subds. (e)(1), (a)(1).)
. . . If the motion is meritorious, ‘the court shall allow the moving
party to withdraw the plea.’ (Id., subd. (e)(3).)” (Vivar, supra, 11
Cal.5th at p. 523.)
B. Federal immigration law
A person convicted of an “aggravated felony” is subject to
mandatory deportation and permanent exclusion from the United
States. (8 U.S.C. § 1227(a)(2)(A)(iii) [“Any alien who is convicted
of an aggravated felony at any time after admission is
deportable”]; 8 U.S.C. § 1228(c) [“An alien convicted of an
aggravated felony shall be conclusively presumed to be
deportable from the United States”]; United States v. Palomar-
Santiago (2021) ___U.S.___ [141 S.Ct. 1615, 1619, 209 L.Ed.2d
703, 707]; Moncrieffe v. Holder (2013) 569 U.S. 184, 187 [185
L.Ed.2d 727, 133 S.Ct. 1678 [a noncitizen convicted of a crime
classified as an “ ‘aggravated felony’ ” is not only deportable, but
also ineligible for discretionary forms of relief].)
12
Aggravated felonies include “crime[s] of violence . . . for
which the term of imprisonment [is] at least one year” (8 U.S.C.
§ 1101(a)(43)(F)), and any “theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment [is] at least one year” (8 U.S.C. § 1101(a)(43)(G)).
The term “crime of violence” includes “an offense that has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another, or [¶] . . . any
other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.”
(18 U.S.C. § 16(a) & (b).)
Under these definitions, robbery is an aggravated felony
under United States immigration law, conviction of which
subjects a noncitizen to mandatory removal from the United
States. (8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1228(c).)
C. Standard of review for section 1473.7 motion
proceedings
Our Supreme Court has endorsed the independent
standard of appellate review for section 1473.7 motion
proceedings. (Vivar, supra, 11 Cal.5th at pp. 524–528.) As the
high court explained, “ ‘[U]nder independent review, an appellate
court exercises its independent judgment to determine whether
the facts satisfy the rule of law.’ [Citation.] When courts engage
in independent review, they should be mindful that
‘ “[i]ndependent review is not the equivalent of de novo review
. . . .” ’ [Citation.] An appellate court may not simply second-
guess factual findings that are based on the trial court’s own
observations.” (Id. at p. 527.) The court continued, “Where, as
here, the facts derive entirely from written declarations and other
13
documents, however, there is no reason to conclude the trial court
has the same special purchase on the question at issue; as a
practical matter, ‘[t]he trial court and this court are in the same
position in interpreting written declarations’ when reviewing a
cold record in a section 1473.7 proceeding. [Citation.] Ultimately
it is for the appellate court to decide, based on its independent
judgment, whether the facts establish prejudice under section
1473.7.” (Id. at p. 528.)
II. Appellant Demonstrated Error Under Section
1473.7, Subdivision (a)(1)
A. Timeliness.
Interspersed throughout the respondent’s brief are
reminders that appellant’s motion to vacate was heard 23 years
after his conviction in this case and five years after he was
ordered removed from the country by federal immigration
authorities. By repeatedly mentioning this fact, respondent
seems to suggest that the motion to vacate was not timely filed,
and because appellant failed to exercise due diligence, his
assertions lack credibility. We decline respondent’s invitation to
discount appellant’s claims based on the passage of time since his
conviction.
Section 1473.7 does not define timeliness by comparing the
passage of time between the moving party’s plea and filing the
motion to vacate. (See, e.g., People v. Perez (2021) 67 Cal.App.5th
1008, 1015–1016; People v. Ruiz (2020) 49 Cal.App.5th 1061,
1063 (Ruiz).) Further, any issue regarding the timeliness of the
motion and appellant’s due diligence in filing it was forfeited by
the People’s failure to raise it below. The People did not oppose
the motion for lack of timeliness, nor did the issue come up at the
hearing on the motion. Although a trial court may, in its
14
discretion, determine a section 1473.7 motion is untimely if the
court has found the moving party failed to act with reasonable
diligence, the superior court here made no such finding or
determination about appellant’s diligence or the timeliness of the
motion. (Perez, at p. 1016.)
In any event, and contrary to respondent’s suggestion, the
23-year gap between appellant’s conviction and his motion to
vacate under section 1473.7 does not diminish the credibility of
appellant’s declaration in support of the motion. Although
appellant’s 1998 conviction subjected him to mandatory removal
and permanent exclusion from the United States, appellant did
not suffer those inevitable immigration consequences until 2016
when he was actually deported. At that point, the record shows
appellant promptly undertook to withdraw his plea and vacate
his conviction pursuant to section 1016.5 on the ground that he
had not known or understood the adverse immigration
consequences of his plea, and he would not have entered the plea
bargain had he known he would be deported as a result.
B. Appellant presented facts sufficient to demonstrate
he did not understand his plea and conviction would
subject him to mandatory removal, thereby establishing
error in entering the plea
The advisement that appellant may face certain adverse
immigration consequences was insufficient to inform appellant
that the conviction would subject him to mandatory deportation
and permanent exclusion from the United States. As our
Supreme Court has explained, there is a stark difference between
an actual and a theoretical risk of deportation:
“A defendant entering a guilty plea may be aware that
some criminal convictions may have immigration consequences
15
as a general matter, and yet be unaware that a conviction for a
specific charged offense will render the defendant subject to
mandatory removal. Thus, as we have previously noted in a
different context, the standard section 1016.5 advisement that a
criminal conviction ‘may’ have adverse immigration consequences
‘cannot be taken as placing [the defendant] on notice that, owing
to his particular circumstances, he faces an actual risk of
suffering such.’ [Citation.] And for many noncitizen defendants
deciding whether to plead guilty, the ‘actual risk’ that the
conviction will lead to deportation—as opposed to general
awareness that a criminal conviction ‘may’ have adverse
immigration consequences—will undoubtedly be a ‘material
matter[]’ that may factor heavily in the decision whether to plead
guilty. (Giron, supra, 11 Cal.3d at p. 797; cf. INS v. St. Cyr
(2001) 533 U.S. 289, 325 [150 L. Ed. 2d 347, 121 S. Ct. 2271] [for
noncitizens, ‘[t]here is a clear difference . . . between facing
possible deportation and facing certain deportation’]; U.S. v.
Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781, 790 [‘Warning of
the possibility of a dire consequence is no substitute for warning
of its virtual certainty. As Judge Robert L. Hinkle explained,
“Well, I know every time that I get on an airplane that it could
crash, but if you tell me it's going to crash, I’m not getting
on.” ’].)” (People v. Patterson (2017) 2 Cal.5th 885, 895–896;
Manzanilla, supra, 80 Cal.App.5th at pp. 905–906; Ruiz, supra,
49 Cal.App.5th at p. 1065.)
Indeed, “[w]here immigration law is ‘ “succinct, clear, and
explicit” that the conviction renders removal virtually certain,
counsel must advise his client that removal is a virtual certainty.’
[Citations.] Immigration law is clear that removal is ‘virtually
certain’ when ‘the immigration statute or controlling case law
16
expressly identifies the crime of conviction as a ground for
removal,’ ” as in the instant case. (Manzanilla, supra, 80
Cal.App.5th at p. 905.)
Here, appellant’s declaration explains a reasonable basis
for his erroneous belief that he would not be subject to adverse
immigration consequences: In the absence of any advice from
counsel, appellant incorrectly assumed that his status as a lawful
permanent resident of the United States shielded him from any
possible adverse immigration consequences mentioned by the
prosecutor at his plea hearing. At the time of his plea, appellant
was only 22 years old and had no previous encounters with the
criminal justice system during which he might have received
legal advice about the immigration consequences of a conviction.
Appellant’s lawyer never asked about his immigration status, nor
did he mention that a conviction for robbery constitutes an
aggravated felony under federal immigration law which would
subject appellant to mandatory deportation. The record also
reveals no effort by appellant’s attorney to negotiate a plea that
would not carry such dire immigration consequences.
The People have not raised any evidentiary objections to
the statements in appellant’s declaration, and the facts set forth
in support of the motion to vacate are uncontroverted. This
uncontroverted evidence was sufficient to establish appellant’s
error in entering the plea. As in Camacho, where the defendant’s
declaration and testimony established facts showing not just
counsel error, but also defendant’s ignorance and his own error in
believing that the terms of the negotiated plea would allow him
to avoid adverse immigration consequences, we conclude
appellant has demonstrated that errors damaged his “ability to
meaningfully understand, defend against, or knowingly accept
17
the actual or potential adverse immigration consequences of [his]
plea of . . . nolo contendere.” (§ 1473.7, subd. (a)(1); Camacho,
supra, 32 Cal.App.5th at p. 1009; see also Mejia, supra, 36
Cal.App.5th at p. 871 [“focus of the inquiry in a section 1473.7
motion is on the ‘defendant’s own error in . . . not knowing that
his plea would subject him to mandatory deportation and
permanent exclusion from the United States’ ”]; People v. Perez
(2018) 19 Cal.App.5th 818, 828 (Perez) [§ 1473.7 allows defendant
to challenge guilty plea based on mistake of law regarding
adverse immigration consequences of the plea].)
III. Appellant Established Prejudicial Error
A person seeking to withdraw a plea under section 1473.7
must not only show an error “damaging the moving party’s ability
to meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences” of the
plea (§ 1473.7, subd. (a)(1)), “[t]he error must also be
‘prejudicial’ ” (Vivar, supra, 11 Cal.5th at p. 528). Prejudicial
error may result from “the moving party’s own mistake of law or
inability to understand the potential adverse immigration
consequences of the plea.” (People v. Jung (2020) 59 Cal.App.5th
842, 856, overruled on other grounds in Vivar, supra, 11 Cal.5th
at p. 526, fn. 4; People v. Rodriguez, supra, 60 Cal.App.5th at
p. 1006; Perez, supra, 19 Cal.App.5th at p. 828.) At the heart of
the prejudicial error analysis “is the mindset of the defendant
and what he or she understood—or didn’t understand—at the
time the plea was taken.” (Mejia, supra, 36 Cal.App.5th at
p. 866; see Martinez, supra, 57 Cal.4th at p. 564 [“the test for
prejudice considers what the defendant would have done, not
what the effect of that decision would have been”].)
18
Our Supreme Court has declared that “showing prejudicial
error under section 1473.7, subdivision (a)(1) means
demonstrating a reasonable probability that the defendant would
have rejected the plea if the defendant had correctly understood
its actual or potential immigration consequences.” (Vivar, supra,
11 Cal.5th at p. 529; Manzanilla, supra, 80 Cal.App.5th at p. 904
[“To establish prejudice, a defendant must show by a
preponderance of the evidence that he would not have entered
the plea had he known about the immigration consequences”];
Mejia, supra, 36 Cal.App.5th at p. 862 [moving party must
establish by a preponderance of the evidence that “had he
understood the consequences, it is reasonably probable he would
have instead attempted to ‘defend against’ the charges”];
Rodriguez, supra, 60 Cal.App.5th at p. 1003.)
“ ‘A “reasonable probability” “does not mean more likely
than not, but merely a reasonable chance, more than an abstract
possibility.” ’ ” (People v. Soto (2022) 79 Cal.App.5th 602, 610
(Soto); People v. Rodriguez (2021) 68 Cal.App.5th 301, 324.)
“When courts assess whether a petitioner has shown that
reasonable probability, they consider the totality of the
circumstances. [Citation.] Factors particularly relevant to this
inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the
defendant’s priorities in seeking a plea bargain, and whether the
defendant had reason to believe an immigration-neutral
negotiated disposition was possible.” (Vivar, supra, 11 Cal.5th at
pp. 529–530.)
Other factors courts may consider in determining the
reasonable probability that the defendant would have rejected
the plea because of immigration consequences include: the
19
defendant’s remaining ties or lack thereof to his or her home
country (Manzanilla, supra, 80 Cal.App.5th at p. 912; Mejia,
supra, 36 Cal.App.5th at p. 872), the defendant’s immigration
status in the United States at the time of the plea (People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 80–81; People v. Espinoza
(2018) 27 Cal.App.5th 908, 917), the defendant’s criminal history
(Camacho, supra, 32 Cal.App.5th at p. 1011; Mejia, at p. 873;
People v. Bravo (2021) 69 Cal.App.5th 1063, 1073–1074, review
granted Dec. 15, 2021, S271782), and the defendant’s
employment history (Soto, supra, 79 Cal.App.5th at p. 611). And
while the probability of obtaining a more favorable result at trial
may be one factor a court considers in determining prejudice, it is
not controlling or necessarily even the most important factor
courts consider. (Martinez, supra, 57 Cal.4th at p. 559;
Ogunmowo, at p. 78.) Indeed, the United States Supreme Court
has declared that where avoiding deportation was the deciding
factor for a defendant, there is a reasonable probability that such
a defendant “would have rejected any plea leading to
deportation—even if it shaved off prison time—in favor of
throwing a ‘Hail Mary’ at trial.” (Lee, supra, 137 S.Ct. at
p. 1967.)
It is not enough, however, for a defendant simply to declare
that she would not have accepted any plea that would result in
deportation. As our Supreme Court has observed, “when a
defendant seeks to withdraw a plea based on inadequate
advisement of immigration consequences, [courts] have long
required the defendant corroborate such assertions with
‘ “objective evidence.” ’ ” (Vivar, supra, 11 Cal.5th at p. 530;
People v. Alatorre (2021) 70 Cal.App.5th 747, 770; Mejia, supra,
36 Cal.App.5th at p. 872 [“courts should not simply accept a
20
defendant’s statement of regret regarding the plea, courts should
also ‘look to contemporaneous evidence to substantiate a
defendant’s expressed preferences’ ”].)
Appellant has met that requirement here. 7
Appellant’s declaration in support of the motion to vacate
contains a detailed account of his strong ties to the United States,
which is corroborated by the letters from his family and his
former employer. When he was 13 years old, appellant was
brought to Los Angeles along with his four siblings by his mother
after the death of his father. He became a father figure and
assumed responsibility for his younger siblings as the close-knit
family established itself in its new home. Even as a teenager,
appellant helped to support his mother and continued to do so
until he was deported in 2016.
Appellant completed middle school and high school in Los
Angeles. During those years he became a lawful permanent
resident of the United States, and considered himself to be an
American. Everyone in his family is now a United States citizen.
When appellant accepted a pleaunaware of the dire
immigration consequences it carriedhe was young and
inexperienced, and had had no prior contact with the criminal
7 The California Supreme Court is currently considering
the standard for determining the sufficiency of corroborating
evidence necessary to sustain a defendant’s claim of prejudicial
error under section 1473.7, subdivision (a)(1). (People v.
Espinoza, review granted Sept. 15, 2021, S269647 [“Did the
Court of Appeal err in ruling that defendant failed to adequately
corroborate his claim that immigration consequences were a
paramount concern and thus that he could not demonstrate
prejudice within the meaning of Penal Code section 1473.7?”].)
21
justice system. Without the benefit of advice from his lawyer
about the mandatory immigration consequences of a conviction
for an aggravated felony under federal immigration law,
appellant mistakenly assumed that his lawful permanent
resident status would shield him from the possible immigration
consequences mentioned at the plea hearing. And when
appellant eventually learned of his error and was deported in
2016, he promptly sought relief under section 1016.5. 8
In contrast to his strong ties to the United States, appellant
has no ties to Mexico. He has suffered from the lack of family,
friends and employment since he was deported in 2016, and his
absence has caused considerable hardship for his family.
The evidence submitted in support of appellant’s 1473.7
motion was undisputed 9 and the trial court made no credibility
findings. Respondent nevertheless argues “there was nothing to
corroborate appellant’s self-serving declaration,” and “[n]othing
in the record shows that appellant at the time of his plea had any
concern or question about the immigration consequences or
sought the advice of an immigration attorney.” Indeed, according
to respondent, appellant’s silence during and after the section
1016.5 advisementthat a conviction may result in deportation
or other adverse immigration consequencessuggests “the
8 That the mandatory immigration consequences of
appellant’s conviction did not come to pass until 18 years after
his plea is irrelevant to whether appellant established prejudicial
error under section 1473.7.
9 In response to the motion, the People filed no written
opposition, made no objection to any of the evidence presented,
and argued only that the immigration advisement appellant
received negated appellant’s claim of prejudicial error.
22
immigration consequences of a conviction were not of a primary
or motivating concern” to appellant.
However, courts, including the California Supreme Court,
have held that an immigration advisement warning only that a
conviction may carry certain adverse immigration consequences
is wholly inadequate to inform the defendant that he or she will
be deported, permanently excluded, and denied naturalization as
a mandatory consequence of that conviction. (Vivar, supra, 11
Cal.5th at p. 521 [“To warn merely ‘ “that his plea might have
immigration consequences,” ’ in circumstances where the
consequences were ‘certain,’ was ‘constitutionally deficient’ ”];
People v. Patterson, supra, 2 Cal.5th at pp. 889, 895–896; People
v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 204
[“advising a defendant that a no contest plea may in the abstract
have immigration consequences, cannot be taken as placing him
on notice that, owing to his particular circumstances, he faces an
actual risk of suffering such”]; Manzanilla, supra, 80 Cal.App.5th
at p. 906; Soto, supra, 79 Cal.App.5th at p. 609; Ruiz, supra, 49
Cal.App.5th at p. 1065; Espinoza, supra, 27 Cal.App.5th at
p. 916.)
Appellant also presented a reasonable explanation for his
silence when told of possible immigration consequences: He
erroneously assumed his lawful permanent resident status would
shield him from any immigration penalties, and he believed his
attorney thought he was a citizen.
In this regard, respondent’s reliance on People v. Diaz
(2022) 76 Cal.App.5th 102, review granted June 15, 2022,
S274129 (Diaz) is misplaced. Diaz was convicted following a no
contest plea to one count of robbery in 1989. (Id. at pp. 104–105.)
In Diaz, the appellate court affirmed the denial of Diaz’s section
23
1473.7 motion, agreeing with the trial court’s assessment that
Diaz’s declarations were self-serving and not credible. (Id. at
p. 114.) Diaz, who unlike appellant, was quite familiar with the
criminal justice system (id. at p. 116), was “aggressive in his self-
advocacy at the plea hearing. He asked multiple questions, spoke
directly to the court several times, and attempted to bargain
directly with the court as well. Diaz persevered in his efforts to
obtain what he wanted, whether it was the significant benefit of a
lesser sentence or the return of $17.” (Id. at p. 115.) The court
declared it was “simply not believable that Diaz, who was
belligerent and persistent in his pursuit of something as
insignificant as the return of the $17 he had in his wallet when
he was arrested, would not have asked any questions or sought a
resolution that would preserve his immigration status if he
believed that it was possible to do so. The circumstances indicate
that this was very likely an unattainable goal, and that Diaz
knew it was.” (Id. at p. 116.) While noting “there was
contemporaneous objective evidence in [Diaz’s] favor,” the court
found it insufficient to meet his burden when weighed against the
“very strong evidence that Diaz made an informed decision to
accept the plea bargain that he was offered.” (Id. at p. 115.)
The appellate court also noted that at the time of his plea,
Diaz had temporary resident status which he knew would soon
expire. He had an upcoming appointment to obtain permanent
resident status that he would necessarily miss if he accepted the
plea and were incarcerated. Thus, even if Diaz believed his
temporary legal status would protect him from being deported, he
knew that legal status would expire, he would be unable to
reestablish it, and he would no longer be in the country legally.
In short, “[i]f [Diaz] believed his fate relied on his legal status, he
24
would have understood that if he made the plea he would not be
in the country legally after his temporary resident status expired
and that he would potentially be subject to adverse immigration
consequences.” (Diaz, supra, 76 Cal.App.5th at p. 114.)
Nevertheless, and despite his aggressive self-advocacy on other
matters, Diaz had no comment or questions when the district
attorney advised him of the potential immigration dangers
presented by the plea and conviction. (Id. at p. 116.)
Diaz was not deported after he served his sentence.
(Immigration officials advised him he would not be deported
because he had been in the United States since childhood.) (Diaz,
supra, 76 Cal.App.5th at p. 108.) Following his release, Diaz
committed other crimes, including felony driving under the
influence, another deportable offense. He was again advised that
he would not be deported. (Ibid.) Diaz was finally deported
because of the robbery conviction in 2013, but illegally reentered
the United States within six months. (Ibid.) When Diaz filed his
section 1473.7 motion in 2020, he was again facing imminent
deportation. (Ibid.)
The circumstances of appellant’s plea and overall
credibility could not be more different. In contrast to Diaz,
appellant had no prior criminal history and no familiarity with
the criminal justice system at the time of his plea. His
interactions with the court during the plea colloquy, which were
limited to responding to direct questions, were respectful and
succinct. When appellant entered his plea, he was a lawful
permanent resident and mistakenly believed that status would
protect him from the potential immigration consequences of a
conviction. But unlike Diaz, who knew his conviction would
cause him to lose his legal status, appellant had no reason to
25
question that assumption until many years after his plea when
he was deported. Finally, appellant’s clean record after his
conviction stands in stark contrast to Diaz, who committed other
crimes and another deportable offense before being deported for
the robbery conviction.
Respondent further challenges appellant’s showing of
prejudicial error on the ground that he failed to present the
declaration of an immigration expert or his defense counsel,
David Kwan, to corroborate his claims. Not only does it appear
that Mr. Kwan died long before appellant had any reason to
inquire about his recollections of appellant’s plea, 10 but a moving
party is not required to provide the declaration of plea counsel in
support of a section 1473.7 motion. (Manzanilla, supra, 80
Cal.App.5th at p. 909 [“requiring an admission from defense
counsel or expert testimony . . . would impose a condition on
obtaining relief under section 1473.7 that is not contained in the
statute. The court can certainly consider what evidence is or is
10 Pursuant to appellant’s request, we take judicial notice
of the entry on the California State Bar Web site
( [as of Sept. 13, 2022], archived at
), which shows that the only
attorney named David Kwan in California was admitted to the
State Bar in 1952 and is now deceased. (Evid. Code, § 452, subd.
(h); People v. Vigil (2008) 169 Cal.App.4th 8, 12, fn. 2.) We also
take judicial notice of the obituary posted on the Los Angeles
Times Web site, which states that David Waihan Kwan was
admitted to the State Bar of California in 1952 and died on
January 25, 2011 ( [as of Sept. 13,
2022], archived at ).
26
not in the record, but there is no litmus test requiring that the
original defense counsel agrees they failed to adequately
negotiate on behalf of their client”].)
Respondent also contends that appellant has failed to
demonstrate “there was an alternative immigration-safe
disposition that was necessarily available to him that would have
been offered by the People and accepted by the court.” In the
next sentence, respondent dismisses the proposed alternative
dispositions identified by appellant as “fanciful speculation.” In
any event, the Attorney General places far more weight on
whether an immigration-neutral disposition would have been
offered by the prosecutor and accepted by the trial court than this
factor deserves in the court’s consideration of the “totality of
circumstances.” (Vivar, supra, 11 Cal.5th at p. 529.)
As our Supreme Court has explained, a defendant’s
decision to reject a plea bargain “ ‘might be based either on the
desire to go to trial or on the hope or expectation of negotiating a
different bargain without immigration consequences.’ [Citation.]
When a court weighs whether a defendant would have taken the
latter path, it need not decide whether the prosecution would
actually ‘have offered a different bargain’—rather, the court
should consider ‘evidence that would have caused the defendant
to expect or hope a different bargain would or could have been
negotiated.’ ” (Vivar, supra, 11 Cal.5th at p. 529, quoting
Martinez, supra, 57 Cal.4th at p. 567.)
Here, we conclude that appellant’s personal history, deep
ties to the United States, and at the time of his plea, his youth
and lack of experience with the criminal justice and immigration
systems sufficiently corroborate appellant’s claim that his ability
to remain in the United States with his family was a paramount
27
concern. In the absence of any legal advice about the dire
immigration consequences that would follow from his plea and
conviction, appellant accepted a plea to an aggravated felony in
the mistaken belief that the warning about possible adverse
immigration consequences did not apply to him because of his
lawful permanent resident status.
Applying our independent judgment, and viewing the
totality of the circumstances, we conclude it is reasonably
probable appellant would have rejected the plea had he correctly
understood its actual immigration consequences. Appellant has
carried his burden of establishing prejudicial error and is entitled
to relief.
28
DISPOSITION
The order denying appellant’s motion to withdraw his plea
and vacate his conviction under Penal Code section 1473.7 is
reversed. The matter is remanded to the superior court with
directions to grant the motion and vacate the conviction.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
29