People v. Edouarzin CA2/8 ( 2023 )

Filed 6/15/23 P. v. Edouarzin CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312551
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA315445-01
v.
LOURDYVES EDOUARZIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Reversed and
remanded with instructions.
Law Offices of Elliott N. Tiomkin and Elliott N. Tiomkin for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven D. Matthews, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
A trial court may vacate the criminal conviction of a
noncitizen if a preponderance of the evidence establishes that the
conviction 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.” (Pen.
Code § 1473.7, subd. (a)(1); id., subd. (e)(1).1 To establish
prejudicial error, a defendant must demonstrate a “reasonable
probability that the defendant would have rejected the plea if the
defendant had correctly understood its actual or potential
immigration consequences.” (People v. Vivar (2021) 11 Cal.5th
510, 529 (Vivar); People v. Espinoza (2023) 14 Cal.5th 311, 316
(Espinoza).)
In 2021, appellant Lourdyves Edouarzin, a Haitian
national, filed a motion to vacate his 2010 convictions for
computer intrusion access and false impersonation (colloquially,
identity theft), enhanced by a loss of over $150,000. He
contended defense counsel gave him no advice as to the adverse
immigration consequences of his no-contest pleas and admission,
and also failed to investigate and negotiate an immigration-
neutral plea agreement. He asserted he never would have taken
the plea bargain had he known the charges compelled his
deportation. After an evidentiary hearing, the trial court denied
the motion because Edouarzin submitted no evidence
contemporaneous in time with the plea which supported his
assertions. Edouarzin now appeals.
We reverse.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. The Convictions
Appellant was born in Haiti and immigrated to the United
States 25 years ago when he was 18 years old. He and his United
States citizen wife have a son. He lost 20 members of his family
in the Haitian earthquake and has been supporting many of his
remaining family members, including his mother.
On April 10, 2009, the People filed an amended Information
in the Los Angeles Superior Court charging appellant with
multiple counts of grand theft of personal property (§ 487,
subd. (a)); theft (§ 484e, subd. (d)); and identify theft (§ 530.5,
subd. (a)). On January 22, 2010, appellant pled no contest to
three counts of computer intrusion access (§ 502, subd. (c)(1)) and
two counts of false impersonation (§ 529), which were added to
the Information. He also admitted that the loss was over
$150,000 pursuant to section 12022.6, subdivision (a)(2). The
People alleged appellant was part of a sophisticated and highly
organized group of people who accessed private information
through data aggregators like Choice Point Corporation, Merlin,
and Locate Plus, and then opened credit card or bank accounts
using the victims’ information to steal money, goods, and
services.
At the plea hearing on January 22, 2010, appellant was
represented by attorney Michael Berry. Before the plea colloquy,
counsel advised appellant (who had been in pre-trial detention for
three years) that if he pled guilty, he would avoid serving
significant prison time and would be released soon. Mr. Berry
did not tell appellant that his plea would result in removal, let
alone mandatory removal, from the United States. Counsel did
3
not discuss the immigration consequences of the plea with
appellant and never asked him about his immigration status.
In advance of the plea hearing, appellant signed a written
plea agreement which addressed all the rights he was waiving by
virtue of the plea, but did not mention the immigration
consequences of the plea. At no time was appellant asked to
execute any forms.2
When taking the plea, the prosecutor advised appellant of
the effect of a no contest plea, including: “[I]f you are not a U.S.
citizen, this plea will result in deportation, exclusion from
admission or denial of the right of naturalization.” Appellant was
confused when the prosecutor told him he would be deported
because of the plea. Appellant turned to Mr. Berry to confer
privately and asked him sotto voce what the advisement meant.
The proceedings paused. Mr. Berry did not then ask appellant
about his immigration status or advise him about the impact of
the conviction on his immigration status. Instead, Mr. Berry told
appellant to answer yes to the court’s questions. After their
conversation, appellant did as he was told.
On February 10, 2010, the trial court sentenced appellant
to seven years eight months in state prison with credit for time
served in accordance with the plea agreement. Appellant served
his sentence and has since sustained no other convictions.
2 As part of a guilty or no contest plea, defendants and their
counsel typically sign a waiver of rights form and submit it to the
court. The form includes an advisement about potential
immigration consequences arising from a plea of guilty or no
contest. (In re Tahl (1969) 1 Cal.3d 122 (Tahl), overruled on
other grounds by Mills v. Municipal Court (1973) 10 Cal.3d
288, 291.)
4
On March 25, 2011, deportation proceedings were
commenced against appellant based on these convictions.
II. 2021 Motion to Vacate
In 2014, appellant moved to vacate his convictions on the
ground that his counsel never advised him of the immigration
consequences of his pleas. The trial court denied the motion
without an evidentiary hearing.
On February 4, 2021, appellant filed the instant motion to
vacate his convictions pursuant to section 1473.7. Again he
argued he did not understand the immigration consequences of
his pleas because counsel had not advised him on the subject,
except to tell him it was ok to say yes to the prosecutor’s
questions. Appellant related the facts set out above and argued
he would have rejected the plea had he known it would prevent
him from being able to fight deportation as he had been in the
United States since 1989, had permanent residency status, and
had a United States citizen wife and child.
In support of his motion, appellant submitted his sworn
declaration and a declaration from his current counsel who
confirmed there was no Tahl waiver in the court file and
appellant had committed no new offenses since his release from
prison.
Mr. Berry also provided a sworn declaration. Mr. Berry
stated that he did not recall any specific discussion with his client
concerning immigration issues. He knew his client was not a
citizen and he did not have an immigration hold; “beyond that,
we did not explore his immigration status, family ties, or future
prospects for adjustment or relief under immigration law.” “The
sole focus of the plea bargaining discussion [with the prosecutor]
was the amount of jail time. I do not recall any discussion or
5
negotiation with the prosecutor of any alternative charges to
which the defendant could plead.”
Also attached to the motion were charging documents from
the United States Department of Homeland Security
underpinning appellant’s deportation proceeding based on these
convictions, and State Bar documents showing Mr. Berry’s
disbarment shortly after he represented appellant.
Finally, the People put forth a copy of the written plea
agreement which appellant and his counsel signed before the
court took the no contest plea. Although the written plea
agreement includes several advisements and waivers of rights, it
does not address in any way immigration consequences that
could or would result from the plea.
III. The Trial Court’s Ruling
On April 30, 2021, the trial court held a hearing on
appellant’s motion to vacate. The court remarked that it had
“read the entire court file, including the transcript of the plea and
the transcript of the sentencing, not what you just put it, but the
entire transcript.”
Appellant was the sole witness at the hearing. He testified
he was 51 years old, which would have made him 40 years old
when he entered the no contest plea. He had been represented by
Michael Berry for two years and was in pretrial detention for
three years. Mr. Berry never once visited him while he was in
custody. Most of the time he did not visit him in the courtroom
lockup. He would just walk into the courtroom. Right after the
earthquake in Haiti and about a week before the plea was taken,
Mr. Berry told appellant he was going to try to get a plea offer.
At the plea the prosecutor gave the advisements and asked
the questions. When the prosecutor gave the advisement about
6
immigration consequences, appellant asked to speak to his
attorney because he had never said “anything about immigration
status or any problem that I would have.” Mr. Berry knew
appellant was from Haiti because Mr. Berry had discussed the
earthquake with appellant’s sister. Mr. Berry never asked
appellant any questions about his immigration status. After the
prosecutor’s advisement in court, appellant asked Mr. Berry what
the prosecutor was talking about. Mr. Berry said, “Don’t worry
about it” and to answer “Yes” to the question. Mr. Berry said,
“Everything is fine. Don’t worry about it.” Because appellant
had spent so much time in pretrial detention, the focus of the
plea bargaining was on the length of the sentence to be imposed
by the court.
It was only “later on down the road I found out everything
that [Mr. Berry] told me it was not correct, it was untrue.”
Appellant was put into deportation proceedings. At the time of
the plea, he was an immigrant applying for citizenship. He was
married to a United States citizen with whom he had a United
States citizen child. He has lived in the United States for
34 years. When he heard the prosecutor’s advisement, he did not
understand the meaning of the word “exclusion from admission,
denial of right of naturalization or deportation.” English is his
fourth language, after Creole, Spanish, and French. At the time
he was unfamiliar with deportation proceedings and the
immigration system and had had no significant involvement in
the criminal justice system prior to his plea.
Appellant testified had he known of the mandatory
immigration consequences, he would have gone to trial. His only
family members are his sister and mother who both live in the
7
United States. Appellant testified he would have been willing to
risk more jail time to avoid the consequences of deportation.
Appellant testified that his attorney advised him to answer
“yes” about whether he understood his trial rights. The
prosecutor pointed out that he asked to speak with counsel only
upon hearing about his probation and parole rights, not the
immigration consequences. Appellant stated he did not recall it
that way. He started speaking to his attorney about the
immigration advisement while the court proceeded on to the next
topic of probation and parole before it paused the proceedings.
Appellant stated he was not concerned about probation and
parole at that time because he had so much credit for time served
he believed he would have no parole. He stopped the proceedings
to ask his attorney about the immigration consequences, not
about parole.
The court then asked appellant about the plea negotiations
in the case. The court asked appellant what sentence he agreed
to. Appellant answered, “They gave me seven years I believe.”
The court asked appellant what the People’s first offer was.
Appellant stated that at the preliminary hearing he was offered a
seven-year sentence. His attorney at the time told him that if he
did not accept the offer before the preliminary hearing, “they will
give me 10 years.” Appellant rejected both offers and never made
a counteroffer to the prosecutor. By the time of the plea, he had
already served three years in pretrial detention.
The trial court denied the motion to vacate, stating: “Judge
Pounders questions the credibility of Mr. Berry at the sentencing.
Mr. Berry’s statements that Judge Pounders stated, among other
things, is the stupidest thing he ever heard, questioned the
credibility of Berry. I ‘m not so sure that this declaration suffices,
8
especially on what Judge Pounders said. And Mr. Berry’s
statement that he doesn’t recall as opposed he didn’t say. [¶]
Defendant’s statement here in court, I find incredible. His
memory was very clear as to certain things, as to other things it
happened, 11 years ago, he doesn’t recall. Specifically when I
asked him about the case settlement in this case, he didn’t get
the case number right. It was seven years, eight months. First he
said three years, then he said seven years. He remembered
exactly the events as he understood it at the preliminary hearing
of the 10 year offer. [¶] The fact is that he faced a maximum
exposure of 24 years, eight months. He accepted seven years,
eight months. He was given credits at the sentencing that equals
6.142 years, leaving very little time in a sentence that was
concurrent with a federal pending charge. [¶] , , , [¶] In this case,
it is clear from the record of conviction that the defendant was
interested solely in one thing and one thing only. That is serving
as little time as possible for this crime and making sure that it
wouldn’t be in addition to any federal sentence. [¶] I find that the
defense has not met their burden. It is clear to me that
regardless of any advice of consequences, advice of immigration
aspects or anything else that defendant would still have plead
solely to get a lesser sentence. [¶] The motion is denied.”
Appellant filed a timely notice of appeal.
DISCUSSION
I. Applicable Law
Mandatory deportation from the United States is an
immigration consequence where a defendant is convicted of a
crime deemed an aggravated felony under federal immigration
law. (Moncrieffe v. Holder (2013) 569 U.S. 184, 187–188; 8 U.S.C.
9
§ 1228(c) [aggravated felony is conclusively presumed
deportable].) With respect to appellant’s case, an offense
involving fraud with a loss in excess of $10,000 in violation of
section 12022, subdivision (a)(2) constitutes an aggravated felony.
(8 U.S.C. § 1101(a)(43)(M)(i).)
Section 1473.7 authorizes a person to file a motion to
vacate a conviction or sentence for any of the following reasons:
“The conviction or sentence is legally invalid due to prejudicial
error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a conviction or
sentence.” (§ 1473.7, subd. (a)(1).)
Effective January 1, 2019, legislative amendments to
section 1473.7 afforded a defendant relief under the statute
without a showing of ineffective assistance of counsel per the
Strickland3 standard. (People v. Camacho (2019) 32 Cal.App.5th
998, 1005; Stats. 2020, ch. 317, §5.) To establish prejudice, a
defendant must 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.
(Camacho, at pp. 1010–1011; see People v. Mejia (2019)
36 Cal.App.5th 859, 862 (Mejia); see People v. Martinez (2013)
57 Cal.4th 555, 565 [defendant may show prejudice by convincing
the court that he “would have chosen to lose the benefits of the
plea bargain despite the possibility or probability deportation
would nonetheless follow”].) A fact is proved by a preponderance
of the evidence if it is more likely than not that the fact is true.
(People v. Rodriguez (2021) 60 Cal.App.5th 995, 1003.)
3 Strickland v. Washington (1984) 466 U.S. 668.
10
The key to section 1473.7 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.) 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. When courts assess whether a petitioner has
shown that reasonable probability, they consider the totality of
the circumstances.” (Vivar, supra, 11 Cal.5th at p. 529.) Factors
relevant to this inquiry include appellant’s ties to the United
States, the importance appellant placed on avoiding deportation,
appellant’s priorities in seeking a plea bargain, and whether
appellant had reason to believe an immigration-neutral
negotiated disposition was possible. (Id. at pp. 529–530;
Espinoza, supra, 14 Cal.5th at p. 320.) Also relevant are the
defendant’s probability of obtaining a more favorable outcome if
he had rejected the plea, as well as the difference between the
bargained-for term and the likely term if he were convicted at
trial. These factors are not exhaustive and no single type of
evidence is a prerequisite to relief. (Espinoza, at pp. 320–321.)
A defendant must provide objective evidence to corroborate
factual assertions. Objective evidence includes facts provided by
declarations, contemporaneous documentation of the defendant’s
immigration concerns or interactions with counsel, and evidence
of the charges the defendant faced. (Vivar, supra, 11 Cal.5th at
pp. 530–531.)
Ties to the United States are an important factor in
evaluating prejudicial error under section 1473.7 because they
shed light on a defendant’s immigration priorities. (Vivar, supra,
11
11 Cal.5th at p. 530.) When long-standing noncitizen residents of
this county are accused of committing a crime, “the most
devasting consequence may not be a prison sentence, but their
removal and exclusion from the United States.” (Id. at p. 516;
People v. Lopez (2022) 83 Cal.App.5th 698, 703 (Lopez); Mejia,
supra, 36 Cal.App.5th at p. 872 [compelling evidence of prejudice
where the defendant lived in the United States since he was
14 years old, and his wife and child lived here, as well as his
mother and siblings].)
II. Standard of Review
In Vivar, the California Supreme Court determined the
standard of review for section 1473.7 proceedings and endorsed
the independent standard of review. (Vivar, supra, 11 Cal.5th at
p. 524.) Under independent review, an appellate court exercises
its independent judgment to determine whether the facts satisfy
the rule of law. (Id. at p. 527.) Independent review is not the
equivalent of de novo review. (Ibid.) An appellate court may not
simply second-guess factual findings that are based on the trial
court’s own observations. (Ibid.) Factual determinations by the
trial court are given particular deference, even though courts
reviewing such claims generally may reach a different conclusion
from the trial court on an independent examination of the
evidence even where the evidence is conflicting. (Ibid.) Where
the facts derive entirely from written declarations and other
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, the 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. (Vivar, at p. 528.) It
is for the appellate court to ultimately decide, based on its
12
independent judgment, whether the facts establish prejudice
under section 1473.7. (Vivar, at p. 528.)
III. Analysis
A. Credibility Findings
We note here that it appears the trial court made two
credibility determinations. First, the trial court commented that
another judge, Judge Pounders, had commented that defense
counsel’s remarks at appellant’s sentencing hearing were “stupid”
and that remark cast doubt on the credibility of defense counsel’s
declaration in support of the motion. On the contrary. If, indeed,
defense counsel made “stupid” remarks at the sentencing
hearing, that surely support counsel’s declaration that he could
not recall giving his non-citizen client immigration advice, surely
an uninformed (and possibly “stupid”) course of action.
More importantly, we are not bound by the trial court’s
credibility determination because there was no live testimony
from Mr. Berry at the hearing. Before the hearing, current
defense counsel advised the court he was unable to subpoena Mr.
Berry. He asked for a continuance so he could locate Mr. Berry
and subpoena him to testify before the court. Both the prosecutor
and the court agreed to submit on the declaration alone rather
than continue the hearing for live testimony from Mr. Berry.
Under Vivar, we are not bound by the trial court’s credibility
determination where the court did not hear live testimony.
(Vivar, supra, 11 Cal.5th at pp. 527–528.) We may review the
testimony de novo. (Ibid.) And, in doing so, we find Mr. Berry’s
testimony undisputed and consistent with appellant’s recollection
of events before and at the plea colloquy. Given Mr. Berry’s 2013
disbarment, a fact of which we take judicial notice, we find he
had no incentive to testify one way or another.
13
The second credibility determination was the trial court’s
statement that appellant was not credible when he said he was
worried about immigration consequences because it was clear to
the court that the only thing appellant was worried about, at the
time of the plea, was the length of the sentence. We put no stock
in this finding as it begs the question. Appellant testified he was
unaware of immigration consequences, so those consequences
were not an issue for him. Appellant’s counsel declared he did no
research into immigration consequences and did not inquire
about appellant’s immigration status, so appellant was not tipped
off by counsel that immigration consequences would be a problem
he would need to address. Given counsel’s admitted inability to
recall raising the immigration issue with appellant (although he
did admit he had no discussions with appellant about his
immigration status), the only consequential issue left on
appellant’s radar was the length of the sentence. That is, until
the prosecutor brought up the subject of immigration
consequences at the change of plea hearing. This prompted
appellant to immediately inquire of counsel. That was when
counsel told him it wasn’t an issue and not to worry about it –
just say “yes” to the court’s questions. In the absence of a pre-
existing alert about immigration consequences, and given
appellant’s already lengthy pretrial detention of three years,
appellant’s presumed focus on the length of the sentence during
plea negotiations makes perfect sense. (Vivar, supra, 11 Cal.5th
at p. 532 [when ignorant of immigration consequences, rejection
of an immigration-neutral plea bargain cannot be seen as
evidence that immigration consequences were not defendant’s
priority],)
14
The court also thought appellant was not credible because
he did not correctly answer the court’s question about the length
of his sentence. The court appeared to believe appellant was
selectively remembering only those events that were favorable to
him. The transcript does not support the rationale for the court’s
credibility finding. Appellant stated he had been in pretrial
detention for three years, not that the first offer was for three
years. He stated the first offer was for seven years and his
attorney said it would rise to 10 years after the preliminary
hearing. This is uncontradicted by the record. That he told the
court he ultimately thought his sentence was seven years, rather
than seven years eight months, is too inconsequential to stand as
a basis to find his testimony incredible. It is clear from reading
the transcript that at some points the court and appellant were
talking past each other and, at other points, the court had to
rephrase its questions to focus appellant on what information it
wanted to get from him.
“The Court: I got a couple of questions. One maybe, two.
Not many, sir. What was the case settlement? In other words,
what is the sentence that you agreed to?
“The Defendant: Since I was incarcerated for three years.
“The Court: For three years?
“The Defendant: Yes.
“The Court: All right. And that was the sentence that you
agreed to?
“The Defendant: No. They gave me seven years I believe.
“The Court: Is that what it was, seven years?
“A. Yes.
“The Court: And was that the first offer that was presented
to you?
15
“A. It was the first offer given to me in prelim and I didn’t
take it. So it was going to go up to 10 [years], so I decided
to go for the 10 [years].
“The Court: So you went to 10 [years]?
“A. I went for 10 [years] on the prelim and basically on
prelim we end up trying to do a 995 motion.
“The Court: Yeah.
“A. And that’s the reason why I hire Mr. Berry.
“The Court: Yeah.
“A. To finish up with my 995 motion and not the attorney
that I had before.
“The Court: Yeah.
“A. So Mr. Berry came into the case and he just sit on it.
“The Court: All right, listen to my question. What was the
offer that was given to you? You said it was seven years?
“A. Correct.
“The Court: Now how did you get the 10 years?
“A. No, my previous attorney that I had was telling me if I
don’t take the plea today, they will give me 10 years.
“The Court: All right. And you did take the plea?
“A. I didn’t take the plea.
“The Court: So that was a plea that you rejected?
“A. Correct.
“The Court: Did you make an offer yourself?
“A. No.
“The Court: Ever?
“A. No.
“The Court: All right. I have no further questions.”
16
We fail to see the basis for the court’s unfavorable findings
on credibility based on appellant’s answers as reported in this
transcript.
B. Lack of Advice
We find the evidence compelling that appellant was not
advised about and was unaware of the immigration consequences
of his pleas. Counsel declared he could not recall specific
discussions with appellant on the issue. That Mr. Berry said he
could not recall specific discussions is consistent with appellant’s
surprise when the prosecutor recited the standard section 1016.5
admonition about immigration consequences. Had appellant and
his counsel discussed such consequences, there would have been
no reason to pause the proceedings while appellant asked counsel
about the meaning of the admonitions. Apart from the dearth of
oral advice, the written plea agreement which appellant signed
set out all the rights appellant was waiving by his plea, but did
not address immigration consequences. The absence of a Tahl
waiver, which itself includes an advisement about potential
immigration consequences, is further evidence from which it can
be inferred that counsel did not, either in writing or orally,
execute his duty as counsel to advise appellant of the adverse
immigration consequences arising from the plea.
The importance of counsel’s responsibility to give a client a
complete advisement of all material adverse immigration
consequences cannot be overstated – and it is not excused by
official admonitions given during the plea colloquy. As our
Supreme Court has stated: “That defendants have a right to
counsel when they undertake the plea evaluation and negotiation
specifically provided for in section 1016.5, subdivisions (b) and (d)
is not disputed. . . . ‘[I]t is the attorney, not the client, who is
17
particularly qualified to make an informed evaluation of a
proffered plea bargain.’ [Citation.] Thus, whether or not the
court faithfully delivers section 1016.5’s mandated advisements,
‘[t]he defendant can be expected to rely on counsel’s independent
evaluation of the charges, applicable law, and evidence, and of
the risks and probable outcome of trial.’ ” (In re Resendiz (2001)
25 Cal.4th 230, 240, abrogated on another ground in Padilla v.
Kentucky (2010) 559 U.S. 356, 370-371.) Thus, a section 1016.5
warning, like the one given here, does not cure bad or nonexistent
advice from defense counsel about immigration consequences.
Here the record establishes that Mr. Berry, knowing his
client was a Haitian national, gave him no advice whatsoever
about the immigration consequences of his pleas.
C. Prejudice
Appellant must show prejudice in addition to error.
“[S]howing prejudicial error under section 1473.7,
subdivision (a)(1) means demonstrating a reasonable probability
that the defendant would have rejected the plea if the defendant
had correctly understood its actual or potential immigration
consequences.” (Vivar, supra, 11 Cal.5th at p. 529.) “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.)
Mr. Berry’s failure to advise appellant damaged his client’s
“ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences” of the pleas. (§ 1473.7, subds. (a)(1) & (e)(1).) It is
one thing to accept the adverse consequences when you are
advised correctly that you have no other options, which could
have been the case if Mr. Berry had done his job. Because of
18
counsel’s failures, appellant was ignorant of his options and lost
the opportunity to make a meaningful and knowing decision
about the immigration consequences of the plea.
Appellant’s ties to the United States were lifelong. He
arrived here with permanent residency status when he was
18 years old. By the time of the plea, he had been in this country
for 22 years, unlike the defendant in People v. Bravo (2021)
69 Cal.App.5th 1063, 1076, a case relied upon by the trial court,
who had been here four and a half years. Another difference
between appellant and Bravo is appellant’s relationship with his
United States-based family. Bravo was convicted of domestic
violence and child cruelty against the very family members he
cited as his incentive to remain in the United States. (Id. at
pp. 1067–1068.) Appellant’s only two blood relatives besides his
wife and child were his mother, whom he was financially
supporting, and sister, both of whom lived in the United States.
Appellant’s long residence in this country, coupled with his
resident nuclear and extended family members militate in favor
of a finding of prejudicial error. His lengthy and legal United
States residence is objective evidence itself of appellant’s ties to
the United States, an important factor in evaluating prejudicial
error because they shed light on a defendant’s immigration
priorities. (Espinoza, supra, 14 Cal.5th at p. 321.) As our high
court has stated, appellant’s longstanding ties “weigh in favor of
finding that he would have considered immigration consequences
to be of paramount concern in deciding whether to accept a plea
agreement.” (Id. at p 322.)
Another consideration is whether alternative, immigration-
safe dispositions were available at the time of the plea. Factors
relevant to this inquiry include defendant’s criminal record, the
19
strength of the prosecution’s case, the seriousness of the charges
or whether the crimes involved sophistication, the district
attorney’s charging policies with respect to immigration
consequences and the existence of comparable offense without
immigration consequences. (Espinoza, supra, 14 Cal.5th at
p. 323; Mejia, supra, 36 Cal.App.5th at p. 873.)
Where, as here, a defendant has no extensive criminal
record, it may be persuasively contended that the prosecutor
might have been willing to offer an alternative plea without
immigration consequences. (Espinoza, supra, 14 Cal.5th at
p. 324.) Also relevant is the prosecutor’s willingness to deviate so
far from a 24-year maximum sentence to a seven-year eight
month sentence. This may represent the prosecutor’s assessment
of problems of proof after three years of pretrial proceedings, a
willingness to give appellant a break given his criminal history,
or a focus more on the amount of restitution than on the amount
of prison time. In any event, that the prosecutor was willing to
deviate significantly from the maximum sentence indicates there
was room to negotiate an immigration-neutral disposition that
comported with the prosecutor’s priorities. (Id. at p. 323.)
Interestingly, restitution appears to have been a priority of
the prosecutor as it was a requirement of the plea agreement that
appellant agree to pay back the losses arising from all counts, not
just the losses connected to the counts to which he pled no
contest. This focus on restitution is what rendered these offenses
a basis for mandatory deportation because the agreement was to
admit to an amount of loss over $10,000. Had appellant not
admitted this loss over $10,000, deportation would not have been
mandatory. (Nijhawan v. Holder (2009) 557 U.S. 29, 42
[129 S.Ct. 2294, 2303] [loss amount must be tethered to the
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offense of conviction; amount cannot be based on acquitted or
dismissed counts or general conduct].) In this regard, the plea
agreement called for a waiver under People v. Harvey (1979)
25 Cal.3d 754 (Harvey). Such a waiver allows the court to impose
restitution for dismissed offenses to which the defendant has not
been convicted. (Id. at p. 758.) Thus, there was no need for
appellant to have formally admitted the loss amount over
$10,000. The amount could have been ordered to be repaid
without his formal admission. The formal admission of the
enhancement was unnecessary and served only to make the
offenses a basis for mandatory deportation. Had defense counsel
realized the significance of the loss amount as a basis for
mandatory deportation, he could have tried to negotiate the
admission of the enhancement out of the agreement and the
prosecutor would still have been able to argue for the same
restitution amounts by proceeding on the Harvey waiver alone.
Finally, in denying the motion the trial court noted and
relied on the absence of evidence contemporaneous in time with
the plea to substantiate appellant’s position that he would have
rejected the plea bargain had he known of the immigration
consequences. (Vivar, supra, 11 Cal.5th at p. 530; Mejia, supra,
36 Cal.App.5th at p. 872.)
This focus on the absence of contemporaneous
corroborating evidence as a basis to deny a motion to vacate a
plea has been rejected by our Supreme Court since the trial court
made its ruling. In Espinoza, the court reiterated that the
inquiry under section 1473.7 requires consideration of the totality
of the circumstances which necessarily involves case-by-case
examination of the record and “no specific kind of evidence is a
prerequisite to relief.” (Espinoza, supra, 14 Cal.5th at p. 325.)
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The totality of the circumstances support our conclusion
that appellant had shown a reasonable probability that had he
understood the consequences of the plea, he would have rejected
the plea and either gone to trial or sought a different,
immigration-neutral disposition. He has been in the United
States since 1989 when he arrived at age 18. He arrived with
permanent residency status and intended to apply for United
States citizenship. He has no remaining familial ties to Haiti as
his sister and mother were now in the United States. He has a
United States citizen wife and child. He presented a reasonable
explanation for his assent when the prosecutor recited the
immigration consequences of the plea in that he paused the
proceedings to ask his counsel what the advisement was all about
and his counsel told him not to worry and “just say yes.” He had
little familiarity with the criminal justice system, sustaining no
other convictions after his no contest plea in this case.
Significantly, he immediately filed a motion to vacate his
convictions in 2014 when he was placed in deportation
proceedings, another event from which we infer the deportation
proceedings came as a surprise to him.
We conclude appellant’s long and deep ties to the United
States, his stated lack of experience with the immigration system
here, and the undisputed contemporaneous concern he expressed
to counsel about the immigration consequences of the plea
sufficiently corroborate appellant’s claim that his ability to
remain in the United States would have been expressed as a
paramount concern had he been advised of the issue. (See Lopez,
supra, 83 Cal.App.5th at pp. 703–704 [“ ‘the prospect of
deportation “is an integral part,” and often even “the most
important part,” of a noncitizen defendant’s calculus in
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responding to certain criminal charges’ ”].) We conclude it is
reasonably probable appellant would have rejected the plea
agreement had he correctly understood the unfavorable
mandatory deportation consequences of the plea.
Exercising independent review, we conclude appellant has
carried his burden for section 1473.7 relief.
DISPOSITION
The order denying appellant’s motion to vacate his
convictions is reversed. The matter is remanded to the superior
court with directions to grant the motion and allow appellant to
withdraw his pleas pursuant to section 1473.7, subdivision (e).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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