People v. Hermosillo CA4/1 ( 2023 )

Filed 10/17/23 P. v. Hermosillo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081714
Plaintiff and Respondent,
v. (Super. Ct. No. SCD164101)
MANUEL EFRIN HERMOSILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
Laura Arnold, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Adrian R. Contreras and Steve Oetting, Deputy Attorneys General, for
Plaintiff and Respondent.
In 2002, Manuel Efrin Hermosillo pled guilty to residential burglary,
assault with a firearm, and misdemeanor use of a controlled substance.
Hermosillo now appeals from a January 2023 order denying his motion to
vacate his criminal convictions pursuant to Penal Code1 section 1473.7,
subdivision (a)(2). He contends that he demonstrated both error and
prejudice within the meaning of section 1473.7 because (1) he did not
meaningfully understand the immigration consequences of his pleas, and
(2) he would not have accepted the pleas had he properly understood those
consequences.
Based on our independent review of the documentary evidence and
records, we conclude that Hermosillo has failed to meet his burden of
demonstrating that he did not meaningfully understand the immigration
consequences of his guilty pleas. Accordingly, we affirm the order without
deciding the merits of his argument regarding prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hermosillo’s Ties to the United States
Hermosillo’s family moved from Mexico to the United States when he
was two years old. His father became a lawful resident. In 1995, the
Immigration and Naturalization Service approved his father’s Immigrant
Petition for a Relative as the first step in obtaining lawful permanent
resident status for Hermosillo. Hermosillo was not eligible to file an
adjustment of status application at that time.
Hermosillo grew up in San Diego with his parents and siblings. He
attended elementary, middle, and high school in San Diego, although he did
not graduate from high school. When Hermosillo was 18 years old, police
arrested him in connection with a residential break-in and shooting that took
place when he was 17. After being found unfit for juvenile court, he was
transferred to adult court.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
B. Charges and Convictions
In December 2001, the District Attorney filed an information charging
Hermosillo with felony residential burglary (Pen. Code, § 459), two counts of
felony assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of
misdemeanor use and being under the influence of a controlled substance
(Health & Saf. Code, § 11550, subd. (a)). The information also alleged that
Hermosillo personally used a firearm in the commission of the alleged
felonies. (Pen. Code, § 12022.5, subd. (a)(1).) Hermosillo faced up to 16 years
in state prison if convicted for the first count alone. Hermosillo proceeded to
trial by jury in March 2002.
During his trial, Hermosillo agreed to plead guilty to count 4 of the
information: misdemeanor use and being under the influence of a controlled
substance. Hermosillo completed and signed a plea form and specifically
initialed a box which stated that if he was not a citizen of the United States,
a guilty plea “can or will result in removal or deportation, exclusion from
admission to this country, denial of amnesty and denial of naturalization.”
His defense counsel also signed or initialed the plea form, attesting that she
“personally read and explained” the contents of the plea form, had discussed
“the consequences of this plea” with the defendant, and that Hermosillo had
“filled in and initialed each item to acknowledge his . . . understanding and
waivers.” And the trial judge signed the form, stating that he had
“questioned the defendant/defendant’s attorney” concerning the plea and
found that “the defendant understands . . . the consequences of the plea and
admissions.”
On March 13, 2002, the trial court declared a mistrial and dismissed
the jury after it deadlocked on the remaining charges. One hour and eleven
minutes later, Hermosillo’s defense counsel informed the court that
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Hermosillo had agreed to plead guilty to count one, residential burglary, and
count two, assault with a firearm. The District Attorney agreed to dismiss
the remaining charges and stipulated to a four-year sentence allowing
Hermosillo to become eligible for parole after two years.
Hermosillo completed and signed another plea form for these charges.
On this plea form, he initialed another box acknowledging that he understood
the mandatory immigration consequences of his plea:
“I understand that if I am not a U.S. citizen, this plea of
Guilty/No Contest may result in my removal/deportation,
exclusion from admission to the U.S. and denial of
naturalization. Additionally, if this plea is to an
“Aggravated Felony” listed on the back of this form, then I
will be deported, excluded, from admission to the U.S., and
denied naturalization.” (Emphasis added.)
The back page of the plea form defined “AGGRAVATED FELONIES”
in bold, capitalized headings. The first sentence read:
“ANY CONVICTION OF A NON-CITIZEN FOR AN
‘AGGRAVATED FELONY’ AS DEFINED UNDER
8 U.S.C. 1101(a)(43) WILL RESULT IN
REMOVAL/DEPORTATION, EXCLUSION, AND
DENIAL OF NATURALIZATION.”
The back page of the form also provided a non-exhaustive list of
aggravated felonies. The first two entries were: “ANY CRIME OF
VIOLENCE” and “BURGLARY.”
Hermosillo’s defense counsel signed the plea form, attesting that she
had discussed with Hermosillo “the consequences of this plea, including any
immigration consequences,” and she had personally observed him fill in and
initial each item to acknowledge his understanding. The trial judge also
signed the plea form, indicating he questioned Hermosillo and his counsel
and found that Hermosillo understood “the nature of the charges and the
consequences of the plea and admissions . . . .” The record contains no
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transcript of the plea hearing, which occurred over 20 years ago, because it
has been destroyed on order of the court pursuant to Government Code
section 69955, subdivision (e).
C. Sentencing and Deportation
In April 2002, pursuant to the stipulated term under the plea
agreement, the trial court sentenced Hermosillo to the middle term of four
years for count 1, three years for count 2, and 90 days for count 3, all to run
concurrently for a total of four years with 306 days in credit for time served.
Upon release from custody in 2003, Hermosillo received a Notice to
Appear before a federal immigration judge in removal proceedings because of
his conviction for residential burglary. Hermosillo hired an immigration
attorney and filed an application for a waiver and an adjustment of status
under the Immigration and Naturalization Act.
In April 2004, a federal immigration judge denied Hermosillo’s
applications and ordered his removal to Mexico because of his aggravated
felony burglary conviction, making him deportable under title 8 United
States Code section 1227(a)(2)(A)(iii).
D. Motion to Vacate Convictions
Over 18 years later, in October 2022, Hermosillo moved to vacate his
convictions under section 1473.7, subdivision (a)(1). In this motion,
Hermosillo argued that he was entitled to relief because, at the time of his
plea, he did not meaningfully understand the adverse immigration
consequences of his convictions, and he would not have pled guilty if he had
realized he would be deported. For support, he relied on his own declaration
and a declaration from immigration attorney Daniel Castaneda describing
potential alternative, immigration-neutral charges to which Hermosillo could
have tried to negotiate a plea.
5
Hermosillo alleged that his original defense counsel convinced him to
plead guilty right after the jury deadlocked on his felony charges, saying “I’m
not going through this again.” Hermosillo claimed that his attorney “put
pressure” on him to plead guilty to the remaining charges and warned only
that he would “be convicted and go to prison for many more years” if he faced
trial a second time.
Hermosillo stated that after he initially declined to plead guilty, opting
instead to go to trial again, Hermosillo’s attorney conferred with his mother
in the courthouse and then informed him that his mother believed he should
plead guilty. His attorney confirmed the prosecutor would accept a deal to
plead to the two serious felonies with a sentence of four years in prison.
According to Hermosillo, his attorney told him that the two strikes would
“never become a problem” if he moved to Las Vegas, reminding him that
“[his] own mother agree[d] with her.”2 Hermosillo claimed that days later,
his mother told him by phone that his defense attorney “kind of scared her”
into thinking that Hermosillo should accept the plea deal.
According to Hermosillo, his defense attorney never advised him, and
he consequently never knew, that his misdemeanor drug conviction would
have adverse immigration consequences or that he would be deported and
ineligible for permanent residency. He stated that defense counsel never
asked him about his immigration status. According to Hermosillo, his
defense counsel also did not explain that his felony convictions for burglary
2 Nevada enacted a three-strikes law in 1995. (Nev. Rev. Stat. Ann.
§ 207.010 et seq.) As of 2002, when Hermosillo entered his pleas, a strike
prior under Nevada law included any prior conviction “whether in this state
or elsewhere, of any crime which under the laws of the situs of the crime or of
this state would amount to a felony. . . .” (Nev. Rev. Stat. Ann.
§ 207.010(1)(a) & 1(b).)
6
and assault would result in “really bad immigration consequences” because
she “was so focused on avoiding a second trial[.]” Hermosillo alleged that if
he had been made aware of the immigration consequences of the guilty plea,
he “would have chosen to go to trial again.”
Hermosillo’s declaration did not explain why he initialed the boxes on
the plea forms stating that he understood the immigration consequences,
including mandatory deportation and exclusion from the United States for
the felony guilty plea. Although Hermosillo asserted that his mother was
involved in the felony plea discussions with defense counsel, and that defense
counsel failed to advise her of the immigration consequences as well, he
submitted no supporting declaration from his mother and no explanation for
its absence. Hermosillo also submitted no declaration from his defense
counsel and no evidence that anyone attempted to contact her for information
regarding the pleas or a supporting declaration.
The People opposed Hermosillo’s motion. The People first argued that
Hermosillo’s motion was untimely because it was not filed with reasonable
diligence under section 1473.7, subdivision (b)(2). Second, the People
asserted that Hermosillo had failed to meet his burden of proving beyond a
preponderance of the evidence that an error had occurred. For support, the
People cited the two separate plea forms signed by Hermosillo attesting that
he had been advised of and understood the consequences of his pleas,
including the mandatory immigration consequences for his felony plea. The
People argued that the only evidence to the contrary proffered by Hermosillo
consisted of his own “self-serving allegations.” Lastly, the People argued that
Hermosillo failed to meet his burden to establish prejudice.
The trial court held a hearing on Hermosillo’s motion on January 17,
2023. The court observed that “only the declaration of the defendant”
7
supported Hermosillo’s contention that he did not understand the
immigration consequences of his plea, and that his declaration “conflict[ed]
with his statements in the plea form.” The court offered to set an evidentiary
hearing “if either side wishe[d] to produce additional evidence.” After the
People declined, and Hermosillo’s counsel did not object or request an
evidentiary hearing, the court took the matter under submission.
Accordingly, Hermosillo did not testify himself and did not call or subpoena
his original defense counsel, or any other witness, to testify.
After taking the matter under submission, the court issued a written
order denying Hermosillo’s motion based on the papers. While it accepted the
motion as timely, the court found that Hermosillo did not meet his burden of
proof in part because the “plea documents make it clear that defendant was
facing mandatory deportation” and “[a]ny representations by the defendant to
the contrary lack credibility.” “Unlike many of the published decisions
addressing Section 1473.7, the exhibits submitted here [did] not include a
declaration by defendant’s trial attorney or other corroborating
evidence . . . .”
DISCUSSION
A. Standard of Review
We independently review on appeal a challenge to a criminal conviction
for being legally invalid due to prejudicial error within the meaning of section
1473.7. (People v. Espinoza (2023) 14 Cal.5th 311, 316, 319 (Espinoza).)
Under this standard, “ ‘an appellate court exercises its independent judgment
to determine whether the facts satisfy the rule of law.’ ” (Id. at pp. 319–320.)
“[F]actual determinations that are based on the credibility of witnesses
the [superior court] heard and observed are entitled to particular deference,
even though courts reviewing such claims generally may reach a different
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conclusion [from the trial court] on an independent examination of the
evidence . . . even where the evidence is conflicting.” (People v. Vivar (2021)
11 Cal.5th 510, 527 (Vivar), internal quotation marks omitted.) In this case,
however, neither party requested an evidentiary hearing after the trial court
offered to hold one, and the trial court therefore decided the matter on the
papers. “ ‘[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.” (Id. at p. 528.) Accordingly, we will independently
determine whether Hermosillo met his burden of proof under section 1473.7.
B. Governing Legal Principles
Section 1473.7 allows noncitizens no longer in criminal custody to
petition to vacate a conviction if they can establish the conviction is “ ‘legally
invalid due to prejudicial error damaging [their] 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); Espinoza, supra, 14 Cal.5th at p. 316.) The Legislature enacted
section 1473.7 “to codify Padilla v. Kentucky [(2010) 559 U.S. 356] and related
California case law and to encourage the growth of such case law in
furtherance of justice[,]” recognizing that “[t]he immigration consequences of
criminal convictions have a particularly strong impact in California.”
(§ 1016.2, subds. (g), (h); see Stats. 2018, ch. 825, § 1, subd. (c); see also
People v. Lopez (2022) 83 Cal.App.5th 698, 703 (Lopez).) Interpreting section
1473.7, the Supreme Court has elaborated that “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.” (Vivar, supra, 11 Cal.5th at
p. 516.)
9
As the moving party, the petitioner in a section 1473.7 proceeding bears
the burden of proof by a preponderance of the evidence. (§ 1473.7, subd.
(e)(1); Vivar, supra, 11 Cal.5th at p. 517.) The petitioner must prove two
elements. (Espinoza, supra, 14 Cal.5th at p. 319.) First, he must “show that
he did not meaningfully understand the immigration consequences of his
plea.” (Ibid.) A defendant’s own subjective error may provide a basis for
relief. (People v. Mejia (2019) 36 Cal.App.5th 859, 866; see also People v.
Alatorre (2021) 70 Cal.App.5th 747, 769.) “Next, the defendant must show
that his misunderstanding constituted prejudicial error. ‘[P]rejudicial
error . . . 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.’ ” (Espinoza, supra, 14 Cal.5th
at p. 319.)
A defendant seeking to withdraw his plea based on inadequate
advisement of immigration consequences must “corroborate such assertions
with objective evidence.” (Vivar, supra, 11 Cal.5th at p. 530, internal
quotation marks omitted.) “Objective evidence includes facts provided by
declaration, contemporaneous documentation of the defendant’s immigration
concerns or interactions with counsel, and evidence of the charges the
defendant faced.” (Espinoza, supra, 14 Cal.5th at p. 321.) “[N]o specific kind
of evidence is a prerequisite for relief,” but “[t]he more robust and inclusive a
record, the greater the opportunity for effective persuasion and meaningful
judicial review.” (Id. at p. 325.)
C. Hermosillo Failed to Meet His Burden of Establishing that He Did Not
Meaningfully Understand the Immigration Consequences of His Felony
Guilty Plea
Hermosillo contends he sufficiently “demonstrated that he did not
meaningfully understand the immigration consequences of pleading guilty”
10
based on his own declaration. Exercising our independent judgment, we
conclude that the trial court’s ruling was correct.
As noted, Hermosillo signed both plea forms and initialed boxes on both
forms indicating that he understood the immigration consequences of his
pleas. His attorney also signed or initialed both plea forms, indicating that
she had discussed the consequences of the pleas with Hermosillo, including
the immigration consequences of the felony plea. And the trial judge also
signed both plea forms, stating that he had questioned Hermosillo and his
counsel concerning the pleas and finding that Hermosillo understood the
consequences.
The felony plea form explicitly advised Hermosillo that his guilty plea
would have mandatory immigration consequences. Hermosillo signed the
form and initialed the boxes, including a box stating that “if this plea is to an
‘Aggravated Felony’ listed on the back of this form, then I will be deported,
excluded from admission to the U.S., and denied naturalization.” (Emphasis
added.) The back of the form stated in capital, bold, underlined letters that
aggravated felonies “WILL” result in deportation and included “ANY
CRIME OF VIOLENCE” and “BURGLARY” where the term imposed was
at least one year. Hermosillo’s defense counsel also signed or initialed the
plea form, attesting that she had discussed with Hermosillo “the
consequences of this plea, including any immigration consequences,” and she
had personally observed him fill in and initial each item to acknowledge his
understanding.
These plea forms contradict Hermosillo’s declaration that he did not
understand the immigration consequences of his guilty pleas. Moreover, his
declaration provides no explanation why he signed and initialed the plea
forms indicating that he understood the immigration consequences or why he
11
purportedly did not understand what he was initialing and signing.
Hermosillo grew up in San Diego since he was two years old and attended
local schools. He was fluent in English and did not require a translator or
interpreter at any point during the proceedings.
In his briefing, Hermosillo relies on the fact that the back page of the
felony plea form defining aggravated felonies did not include its own separate
box for him to initial. He asserts that in these circumstances, “it would be
entirely unreasonable to assume that [he], on his own, read and understood
everything written on the reverse side of the signature page of the plea form.”
But even in his own declaration, Hermosillo did not assert that he failed to
read or understand the back page of the felony plea form. As noted,
Hermosillo initialed the box on the front page explicitly stating that he
understood the mandatory immigration consequences for pleading guilty “to
an ‘Aggravated Felony’ listed on the back of this form . . . .” (Italics added.)
Hermosillo also signed a line on the form stating under penalty of perjury
that he had “read, understood, and initialed each item above and any
attached addendum, and everything on the form and any attached addendum
is true and correct.” And his attorney also signed or initialed a statement
stating that she had advised him of “any immigration consequences.”
We recognize that generic form statements and warnings on plea forms
are not necessarily dispositive. (See People v. Patterson (2017) 2 Cal.5th 885,
895–897; Lopez, supra, 83 Cal.App.5th at p. 716.) “Even where the form says
that the defendant ‘will’ be deported, it does not substitute for the advice of
counsel, and it is not a categorical bar to relief.” (People v. Manzanilla (2022)
80 Cal.App.5th 891, 906 (Manzanilla); see also People v. Lopez (2021) 66
Cal.App.5th 561, 578; People v. Curiel (2023) 92 Cal.App.5th 1160, 1175
(Curiel).)
12
But in those cases, other objective evidence—such as attorney notes,
oral testimony, or affirmative actions taken by defendants after their
convictions—substantiated the defendant’s version of events. (See
Manzanilla, supra, 80 Cal.App.5th at p. 910 [rejecting claim that a
defendant’s initials and signature on a plea form conclusively showed he
subjectively understood he would be deported and stating that this “has been
rejected by numerous courts where there is contemporaneous evidence to the
contrary . . . .” (Emphasis added.)].)
In Curiel, for example, the Second District recently found corroborating
evidence sufficient to overcome a defendant’s signed acknowledgement that
her plea would mandate deportation. (Curiel, supra, 92 Cal.App.5th at
pp. 1177–1178.) There, the defendant had signed a plea form stating, “I
understand that if I am not a citizen of the United States, I must expect my
plea of guilty or no contest will result in my deportation . . . .” (Id. at
p. 1165.) Curiel’s section 1473.7 motion relied heavily on her own declaration
to support her claim that she did not properly understand those immigration
consequences. (Id. at p. 1167.) She alleged that she had relied on her
defense counsel’s representations that if she avoided jail time, she could avoid
deportation. (Ibid.)
Critically, however, other objective evidence corroborated Curiel’s
account. (Curiel, supra, 92 Cal.App.5th at pp. 1177–1178.) The trial court
held an evidentiary hearing on her petition, at which both defendant and her
original defense counsel testified. (Id. at pp. 1168–1171, 1176–1177.) On
appeal, the court found that the testimony of Curiel’s defense counsel
“corroborated the statements in Curiel’s declaration” and confirmed that the
advice she received regarding the immigration consequences of her plea “was
inadequate and incomplete.” (Id. at p. 1176.)
13
Here, Hermosillo put forth no comparable evidence corroborating the
claims made in his declaration. He provided no declaration or testimony
from his original defense counsel and no evidence that anyone even
attempted to contact her to provide information or supply a supporting
declaration. (Cf. Espinoza, supra, 14 Cal.5th at p. 325 [“Both the district
attorney and Espinoza’s counsel represented to the court that they tried,
without success, to contact the attorney who represented Espinoza at the
time his plea was entered”].) Hermosillo also provided no corroborating
declaration from his mother. In his own declaration, Hermosillo asserted
that his defense counsel spoke with his mother in the courthouse after the
jury had deadlocked, at the time of the second plea. His defense counsel
allegedly reported to Hermosillo that his mother believed he should plead
guilty. Hermosillo also declared that a couple of days later, his mother
explained over the phone that his defense counsel “kind of scared her” into
thinking that Hermosillo should take the plea deal and supposedly did not
inform her “of any bed [sic] immigration consequences.” But Hermosillo
submitted no declaration from his mother corroborating his own hearsay
assertions about her interactions with defense counsel, and he provided no
explanation for the absence of such a declaration. And Hermosillo also did
not request an evidentiary hearing on his petition, even after the trial court
expressed skepticism about his “self-serving” declaration and offered to hold a
hearing “if either side wishe[d] to produce additional evidence.”
The other evidence cited by Hermosillo does not corroborate his claims
regarding the immigration consequences of his pleas. He relies most heavily
on the circumstances surrounding his misdemeanor drug plea. He contends
that his defense counsel: (1) allowed him to plead guilty to the drug charge
even though the prosecution had already decided not to pursue it;
14
(2) mistakenly filled out the plea form to indicate a violation of Health and
Safety Code section 11350, subdivision (a), rather than Health and Safety
Code section 11550; and (3) failed to sign the plea form and wrote the
incorrect maximum sentence of six months. But none of these points has any
direct bearing on Hermosillo’s understanding of the immigration
consequences of his guilty pleas. On this sparse record, we cannot find any
deficient performance by defense counsel without anyone having provided her
with an opportunity to explain or refute Hermosillo’s accusations. And even
assuming she made any of these alleged mistakes regarding the misdemeanor
drug plea, they would not logically establish that Hermosillo did not
understand the immigration consequences of his felony plea. Notably,
Hermosillo points to no similar errors on his felony plea form, which was
completed several days later, even though it was these aggravated felony
convictions that carried the mandatory consequences resulting in his
deportation, exclusion from the United States, and ineligibility for
naturalization.
In his opening brief, Hermosillo argues that “in light of [his]
youthfulness and utter lack of experience with the criminal justice system, it
is highly probable that [he] did not actually read the language on the [plea]
forms, but rather, trusted that his attorney was telling him what he needed
to know.” But Hermosillo made no such claim in his sworn declaration. He
did not assert that he failed to read the plea forms before he initialed and
signed them, nor did he claim that he read them but misunderstood their
meaning. We will not find error based on assumptions of fact not supported
by Hermosillo’s own declaration.
Even in his declaration, Hermosillo did not definitively state that his
attorney did not advise him of the specific immigration consequences of his
15
aggravated felony convictions. He merely stated that defense counsel never
told him the felony plea “would have really bad immigration consequences.”
But even if defense counsel did not characterize the immigration
consequences as “really bad,” that does not necessarily negate her attestation
on the plea form that she did advise him of those consequences. And even if
defense counsel did not ask Hermosillo about his immigration status, as he
claimed in his declaration, that does not necessarily establish that he or his
family members did not tell her of his immigration status. As worded,
therefore, Hermosillo’s declaration did not explicitly refute what he and his
defense counsel represented by initialing and signing the plea forms.
A defendant who is advised that he will be deported as a result of his
guilty plea “is not entitled to simply ignore the admonitions he was given
about the consequences of the plea, and argue that he unilaterally assumed
he would be treated in direct contravention of what he was advised orally and
in writing.” (People v. Abdelsalam (2022) 73 Cal.App.5th 654, 663
(Abdelsalam).) In Abdelsalam, the court affirmed the conviction of a
defendant who had signed a plea form stating that if he was not a citizen, he
“must” expect his plea “will” result in deportation. (Id. at p. 659, original
italics.) The defendant, his defense counsel, and the trial court had all signed
the plea form, attesting that immigration consequences had been discussed
and understood. (Id. at pp. 659–660.) The trial court orally advised
Abdelsalam that his plea would result in deportation, and Abdelsalam
responded that he understood and would “wait for immigration.” (Id. at
p. 660.) But Abdelsalam later submitted a section 1473.7 motion and
supporting declaration claiming that he was not advised of the mandatory
immigration consequences of the plea. (Id. at pp. 660–661.)
16
On appeal from an order denying the motion, the court found that the
only available evidence aside from Abdelsalam’s declaration—the plea forms
and transcript—showed that Abdelsalam was fully advised of the
immigration consequences of his plea. (Abdelsalam, supra, 73 Cal.App.5th at
pp. 663–666.) Based on its own independent judgment, the Court of Appeal
concluded that Abdelsalam’s declaration alone did not sufficiently establish
that he did not meaningfully understand those consequences. (Ibid.) The
court concluded: “The claim must be corroborated by evidence beyond the
defendant’s self-serving statements.” (Id. at p. 664.)
As in Abdelsalam, we find that Hermosillo did not meet his burden of
establishing by a preponderance of the evidence that he did not
“meaningfully understand” the immigration consequences of his guilty pleas.
(§ 1473.7, subd. (a)(1).) More specifically, he did not meet his burden of
overcoming the facts stated on the guilty plea forms, signed under penalty of
perjury by himself, and signed or initialed by his defense counsel and the
trial judge. Because Hermosillo failed to corroborate his assertions with
objective evidence (Vivar, supra, 11 Cal.5th at p. 530), we conclude that
Hermosillo’s declaration is inadequate under these circumstances to establish
that he did not meaningfully understand the consequences which he
previously acknowledged understanding—that his pleas would subject him to
mandatory deportation, exclusion from admission to the United States, and
denial of naturalization.
Because the evidence is insufficient to establish that an error occurred,
we need not address the prejudice prong of the section 1473.7 analysis.
17
DISPOSITION
The order is affirmed.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P.J.
CASTILLO, J.
18