People v. Maciel CA2/8

Filed 1/9/23 P. v. Maciel CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314126
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA066518
v.
LUZ MUNOZ MACIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Lee W. Tsao, Judge. Reversed and
remanded with instructions.
Miriam K. Billington, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven D. Matthews, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In 2021, appellant Luz Munoz Maciel filed a motion to
vacate her 2001 conviction for brandishing a firearm at a motor
vehicle occupant. She claimed defense counsel gave incomplete
advice as to the adverse immigration consequences of her no
contest plea and failed to investigate and negotiate an
immigration-neutral plea agreement. After argument, the trial
court denied the motion and appellant now appeals.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND1
I. 2001 Conviction for Brandishing a Firearm
On July 31, 2001, the People filed a complaint against
appellant, charging the following: Count 1—carrying a loaded,
unregistered firearm, in violation of Penal Code2 section 12031,
subdivision (a)(1); Count 2—child abuse (as to her minor son), in
violation of section 273a, subdivision (a); and Count 3—
brandishing a firearm at a person in a motor vehicle, in violation
of section 417.3.
Arraignment took place on July 31, 2001. Appellant was
present in court with private counsel Lorenzo Pereyda and pled
1 We note three motions to augment the record on appeal
were filed. On December 28, 2021, we granted appellant’s motion
to augment filed December 27, 2021. On April 20, 2022, we
granted respondent’s motion to augment filed April 1, 2022. On
April 26, 2022, we granted respondent’s motion to augment filed
April 5, 2022.
2 Undesignated statutory references are to the Penal Code.
2
not guilty to all three counts with the assistance of an official
Spanish language interpreter.
The early disposition hearing took place on August 29,
2001. The minute order specifies that “no offer reached” during
the hearing. We have no other information about that hearing
and can only speculate about whether and how plea negotiations
proceeded.
At the preliminary hearing on September 17, 2001,
appellant was present in court with private counsel Catherine
Case. The court heard from three witnesses—Olivia Heredia,
Angel Rocha, and Officer Gilbert Jara.
Olivia Heredia (Heredia) testified that at approximately
1:40 p.m. on July 28, 2001, she was in her car, parked in the
driveway of the apartment building where she resides, waiting
for her children to come down so they could go swimming. While
waiting, she heard a car honk twice, looked in her rearview
mirror, and saw appellant in a big, black truck pull into the
driveway, right behind her car.3 Appellant “honked the horn at
me to move” so “I started my car, and I went all the way to the
carport, and I parked the car.” She remained seated in the car,
“waiting for [her] kids to come out.” When Heredia’s children
came down and sat in the backseat of the car, Heredia saw
appellant’s boyfriend Filiberto Porcayo (Porcayo)—seated in the
passenger seat of appellant’s truck—get out and approach the
driver’s side of Heredia’s car. Porcayo asked Heredia, “Why don’t
you just fight her,” meaning appellant. Heredia noticed Porcayo
3 Appellant and Heredia live in the same apartment building
and are neighbors. Appellant’s and Heredia’s “little boys used to
play” together.
3
was intoxicated; she also noticed appellant’s “little boy” was
seated in appellant’s truck.
Appellant then got out of her truck with a “silver and
black” gun and “swang it around” while Porcayo “kept telling
[Heredia] to fight [appellant], knowing that [appellant] had the
gun.” Appellant “was intoxicated” and “waving the gun around”;
appellant “was asking me to fight her, and my kids were already
in the car, and they [saw] the gun.” At some point, appellant
pointed the gun at Heredia. Heredia’s “kids started crying and
freaking out” so she “was trying to calm them down, and that’s
when [her] husband walked out” and saw appellant with a gun.
He headed back to the apartment to call the police but Porcayo
followed him, “telling him not to call the police.” Appellant drove
off, and Heredia, still in the carport, heard “three gunshots go off”
from the direction of appellant’s truck.
Heredia’s husband, Angel Rocha (Rocha), testified next. On
the date in question, Rocha was walking towards the carport
when he noticed appellant pointing a “black, chrome and
automatic” gun at his wife. Rocha “got mad.” Porcayo said
something to appellant, prompting her to put the gun away “in
her waistband.” Rocha announced he was “going to call the cops,”
but Porcayo grabbed Rocha’s forearm and insisted, “You ain’t
going to do nothing. You’re not going to do nothing, nothing.”
Porcayo was “buzzed” and “drunk.” Rocha felt “threatened”
because Porcayo said his home boys would “get” him and he was
“always bringing up he’s in a gang.” He then saw Porcayo get in
appellant’s truck while he relayed to “the [911] dispatcher the
license plate” information. About 15 to 20 seconds after appellant
and Porcayo drove off, Rocha heard three gunshots from the
direction of appellant’s car.
4
The third and final witness was City of Bell Police Officer
Gilbert Jara. He conducted a traffic stop on a black Navigator,
with appellant in the driver’s seat and Porcayo in the front
passenger seat. Officer Jara recovered a loaded handgun about
200 to 250 feet away from appellant’s vehicle. Officer Jara’s
partner saw appellant’s 10-year-old son “inside [the truck] still,
almost laying down” and asked him to come out. Appellant’s son
complied, and while running towards the officers, “something fell
from his pant and it was a magazine from a gun.” Officer Jara
picked up the “magazine with nine[-]millimeter copper-type
bullets.”
The court held appellant to answer on all three counts. The
court further found appellant in violation of probation and
ordered her to serve 60 days in county jail.
On October 1, 2001, the People filed an information with
three counts and an additional count—assault with a
semiautomatic firearm, in violation of section 245, subdivision
(b), also a felony. It was further alleged appellant personally
used a firearm, within the meaning of sections 12022.5, 1192.7,
subdivision (c), and 667.5, subdivision (c).
On October 29, 2001, new private counsel Edward A.
Esqueda (Esqueda) relieved appellant’s prior counsel.
During the plea proceeding on December 5, 2001, appellant
was present in court, represented by Esqueda and assisted by an
official Spanish language interpreter. Appellant withdrew her
plea of not guilty to count 3 (violation of section 417.3—
brandishing a firearm in presence of motor vehicle occupant) and
pled no contest. In exchange for appellant’s no contest plea to
count 3, the People agreed to ask the court to sentence appellant
5
to the low term of 16 months and to move to dismiss the
remaining counts.
At the plea, the prosecutor advised appellant of the effect of
a no contest plea, including: “[I]f you are not a citizen of the
United States, conviction of this offense will result in your being
deported, being denied the right to become a citizen, or, if you
leave the country, being denied the right to reenter.” However,
the Tahl4 waiver, which was translated for appellant and signed
by her as part of her plea, stated: “I understand that if I am not
a citizen of the United States, the conviction for the offense
charged may have the consequences of deportation, exclusion
from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” (Italics added.) The
minute order memorializing the plea also states that appellant
was advised that she may be deported as a consequence of the
plea. The court found each such waiver “knowingly,
understandingly, and explicitly made.” When asked if appellant
plead “freely and voluntarily and because [she] believe[d] it’s in
[her] best interests to do so,” she answered, “Yes.”
During the plea, the court asked appellant whether she had
had a chance to discuss any defense she might have with her
attorney. Appellant told the court she had not talked to her
attorney “about this,” and that she had spoken to her attorney a
“little” about the case. Appellant’s attorney then volunteered to
the court: “Your Honor, I can represent to the Court that we have
thoroughly discussed this case. [¶] She is one of these very
difficult clients. She thinks she is getting, for lack of a better
term, shafted in this case. [¶] She doesn’t realize her exposure of
4 In re Tahl (1969) 1 Cal.3d 122 (Tahl), overruled on other
grounds by Mills v. Municipal Court (1973) 10 Cal.3d 288, 291.
6
19 years. Unfortunately, she has no record, and because of that,
she’s never had any problems. [¶] The People have made a very
generous offer, and I’ve encouraged her to accept that offer. She
understands everything in my opinion, and she’s willing to accept
the deal.” The court asked appellant if she wanted to go forward
with the agreement. She answered, “Yes. I want to finish this.”
The court accepted appellant’s no contest plea to count 3
and sentenced appellant to the low term of 16 months in state
prison, with 196 days of custody credit. The remaining counts
were dismissed. Appellant was ordered to pay a restitution fine
for $200 and a parole restitution fine for $200.
II. 2021 Motion to Vacate
On March 9, 2021, appellant filed a motion to vacate her
2001 conviction pursuant to section 1473.7. Appellant argued the
no contest plea was legally invalid for three reasons: (1) defense
counsel failed to advise her that accepting the People’s plea offer
would make it impossible for her to defend against deportation;
(2) defense counsel failed to properly defend against the
immigration consequences of the plea; and (3) appellant
subjectively misunderstood the adverse immigration
consequences of her plea due to defense counsel’s incomplete
advice. Appellant argued defense counsel “failed his duty . . . by
not also distinguishing the charges that were aggravated
felonies.” Appellant argued she would have rejected the plea had
she known it would prevent her from being able to fight
deportation and that there was an immigration-neutral
alternative. Appellant argued these prejudicial errors warrants
vacatur per section 1473.7, as she is now prevented from
becoming a U.S. citizen and is in fear of deportation.
7
In support of her motion, appellant submitted her sworn
declaration, a declaration from attorney Amanda Schuft, and a
declaration from Esqueda.
Appellant’s sworn declaration set out the following facts.
Appellant is a citizen of Mexico, where she was born in 1964. She
came to the United States (U.S.) in 1978, when she was 14 years
old and seven months pregnant; she had left her husband
Enrique, who beat her. She became a U.S. legal permanent
resident through amnesty under President Ronald Reagan. She
applied for U.S. citizenship in 1999, but “did not know enough
English to qualify.” While finalizing her divorce with Enrique,
she started going out with Porcayo, who she described as “a bad
guy, very violent” and a “gang member.” He “hit” her and
previously threatened to kill her. Despite this, she “was with him
for 14 years because [she] did not know how to leave.”
According to appellant, during the 2001 incident, it was
Porcayo who “pulled out the gun and shot into the air.” She then
“grabbed the gun out of his hands” while the neighbors (Heredia
and Rocha) ran to call the police. She threw the gun out of the
car because Porcayo told her to. It was Porcayo who gave the
“two clips” to her son and told him to hide them from the police.
Appellant was a legal permanent resident at the time she
entered her plea in 2001. Her defense counsel Esqueda told
appellant the maximum time she could serve was “9 years but
that he could reduce it to 16 months.” He also “told me . . . when
I got out of prison there would be an immigration hold on me and
I would be deported.” Appellant cried and told Esqueda she had
five children in the U.S. and “did not want to be deported”
because her “whole life was here and [she] had worked so hard for
it.” Esqueda recommended to appellant that she “take the plea.”
8
He told appellant she could go to trial but that there was not
much to fight and that she could lose and serve nine years in
prison; there was “never an option that would save me from
deportation.”
In the declaration of Amanda Schuft, directing attorney
with Immigrant Defenders Law Center, she explained appellant’s
2001 conviction for section 417.3, which has a sentence of 365
days or more, is categorized as an “aggravated felony” under
federal immigration law. Appellant’s conviction makes her not
only deportable, but also removes the possibility of any defense to
deportation. “Had [appellant] pled instead to another one of the
charges, [such as count 1’s charge of carrying a loaded firearm,]
former [P]enal [C]ode section 12031(a)(1), . . . she would not be at
risk of the Department of Homeland Security initiating removal
proceedings against her . . . and she would be eligible to apply to
naturalize to become a United States citizen.”
In the (very brief) declaration of Esqueda, he stated: “After
a review of my cases, I found that [appellant’s case] was shredded
years ago and no longer exists. Moreover, I have no recollection
of the facts of the case nor the client.”
III. Hearing and Ruling on Motion to Vacate
On May 13 and 14, 2021, the hearing on appellant’s motion
to vacate took place. The court remarked that it “read and
considered the letters of support and the medical records. The
letters of support are from individuals who know [appellant]
through her church, indicating [appellant] as an active member
and she contributes in a variety of ways to the church. [¶] There
is also a letter from [appellant’s] niece and her eldest sibling and
her husband. The medical records document treatment for PTSD
beginning around 2015.” We recite the trial court’s summary of
9
this additional evidence, as the record before us does not contain
copies of the letters of support and medical records.
The court asked the People whether their file indicates that
appellant was ever offered a plea to count 1. The district
attorney answered: “I have reviewed the file. She was only
offered a plea to the brandishing at all times.”
The trial court denied the motion on the record before it
and found no prejudicial error. The court stated its ruling on the
record:
“Vivar,5 I think, eloquently states or discusses what’s at
stake for a noncitizen residing in the United States who has been
convicted of a crime with potential immigration consequences. [¶]
[Appellant], like Mr. Vivar, has been in the country for many
years, has established close and lasting ties with family and
community. [Appellant] has, in fact, gone above and beyond just
like Mr. Vivar by being very active in her church. She is
characterized by members of her church as being indispensable to
their mission, so her contributions and her family ties are
undisputed.”
Appellant “had no prior record. She did sign a Tahl waiver,
which . . . indicated that she may be deported, and as . . . pointed
out, that is not sufficient to adequately advise [appellant] of the
immigration consequences.” The plea transcript “advised that
she will be deported, which is a significant fact, but, again, a
factor and not necessarily dispositive in this court’s view.”
The court continued: Appellant’s declaration acknowledges
that “Esqueda told her . . . when she got out of prison, there
would be an immigration hold on her and she would be deported.”
Appellant’s counsel argues “this was incomplete because there is
5 People v. Vivar (2021) 11 Cal.5th 510 (Vivar),
10
no indication that [Esqueda] advised her that a plea to the
brandishing count is actually an aggravated felony.” The court
found “it is a distinction that does not carry a meaningful
difference in this case in terms of what [appellant] was told to
expect would happen if she pled no contest to the brandishing.”
Esqueda “was clear she would be deported . . . and that an
immigration hold would be put on her. That’s clear. It’s clear
advice about what [appellant] could expect from the plea, and in
this court’s view, what defense counsel told [appellant] about the
immigration consequences of her plea was sufficient to advise her
of consequences.”
Appellant argued Esqueda “should have negotiated a plea
to count 1” which “was immigration neutral.” The court ruled:
“The fact that an immigration-neutral offense was actually
charged in the information only has, in my view, limited
relevance because the argument can always be made that where
a noncitizen pleads to a deportable offense that’s charged in the
information, defense counsel should have reached or negotiated
an agreement to an immigration-neutral charge that was not
alleged in the information.” The “record is clear” that appellant
“had no reason to believe that an immigration-neutral negotiated
disposition was possible.”
“[T]he effect of [charging appellant with an additional
count—assault with a semiautomatic firearm] significantly
increase[d] her exposure in state prison should she be convicted.”
Appellant “faced six years . . . for the child endangerment charge
in count 2 plus an additional eight months for the brandishing
charge.” After being charged with the additional count and gun
allegation, “she faced up to 19 years in state prison.” “[G]iven the
fact that the charges actually increased in this case, I don’t see
11
any reason for [appellant] to have believed or, for that matter,
counsel to have believed that an immigration-neutral disposition
such as a plea to count 1 was possible.” The court referred to the
fact that “this case settled on the eve of trial. In fact, when the
case was called for trial, [appellant] and her lawyer would have
known that the time to resolve the case was quickly running out
and that—a plea to count 3 seemed perfectly reasonable under
the circumstances because . . . an immigration-neutral
disposition was not likely at that point.”
“Vivar is distinguishable because in that case, the
defendant was actually offered a plea to an immigration-neutral
sentence and counsel . . . failed to advise Mr. Vivar that by
pleading to the burglary, the immigration-neutral offense, he
could avoid deportation, and that’s a material distinction between
Vivar and this case.” The court found the advice given to
appellant by Esqueda was sufficient to explain the immigration
consequences of her plea. “[T]here was no reason to believe that
an immigration-neutral negotiated disposition was possible, and
that any error that occurred was not prejudicial.”
Appellant timely appealed.
DISCUSSION
I. Applicable Law
Mandatory deportation from the United States is an
immigration consequence when 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.
§ 1228(c) [aggravated felony is conclusively presumed
deportable].) With respect to appellant’s case, a violation of
section 417.3, constitutes an aggravated felony, a mandated
12
deportable offense under federal law. (8 U.S.C.
§§ 1227(a)(2)(A)(iii) & 1227(a)(2)(C).)
Section 1473.7 authorizes a person no longer in criminal
custody 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
Strickland6 standard. (People v. Camacho (2019) 32 Cal.App.5th
998, 1005.) 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. (Id. 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.)
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,
6 Strickland v. Washington (1984) 466 U.S. 668.
13
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.)
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
14
cold record in a section 1473.7 proceeding. (Vivar, at p. 528.) It
is for the appellate court to ultimately decide, based on its
independent judgment, whether the facts establish prejudice
under section 1473.7. (Vivar, at p. 528.)
III. Analysis
Appellant contends the trial court erred when it denied her
motion to vacate the conviction because defense counsel gave her
incomplete advice as to adverse immigration consequences and
there was a viable immigration-neutral charge available (via
count 1, carrying a loaded firearm in violation of former § 12031,
subd. (a), which is not an aggravated felony). She argues she
would have insisted on pleading no contest to a different, more
immigration-neutral charge or gambled on a trial if she had
known that she had no defense to permanent removal on some
charges but might on others.
Section 1473.7, subdivision (a)(1), requires appellant to
show that her “ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences” of a conviction/plea was damaged by
prejudicial error which may, but need not, be based on ineffective
assistance of counsel. (§ 1473.7, subd. (a)(1).)
We note here that defense counsel’s declaration was not
informative, as he had no file on appellant’s matter and did not
personally recall any information pertaining to his representation
of appellant in 2001. On this record it is undisputed that
Esqueda did not tell appellant about the true and complete
consequences of her plea. Indeed, appellant’s declaration states:
“There was never an option that would save me from
deportation.” He did not tell her that by pleading to this
particular charge, she was condemning herself to mandatory
15
deportation. Counsel’s incomplete advisement which omitted the
fact that pleading to another of the charges would not have
required mandatory deportation resulted in appellant’s
uninformed and ignorant plea.
We are persuaded by appellant’s argument that Esqueda
failed to advise her fully of the adverse immigration
consequences of the plea bargain. It is correct Esqueda told
appellant one adverse consequence of her plea, that is, she would
be deported. But he failed to tell her that she was also giving up
her defenses to deportation, one of which was a plea to count 1,
carrying a loaded unregistered firearm, which would have
preserved her ability to challenge deportability.
Esqueda had a responsibility to give his client a complete
advisement of all material adverse immigration consequences.
Not telling her what immigration defenses she was giving up by
her plea does not fulfill his obligation to her as counsel. To tell a
client that under the plea bargain they will be deported no
matter what and under all circumstances does not absolve
defense counsel when they also fail to advise their clients about
other potential options that would leave them with a defense to
deportation.
Esqueda’s failure to completely advise appellant damaged
her “ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences” of the plea. (§ 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. It is quite
another to accept the adverse consequences when you do not
know that deportation could be avoided with a plea to a count
with exactly the same punishment as the count that mandated
16
deportation. Esqueda told appellant she would be deported—
period; this led her to believe she had no defense whatsoever to
the prospect of deportation. This was incomplete advice. She
also should have been advised that a plea to count 1 would not
have made deportation mandatory. In other words, she would
have been afforded an opportunity to defend against deportation.
Because of counsel’s incomplete advice, appellant was ignorant of
her options and lost the opportunity to make a meaningful and
knowing decision about the immigration consequences of the
plea. To add to the confusion, the Tahl waiver she signed
provided that she “may” face deportation while the prosecutor
told her she would be deported.
The trial court found that an immigration-neutral
disposition was “not likely” at that point in the proceedings as
trial was set to begin. This appears to be speculative and
unsupported by the facts. Count 1, the immigration-neutral
alternative, carried the same punishment as count 3, the count to
which appellant pled. This fact would seem to strengthen
appellant’s negotiating leverage because a plea to count 1 would
not have necessitated a change in the length of the custody
sentence the People wanted her to serve as part of the plea
agreement. And there is no evidence in the record that the
People had specific reason to insist on a plea to count 3 as
opposed to count 1.
The trial court also found there was no reason for appellant
to believe that an immigration-neutral negotiated disposition was
possible. Of course not, as she was never told that a plea to at
least one of the charges against her, count 1, was immigration-
neutral. If appellant was never told of the option, she had no
reason to insist that her counsel try to negotiate a plea to that
17
option on her behalf. We reject this finding as it begs the
question of whether she was fully advised of the adverse
consequences of her plea.
Finally, the trial court found that what defense counsel told
appellant about the immigration consequences was sufficient
advisement of the adverse consequences of the plea. We disagree.
Omitting the fact that certain charges in the information were
immigration-neutral and others were not, is omitting a critical
adverse consequence of pleading to the charge mandating
deportation.
It is error to tell a defendant they may be deported when
deportation is mandatory. (Vivar, supra, 11 Cal.5th at p. 521.) It
is equally insidious to tell a defendant there is no option but
deportation when the immigration-neutral charge in the
information is staring both attorney and client right in the face.
Counsel’s advice damaged appellant’s ability to defend against
deportation and to make a knowing and intelligent decision as to
how to resolve the charges against her with respect to her
immigration status.
IV. 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.) Factors relevant to this
inquiry include the defendant’s ties to the U.S., the importance
18
the defendant placed on avoiding deportation, the defendant’s
priorities in seeking a plea bargain, and whether the defendant
had reason to believe an immigration-neutral disposition was
possible. (Vivar, at pp. 529–530.) Other factors include the
defendant’s remaining ties or lack thereof to the home country;
the defendant’s immigration status in the U.S. at the time of the
plea; the defendant’s criminal history; and the defendant’s
employment history. (People v. Lopez (2022) 83 Cal.App.5th
698, 714 (Lopez).)
Importantly, it is not enough for a defendant simply to
declare that she would not have accepted any plea that would
result in deportation. The defendant must corroborate such
assertions with objective evidence, that is contemporaneous
evidence to substantiate her expressed preferences. (Vivar,
supra, 11 Cal.5th, at p. 530; Mejia, supra, 36 Cal.App.5th at
p. 872.)
Appellant has met that requirement here. It is undisputed
that she has been in the U.S. since 1977 when she arrived at
age 14. She received permanent residency status during the
amnesty program of the 1980’s and applied for U.S. citizenship
when she became eligible to do so. She had no remaining ties to
Mexico (her father lived in the U.S. as well) and she told her
counsel she did not want to be deported because her five children
were in the U.S., as was her “whole life.” She presented a
reasonable explanation for her silence when the prosecutor
recited the immigration consequences of the plea in that she, of
course, did not know about the possibility of an immigration-
neutral disposition because of counsel’s failure to tell her about it.
She had no familiarity with the criminal justice system as her
criminal history consists of a 2000 conviction for driving under
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the influence of alcohol. There is nothing in the record to suggest
she sustained any other convictions in the meantime. To the trial
court, she presented letters from family, friends and church
members to substantiate her contributions to and active
participation in the community, which the trial court did not
question.
Here, we conclude appellant’s long and deep ties to the
U.S., her lack of experience with the criminal justice and
immigration systems, and the undisputed concern she expressed
to her counsel about the immigration consequences of the plea
sufficiently corroborate appellant’s claim that her ability to
remain in the U.S. was a paramount concern. (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 responding to certain criminal
charges’ ”].) We conclude it is reasonably probable appellant
would have rejected the plea agreement had she correctly
understood there was an immigration-neutral alternative that
did not mandate deportation.
Exercising independent review, we conclude appellant has
carried her burden for section 1473.7 relief. Accordingly, we
reverse and remand with instructions to grant appellant’s motion
to vacate her conviction pursuant to section 1473.7,
subdivision (e).
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DISPOSITION
The order denying appellant’s motion to vacate her
conviction is reversed. The matter is remanded to the superior
court with directions to grant the motion and vacate the
conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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