People v. Perez

Filed 9/7/21 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080837
Plaintiff and Respondent,
(Super. Ct. No. VCF043238-99)
v.
JOSE ADRIAN PEREZ, ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is hereby ordered that the partially published opinion filed on August 17, 2021,
be modified as follows:
1. On page 6, the first paragraph under heading I. beginning “Section 1437.7”
is deleted and the following paragraph is inserted in its place:
Section 1473.7 permits a person to file a motion to vacate a conviction
that is “legally invalid due to a 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, subd. (a)(1).) In adopting and
amending section 1473.7, the Legislature considered the problems faced by
defendants “who were unaware of the immigration consequences posed by
a plea entered many years earlier.” (Vivar, supra, 11 Cal.5th at p.
523.) Although such motions “must be timely” (People v. Perez (2018) 19
Cal.App.5th 818, 826), they “ordinarily are brought many years after the
plea.” (Vivar, supra, 11 Cal.5th at p. 526 [motion brought nearly 16 years
after plea was entered].) Whether a particular motion is timely is governed
by subdivision (b) of section 1473.7.
2. On page 13, second full paragraph, the first sentence beginning “A
comparison of” is deleted and the following sentence is inserted in its place:
A comparison of September 14, 2019, with December 23, 2019—the date
Perez filed his motion—shows it took Perez 100 days after his removal to
Mexico to file his section 1473.7 motion
3. On page 13, second full paragraph, the fourth sentence beginning “In such,”
the phrase “in 100 days” is inserted between the words “filed” and “after” so the sentence
now reads:
In such circumstances, we find as a matter of law that Perez acted with
reasonable diligence in getting his section 1473.7 motion filed in 100 days
after his removal to Mexico.
4. On page 17, first full paragraph, fourth sentence beginning “These ties,” the
phrase “The ties existing at the time of his plea” is inserted in place of the words “These
ties” so the sentence now reads:
The ties existing at the time of his plea are contemporaneous evidence
supporting the inference that Perez would have rejected the plea and taken
the risk of going to trial to avoid removal from the United States.
5. On page 17, first full paragraph, in the fifth sentence beginning “At the
time of his plea,” the phrase “was almost 19 and a half years old,” is inserted between the
words “Perez” and “had” so the sentence now reads:
At the time of his plea, Perez was almost 19 and a half years old, had spent
the last 16 years of his life in the United States, had been a legal permanent
resident for approximately five years, and had virtually no ties to Mexico.
There is no change in judgment.
FRANSON, Acting P. J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
2.
Filed 8/17/21 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080837
Plaintiff and Respondent,
(Super. Ct. No. VCF043238-99)
v.
JOSE ADRIAN PEREZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Law Office of Allen Broslovsky and Allen Broslovsky for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Defendant and Respondent.
-ooOoo-
In December 2019, defendant Jose Adrian Perez filed a motion pursuant to Penal
Code section 1473.71 to vacate a 2000 conviction entered after he pled guilty to felony
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the Background and parts II. and III. of the
Discussion.
1 Unlabeled statutory references are to the Penal Code.
theft. The sole ground raised in the opposition to Perez’s motion was its untimeliness.
At the hearing on the motion, the superior court stated: “While I think there are a bunch
of humanitarian reasons why it should be granted, I have to say the motion is denied.”
On appeal, the Attorney General contends the court properly denied the motion because
(1) it was untimely and (2) Perez did not establish he suffered the “prejudicial error”
required by section 1473.7, subdivision (a)(1).
The published part of this opinion addresses the meaning of the timeliness
provisions set forth in subdivision (b) of section 1473.7, which is a pure question of law
and not dependent upon the facts of this case. That subdivision contains a general rule
requiring the court to deem the motion timely in certain circumstances. (§ 1473.7, subd.
(b)(1).) It also contains a discretionary exception that permits the court to deem the
motion untimely if the moving party did not act with reasonable diligence in bringing the
motion after specific triggering events. (§ 1473.7, subd. (b)(2).) Thus, the absence of
reasonable diligence does not automatically result in the motion being deemed untimely.
A superior court has the discretionary authority, after considering the totality of the
circumstances, to deem a motion timely even if the moving party did not act with
reasonable diligence.
The unpublished portion of this opinion includes our analysis of whether Perez
acted with reasonable diligence in filing his motion and our determination that the motion
was timely filed. It also includes our analysis of whether Perez demonstrated the
existence of an error that was both prejudicial and damaging to his ability to
meaningfully understand and accept the immigration consequences of his no contest plea.
(§ 1473.7, subd. (a)(1).) Based on our independent review of the cold record in
accordance with the principles set forth in People v. Vivar (2021) 11 Cal.5th 510 (Vivar),
we conclude Perez satisfied the requirements of section 1473.7, subdivision (a)(1) and is
entitled to relief.
We therefore reverse the order denying the section 1473.7 motion.
2.
BACKGROUND*
Perez was born in Mexico in January 1981. In 1984, when he was three years old,
his parents brought him to the United States. His declaration states he has “remained
continuously in the United States since.” He became a legal permanent resident of the
United States when he was about 14 years old. He attended Lindsay High School. He
has three children, all of whom are United States citizens. His parents are legal
permanent residents of the United States.
In October 1999, a felony complaint was filed that charged Perez with
participating in taking personal property means of force from a man in violation of
section 211. The offense was committed in an inhabited dwelling.
On March 7, 2000, pursuant to a negotiated plea bargain, Perez pled guilty to one
count of felony theft (§ 487, subd. (c)) in exchange for an indicated sentence of two
years. The minute order from that hearing included a paragraph that read:
“( ) Defendant advised and understands the maximum penalties,,
consequences of his plea, the possible defenses ( ) consequences of
violation of probation ( ) possible deportation if not a citizen of the United
States ( ) driver’s license will be suspended.”
Only the first set of parentheses in this paragraph contained a check mark. The
lack of a check mark before the immigration warning of “possible deportation if not a
citizen of the United States” indicates that the warning was not given to Perez. The
minute order included a space where the name of an interpreter could be entered. This
space was left blank, which implies Perez participated in the proceedings using English.
On April 12, 2000, Perez appeared for sentencing and was represented by James
Michael Kordell.2 The superior court sentenced Perez to the midterm of two years in
* See footnote, ante, page 1.
2 Perez’s opening brief asserts he initially was represented by the Tulare County
Public Defender’s Office and, because of a conflict, his representation was assumed by
Kordell, an attorney connected to the Tulare County Conflict Defender’s Program.
3.
state prison less credits, imposed a $400 restitution fine, and stated restitution to the
victim would remain open. The court also directed Perez to participate in a counseling or
education program containing a substance abuse component. With credits, Perez served
half of the two-year sentence. The minute order for the April 2000 proceedings, like the
previous minute order, contained no name in the space for the interpreter.
When he was released, he was taken into custody by Immigration and Customs
Enforcement (ICE) and put into removal proceedings. Perez’s declaration stated: “I was
eventually ordered removed and deported to Mexico where I was separated from my
family for over three years.”
In 2008, Kordell, the attorney who represented Perez at his sentencing, pleaded no
contest to felony charges of maintaining a place for selling or using methamphetamine.
As a result, Kordell was suspended from the practice of law. In 2010, he was disbarred.
In June 2015, he died.
On September 3, 2019, the United States Immigration Court in San Francisco held
an individual hearing for Perez in case No. A-070-716-459 and ordered that he be
returned to Mexico.3 Later that month, Perez was returned to Mexico.
On December 23, 2019, Perez filed a motion to vacate his conviction pursuant to
section 1473.7. The motion was supported by (1) Perez’s declaration dated August 29,
2018; (2) a printout from the State Bar of California’s website showing a chronology of
the license status, discipline, administrative action, and State Bar Court cases involving
Kordell; (3) and a copy of Kordell’s certificate of death, which was issued by the County
of Tulare. Perez’s declaration asserts Kordell did not mention anything about
immigration and did not tell him that his plea would cause him to be deportable from the
United States and to lose his status as a legal permanent resident. Perez also asserts the
3 Perez’s motion and the district attorney’s opposition list the date of the order as
September 13, 2019. We granted our own motion for judicial notice of the fact the
removal order was issued on September 3, 2019.
4.
superior court did not inform him that there would be immigration consequences
resulting from his plea. Perez states he would not have entered his plea if he had known
of the horrible immigration consequences that would result.
On December 31, 2019, the district attorney filed an opposition to Perez’s motion
to vacate. The opposition referred to Perez’s 2000 guilty plea, the two-year sentence to
state prison, and the September 2019 order of the United States Immigration Court
directing that Perez be returned to Mexico. The sole ground raised in the opposition was
the untimeliness of the motion. It did not, however, quote or paraphrase the statutory
provisions addressing timeliness that became effective on January 1, 2019. The
opposition’s conclusion stated: “[Perez] brings this motion 19 years after he entered his
plea. His unjustifiable delay causes prejudice to the People. Accordingly, the People
respectfully request that the Court deny [Perez’s] Motion to Vacate Conviction.”
On January 3, 2020, the superior court held a hearing on the motion. The judge
was not the judge who took Perez’s plea and sentenced him in 2000.4 At the start of the
hearing, counsel for Perez stated he had a copy of Perez’s parents’ resident cards and his
children’s birth certificates. Immediately after counsel’s statement, the court said:
“The Court has read all the pleadings in this matter and reviewed the file.
What strikes me is this is very similar to a case I had about five years ago,
where — and I used the term equity, that really demanded I grant the
motion because of his family and ties and everything else. And that’s
certainly what I have here. The family is here, and he’s been here forever.
I made that ruling, granting the motion, saying that equity demands he stays
here. [¶] The Fifth District Court of Appeal overturned it, saying equity is
not a consideration for ruling on these motions. [¶] While I think there are
a bunch of humanitarian reasons why it should be granted, I have to say the
motion is denied.”5
4 As a result, “the judge hearing the section 1473.7 motion had no firsthand
familiarity with the circumstances surrounding [Perez’s] plea.” (Vivar, supra, 11
Cal.5th at p. 527.)
5 To provide context for Judge Paden’s statement, we took judicial notice of our
nonpublished opinions in People v. Superior Court (Collado) (Nov. 7, 2011, F062852)
5.
That statement ended the proceedings and the court subsequently filed a minute
order reflecting its denial of the motion. In February 2020, Perez filed a notice of appeal
and a request for certificate of probable cause.
DISCUSSION
I. INTERPRETATION OF TIMELINESS PROVISIONS
Section 1473.7 permits a person to file a motion to vacate a conviction that is
“legally invalid due to a 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,
subd. (a)(1).) Such a motion “must be timely.” (People v. Perez (2018) 19 Cal.App.5th
818, 826.) Timeliness is governed by subdivision (b) of section 1473.7.
A. Initial Timeliness Requirement
The first version of subdivision (b) of section 1473.7 was enacted in 2016, was
effective from January 1, 2017, through December 31, 2018, and stated:
“A motion pursuant to paragraph (1) of subdivision (a) shall be filed with
reasonable diligence after the later of the following: [¶] (1) The date the
moving party receives a notice to appear in immigration court or other
notice from immigration authorities that asserts the conviction or sentence
as a basis for removal. [¶] (2) The date a removal order against the moving
(peremptory writ of mandate issued directing the superior court to vacate its June 8, 2011
order granting Teodoro Collado’s motion under Penal Code section 1016.5 and to enter a
new order denying the motion) and People v. Superior Court (Contreras) (Oct. 20, 2011,
F063031) (peremptory writ of mandate issued directing the superior court to vacate its
June 15, 2011 order granting Maria Contreras’s motion pursuant to Penal Code section
1016.5 and to enter a new order denying the motion). The first sentence of the
DISCUSSION in the latter opinion stated: “There is no basis for the court to rule in
‘equity’ as a means not to follow the law when presented with a motion pursuant to
section 1016.5.” (Opn. at p. 6.) Those opinions did not address motions under section
1473.7, which did not become effective until January 1, 2017.
Those decisions and others like them appear to have prompted the Legislature to
enact section 1473.7 in 2016 and broaden the grounds for vacating certain convictions
with harsh immigration consequences. (Stats. 2016, ch. 739, § 1.)
6.
party, based on the existence of the conviction or sentence, becomes final.”
(Stats. 2016, ch. 739, § 1, italics added.)
The use of the word “shall” in the phrase “shall be filed with reasonable diligence”
plainly indicated a moving party was required to act with reasonable diligence after the
later of the two events described in paragraphs (1) and (2) of subdivision (b) of former
section 1473.7. Thus, under the first version of section 1473.7, courts were required to
deny a motion when the moving party had not acted with reasonable diligence in filing
the motion.
B. Current Timeliness Provisions
The current version of subdivision (b) of section 1473.7 was enacted in 2018 and
became effective on January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment made
substantial changes to the timeliness provisions, which now provide:
“(1) Except as provided in paragraph (2), a motion pursuant to paragraph
(1) of subdivision (a) shall be deemed timely filed at any time in which the
individual filing the motion is no longer in criminal custody.
“(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed
untimely filed if it was not filed with reasonable diligence after the later of
the following:
“(A) The moving party receives a notice to appear in immigration
court or other notice from immigration authorities that asserts the
conviction or sentence as a basis for removal or the denial of an
application for an immigration benefit, lawful status, or
naturalization.
“(B) Notice that a final removal order has been issued against the
moving party, based on the existence of the conviction or sentence
that the moving party seeks to vacate.” (§ 1473.7, subd. (b), italics
added.)
7.
The amendment relaxed the mandatory rule enacted in 2016 and granted superior
courts the discretionary authority to deem a motion timely where the moving party did
not act with reasonable diligence after the later of the triggering events.6
Subdivision (b)(1) of section 1473.7 sets forth a mandatory general rule for the
timeliness of motions based on the absence of a meaningful understanding of the
immigration consequences of a plea. Its use of the phrase “shall be deemed timely”
plainly creates a mandatory rule. “It is a well-settled principle of statutory construction
that the word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily
construed as mandatory, particularly when both terms are used in the same statute.”
(Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443.) We adopt the
ordinary meaning of the word “shall” and conclude the rule established by section
1473.7, subdivision (b)(1) is mandatory. (See People v. Ledesma (1997) 16 Cal.4th 90,
103 [in ordinary usage, “shall” is mandatory].) The Legislature’s findings, which are
contained in the uncodified section of the 2018 amendment (Stats. 2018, ch. 825, § 1),
and other provisions of section 1473.7 do not indicate a contrary legislative intent.
The clause “[e]xcept as provided in paragraph (2)” clearly identifies an exception
to the mandatory rule stated in subdivision (b)(1) of section 1473.7. Based on the plain
meaning of the text, the mandatory rule is properly characterized as a general rule subject
to one exception.
Next, we consider the nature and scope of the exception. Subdivision (b)(2) of
section 1473.7 uses the phrase “may be deemed untimely.” “[I]n delineating the trial
court’s authority by use of the word ‘may,’ the statutory language itself indicates the trial
court has broad discretion.” (People v. Moine (2021) 62 Cal.App.5th 440, 448.) Thus,
6 For convenience, this opinion refers to the events described in subparagraphs (A)
and (B) of paragraph (2) of subdivision (b) of section 1473.7 as the “triggering events.”
8.
applying the ordinary meaning of the word “may,” we conclude the exception in
subdivision (b)(2) of section 1473.7 grants discretionary authority to the court.
The discretion to deem a motion untimely arises “if it was not filed with
reasonable diligence after the later of the later of the” triggering events. (§ 1473.7, subd.
(a)(2).) According to the definition of “if” in one legal dictionary, “[i]n deeds and wills,
this word, as a rule, implies a condition precedent, unless it is controlled by other words.”
(Black’s Law Dict. (6th ed. 1990) p. 746; see Shackley v. Homer (1910) 87 Neb. 146,
149–150 [“No doubt the general meaning of the word ‘if’ implies a condition precedent,
unless it be controlled by other words”].) We conclude this definition of “if” also
establishes its ordinary meaning when used by our Legislature in a statute. Applying this
ordinary meaning, we conclude the use of the word “if” in subdivision (b)(2) of section
1473.7 indicates the discretionary authority to deem a motion untimely is conditional.
The statutory condition is satisfied when the motion “was not filed with reasonable
diligence after the later of the” triggering events. (§ 1473.7, subd. (b)(2).) Only when
the condition is satisfied does the court have the discretion to deem a motion untimely.
Thus, the lack of reasonable diligence does not automatically require the superior court to
deem the motion untimely. Instead, the absence of reasonable diligence subjects the
motion to the court’s discretionary authority and, in exercising its discretion, the court
might deem the motion timely or might deem it untimely. Section 1473.7 does not
provide any guidance for exercising that discretion, such as a list of factors that should be
weighed by the court. Based on the lack of explicit statutory guidance, we conclude the
well-established general rule governing grants of discretion applies. Thus, the
“[d]iscretion is abused when the court exceeds the bounds of reason, all of the
circumstances being considered.” (People v. Bradford (1976) 17 Cal.3d 8, 20.) In other
words, before exercising its discretionary authority regarding the timeliness of the
motion, the court must consider the totality of the circumstances.
9.
C. Summary of Timeliness Principles
Based on the absence of ambiguities in the statutory text and the litigants’ decision
not to present extrinsic materials relevant to the construction of section 1473.7, we adopt
the plain meaning of the language. (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th
627, 634 [plain meaning of statute control and resort to extrinsic sources is unnecessary];
see generally, Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1495 [use of extrinsic
materials to identify latent ambiguity].) We conclude subdivision (b) of section 1473.7
unambiguously establishes the following principles governing the timeliness of a motion
to vacate a conviction based on the absence of a meaningful understanding and knowing
acceptance of the immigration consequences of a plea.
First, if “the individual filing the motion is no longer in criminal custody” and the
triggering events specified in subparagraphs (A) and (B) of subdivision (b)(2) of section
1473.7 have not yet occurred, the motion must be deemed timely under the mandatory
rule in subdivision (b)(1) of section 1473.7.
Second, if the triggering events have occurred, the superior court must determine
whether the motion was “filed with reasonable diligence after the later of” the triggering
events. (§ 1473.7, subd. (b)(2).)
Third, if the superior court determines the moving party acted with reasonable
diligence after the later of the triggering events, the motion must be deemed timely under
the mandatory rule in subdivision (b)(1) of section 1473.7. In other words, the
discretionary exception to deem the motion untimely does not apply.
Fourth, if the superior court determines the moving party did not act with
reasonable diligence after the later of the triggering events, the court must exercise its
discretionary authority and decide whether to deem the motion untimely. To properly
exercise the discretionary authority granted by subdivision (b)(2) of section 1473.7, the
court must consider the totality of the circumstances.
10.
II. APPLICATION OF TIMELINESS PROVISIONS*
A. Superior Court’s Decision
The superior court’s analysis of Perez’s motion to vacate did not expressly apply
the foregoing principles or otherwise refer to the language of section 1473.7. Instead, the
court referred to an earlier case in which he (1) used the term equity, (2) concluded equity
demanded that he grant the motion, and (3) was overturned by this court. After
describing that earlier case, the court concluded: “While I think there are a bunch of
humanitarian reasons why it should be granted, I have to say the motion is denied.”
The court’s statements from the bench and the subsequent minute order did not
include the finding required by section 1473.7, subdivision (e)(4). That provision states
in relevant part: “When ruling on a motion under paragraph (1) of subdivision (a), the
only finding that the court is required to make is whether 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 plea of guilty or nolo contendere.” Because the court did not make
this finding and the opposition to the motion did not address Perez’s understanding or the
existence of prejudicial error, we infer the court did not reach those issues and, instead,
determined the motion was untimely.
We conclude the superior court’s determination that the motion was untimely was
based on legal error. Specifically, the court did not apply the provisions set forth in
subdivision (b) of section 1473.7 that govern the timeliness of the motion. The court’s
reference to an earlier case addressing a section 1016.5 motion suggests the court viewed
Perez’s motion to vacate as being brought under that section instead of section 1473.7 or,
alternatively, believed the criteria was the same for each type of motion. Both
alternatives are incorrect. Section 1016.5 does not contain a timeliness provision like
* See footnote, ante, page 1.
11.
subdivision (b) of section 1473.7. Also, the analysis in our 2011 opinion could not have
stated anything relevant to the timeliness of a section 1473.7 motion because section
1473.7 did not exist in 2011.
Having concluded the timeliness principles set forth in subdivision (b) of section
1473.7 were not applied to Perez’s motion, we next consider how to remedy that error.
One possibility would be to remand the matter to the superior court with instructions to
analyze the timeliness of the motion using the principles established by section 1473.7,
subdivision (b). Instead, we will consider the circumstances surrounding Perez’s motion
and determine whether the timeliness of the motion can be determined as a matter of law.
B. The Motion Was Timely Filed
The record establishes that Perez “is no longer in criminal custody.” (§ 1473.7,
subd (b)(1).) Therefore, he falls within the mandatory general rule in subdivision (b)(1)
of section 1473.7 unless the exception set forth in subdivision (b)(2) of section 1473.7
applies.
An analysis of whether the discretionary exception might apply to Perez starts
with determining whether the triggering events specified in subparagraphs (A) and (B) of
subdivision (b)(2) of section 1473.7 have occurred and, if so, the date of the last to occur.
Perez’s motion stated he “had an individual hearing with the US Immigration
Court on September []3, 2019 in San Francisco, California, where the judge ordered that
he be returned to Mexico. Mr. Perez was returned to Mexico on September 14, 20[1]9, in
Case No. A070 716 459, and has been there since.” The district attorney’s opposition to
Perez’s motion conceded these facts, stating: “On September []3, 2019, the United States
Immigration Court ordered the Defendant be returned to Mexico. Defendant is currently
in Mexico.” It appears Perez’s attorney relied on this concession when he appeared at the
January 3, 2020 hearing because the attorney did not bring a copy of the immigration
order or other documents showing its issuance. He did, however, bring documents
12.
relating to Perez’s parents and children to further demonstrate Perez’s strong personal ties
to this country.
We conclude the order of the immigration court issued in September 2019
qualifies as “a final removal order … issued against” Perez for purposes of section
1473.7, subdivision (b)(2)(B). We further conclude that Perez’s removal to Mexico in
September 2019 constituted notice that the final order had been issued. Therefore, the
triggering event described in section 1473.7, subdivision (b)(2)(B) occurred in September
2019.
A comparison of the September 2019 date with December 23, 2019—the date
Perez filed his motion—shows it took Perez over two, but less than three, months to file
his section 1473.7 motion. Accordingly, we consider whether this lapse of time means
the motion “was not filed with reasonable diligence” as that phrase is used in section
1473.7, subdivision (b)(2). Here, Perez was physically removed from the United States
and was at least 200 miles away from the county where the motion was filed. In such
circumstances, we find as a matter of law that Perez acted with reasonable diligence in
getting his section 1473.7 motion filed in less than three months after his removal to
Mexico. Because Perez acted with reasonable diligence, his motion must be deemed
timely pursuant to section 1473.7, subdivision (b)(1). Consequently, there is no need to
remand this case to the superior court to consider the totality of the circumstances and
make a discretionary determination of the motion’s timeliness.
III. MERITS OF THE MOTION*
A. General Principles
The Legislature adopted section 1473.7 to make relief available “to certain
immigrants who accepted pleas without understanding the immigration-related
* See footnote, ante, page 1.
13.
consequences of such decisions.” (Vivar, supra, 11 Cal.5th at p. 528.) Subdivision (a) of
section 1473.7 states:
“A person who is no longer in criminal custody may file a motion to vacate
a conviction or sentence for any of the following reasons: [¶] (1) The
conviction or sentence is legally invalid due to prejudicial error damaging
the moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences
of a plea of guilty or nolo contendere. A finding of legal invalidity may,
but need not, include a finding of ineffective assistance of counsel.”
The moving party has the burden of proof by a preponderance of the evidence. (§
1473.7, subd. (e)(1); Vivar, supra, 11 Cal.5th at p. 517.) In accordance with the statutory
text, Perez must demonstrate (1) an “error” occurred, (2) the error was “prejudicial,” and
(3) the error damaged his ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of his plea.
B. Standard of Review
A superior court’s decision to grant or deny a section 1473.7 motion is subject to
independent review. “ ‘[U]nder independent review, an appellate court exercises its
independent judgment to determine whether the facts satisfy the rule of law.’
[Citation.] … ‘ “[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. [Citations.] … In section 1473.7
proceedings, appellate courts should … give particular deference to factual findings
based on the trial court’s personal observations of witnesses. [Citation.] … Ultimately it
is for the appellate court to decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.” (Vivar, supra, 11 Cal.5th at pp. 527–528, fn.
omitted.) As a practical matter, the independent standard of appellate review is
appropriate because the superior court and the appellate court are in the same position
when reviewing a cold record and interpreting written declarations. (Id. at p. 528.)
14.
In this case, no witnesses testified at the January 2020 hearing and the judge who
heard the motion was not the judge to accepted Perez’s plea or sentenced him. Because
the cold record in this case places us in the same position as the trial court, we will
independently review the record and determine whether Perez carried his burden of
proving a prejudicial error damaged his ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse immigration consequences of
his plea. (§ 1473.7, subd. (a)(1).)
C. The Error
Perez’s motion asserted an error on the part of his defense attorney damaged his
ability to understand and defend against the adverse immigration consequences of his
plea of nolo contendere. Perez asserts he does not recall any advisement by the superior
court of the immigration consequences of his plea. This assertion is supported by the
minute order from his plea hearing, which does not show a check mark inside the
parentheses before the line stating he was advised of “possible deportation if not a citizen
of the United States.” Perez also asserts he does not recall any advisement by his defense
attorney and, instead, states Kordell informed him that there would be no negative
immigration consequences because Perez was a legal permanent resident. Kordell died in
2015 and, as a result, is not available to confirm or deny Perez’s account of the advice
given.
To establish the type of “error” required by section 1473.7, a defendant need not
establish ineffective assistance of counsel. Section 1473.7, subdivision (a)(1) states: “A
finding of legal invalidity may, but need not, include a finding of ineffective assistance of
counsel.” Accordingly, “the 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. Mejia (2019)
15.
36 Cal.App.5th 859, 871 (Mejia), quoting People v. Camacho (2019) 32 Cal.App.5th
998, 1009 (Camacho).)
Based on our independent review in accordance with the principles established in
Vivar, we conclude Perez has carried his burden of showing an error in the form of a
failure to advise him of the immigration consequences of his plea. His declaration, which
has contemporaneous corroboration in the form of the minute order, is sufficient to carry
his burden.
D. Misunderstanding
Here, the information that was not provided to Perez directly involved the
immigration consequences of his plea. The absence of information about those
consequences damaged Perez’s ability to meaningfully understand and knowingly accept
the immigration consequences of entering a no contest plea. Stated another way, it is not
reasonable to expect that the 19-year-old Perez had the level of legal sophistication and
knowledge to understand how his plea would impact his status as a legal permanent
resident. (See People v. Patterson (2017) 2 Cal.5th 885, 898 [“ ‘Immigration law can be
complex’ ”].) Thus, we conclude Perez’s declaration is credible in asserting: “I did not
know that my plea and resultant conviction would have such horrible consequences.” It
follows that Perez has carried his burden of showing the error damaged his “ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of [his] plea.” (§ 1473.7, subd. (a)(1).)
E. Prejudice
Section 1473.7 does not contain a definition of “prejudicial.” In Vivar, the
Supreme Court concluded an error is prejudicial if the defendant “demonstrat[es] a
reasonable probability that [he] would have rejected the plea if [he] had correctly
understood its actual or potential immigration consequences.” (Vivar, supra, 11 Cal.5th
at p. 529.) Courts assess whether a reasonable probability has been shown by considering
16.
the totality of the circumstances. (Ibid.) Particularly relevant factors include (1) the
defendant’s ties to the United States, (2) the importance the defendant placed on avoiding
removal, (3) the defendant’s priorities in seeking a plea bargain, and (4) whether the
defendant had reason to believe an immigration-neutral negotiated disposition was
possible. (Id. at pp. 529–530.)
Perez’s declaration asserted he would not have entered a no contest plea if he “had
known of the horrible immigration consequences that would have resulted[,] requiring
that I be deported, and preventing me from applying for [legal permanent resident] status
again.” This assertion must be corroborated with objective evidence. (Vivar, supra, 11
Cal.5th at p. 530.) Here, as in Vivar, the objective evidence consists of details about
Perez’s strong personal ties to the United States. These ties are contemporaneous
evidence supporting the inference that Perez would have rejected the plea and taken the
risk of going to trial to avoid removal from the United States. (See Camacho, supra, 32
Cal.App.5th at pp. 1011–1012 [defendant’s strong ties to this country supported inference
that he “would never have entered the plea if he had known that it would render him
deportable”].) At the time of his plea, Perez had spent the last 16 years of his life in the
United States, had been a legal permanent resident for approximately five years, and had
virtually no ties to Mexico. His parents are legal permanent residents of the United
States.7 These personal details provide sufficient corroboration and establish a
reasonable probability that Perez would not have entered the plea that resulted in his
deportation if he had meaningfully understood the immigration consequences at the time
of his plea and, instead, would have risked going to trial if he had known he was going to
be deported as a result of his plea.
7 The copies of the birth certificates of Perez’s children that his attorney brought to
the January 3, 2020, hearing are not part of the record and, therefore, we cannot
determine if one or more of the children were alive at the time of his plea.
17.
To summarize, based on our independent review of the record, we conclude Perez
has demonstrated the existence of an error that was both prejudicial and damaging to his
ability to meaningfully understand and accept the immigration consequences of his no
contest plea. As a result, this matter should be remanded to the superior court with
directions to grant his section 1473.7 motion. (See People v. Rodriguez (2021) 60
Cal.App.5th 995, 1006 [reversed order denying defendant’s motion to vacate conviction
and remanded with directions to grant motion]; Mejia, supra, 36 Cal.App.5th at p. 874
[reversed order denying defendant’s § 1473.7 motion and remanded to allow him to
withdraw his guilty pleas]; Camacho, supra, 32 Cal.App.5th at pp. 1004, 1012 [reversed
denial of motion and remanded with instructions to vacate the conviction].)
DISPOSITION
The order denying the section 1473.7 motion is reversed. The matter is remanded
and the superior court is directed to grant the motion and vacate the conviction.
FRANSON, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
18.