People v. Curiel CA2/8

Filed 6/2/23 P. v. Curiel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B317814
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA060094)
v.
BEATRIZ ADRIANA CURIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. David Walgren, Judge. Reversed and
remanded with directions.
Christopher L. Haberman, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Noah P. Hill and Steven D. Matthews, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Beatriz Curiel appeals from the order denying her motion
to withdraw her no contest plea and vacate her convictions under
Penal Code1 section 1473.7, subdivision (a). Curiel contends the
trial court erred in denying her motion because she demonstrated
she did not meaningfully understand the adverse immigration
consequences of her plea, and it is reasonably probable she would
have rejected the plea had she understood those consequences.
We conclude Curiel satisfied her burden of establishing that she
is entitled to relief under section 1473.7. We accordingly reverse
the order denying Curiel’s motion and remand to the trial court
with directions to grant the motion and vacate the convictions.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Charges
In a seven-count information filed on February 26, 2008,
Curiel and her husband, Saul Desantiago, were each charged
with two counts of identity theft (§ 530.5, subd. (a); counts 1–2),
one count of making a false financial statement (§ 532a, subd. (1);
count 3), two counts of possession of a forged driver’s license
(§ 470b; counts 4–5), and two counts of grand theft auto (§ 487,
subd. (d)(1); counts 6–7). On March 5, 2008, Curiel was
arraigned and pleaded not guilty to all counts.
According to a preplea probation officer’s report, Curiel and
Desantiago were accused of using the personal identification
information and paycheck stub of Luz Salazar to purchase two
vehicles from a car dealer, Vic’s Motors. Desantiago had been
Salazar’s real estate agent, and he obtained Salazar’s personal
1 Unless otherwise stated, all further statutory references
are to the Penal Code.
2
information while representing her in the purchase of her home.
After the home went into foreclosure due to Desantiago’s poor
business dealings, he threatened Salazar and her husband that
“something bad would happen” to them if they went to police.
Salazar was afraid of Desantiago, and she later obtained a
restraining order against Desantiago and Curiel. During the
investigation, the police discovered that Curiel also had a driver’s
license issued in another person’s name.
At the time of her arrest, Curiel had no criminal history.
The report stated that Curiel may have been influenced by
Desantiago to participate in the criminal plot, and that she had
shown poor judgment in going along with her husband’s scheme.
The detective in charge of the investigation told the probation
officer that Desantiago “needs to be watched,” and that Curiel
“was just stupid,” indicating that Desantiago, not Curiel, had
orchestrated the crime. The detective was not opposed to
probation for Curiel.
II. The No Contest Plea
At a July 10, 2018 hearing, the prosecutor informed the
trial court that both Curiel and Desantiago had agreed to a
negotiated plea. The prosecutor originally offered each of them a
plea requiring 180 days in county jail, but accepted the
counteroffer made by the defendants’ attorneys. In exchange for
pleading no contest to counts 1, 3, and 6, Curiel would be
sentenced to three years of probation and 45 days of Caltrans
service, and Desantiago would be sentenced to 90 days in county
jail and 90 days of Caltrans service. Both defendants would be
joint and severally liable to pay restitution to Vic’s Motors in the
amount of $11,396 prior to sentencing. If they failed to make full
restitution, they would each receive a sentence of 90 days in
3
county jail and 90 days of Caltrans service, or alternatively,
180 days in county jail. The prosecutor noted that Curiel’s
sentence of probation was “based on the fact she has no priors
and is a primary caretaker of the couple’s . . . six children.”
Prior to entering into the plea, Curiel signed a four-page
plea form, commonly known as a Tahl waiver. (In re Tahl (1969)
1 Cal.3d 122, overruled on other grounds by Mills v. Municipal
Court (1973) 10 Cal.3d 288, 291.) She also initialed the boxes
next to paragraphs on the form acknowledging that she
understood and agreed to the terms of the plea, the advisements
and waivers of her rights, and the consequences of the plea.
One of the paragraphs stated: “Immigration Consequences—
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, exclusion from admission or reentry to the United
States, and denial of naturalization and amnesty.” Another
paragraph provided: “Prior to entering this plea, I have had a
full opportunity to discuss with my attorney the facts of my case,
the elements of the charged offense(s) and enhancement(s), any
defenses that I may have, my constitutional rights and waiver of
those rights, and the consequences of my plea.” On the last page
of the form, Curiel signed an acknowledgment stating that she
had “read and initialed each of the paragraphs above and
discussed them with my attorney,” and that her initials “mean
that I have read, understand and agree with what is stated in the
paragraph.”
Curiel’s privately retained attorney, Arvand Naderi, also
signed an acknowledgment on the plea form, which stated,
among other things, that he had “reviewed this form with my
client” and “discussed . . . the consequences of the plea.”
4
In addition, a duly sworn Spanish-language interpreter signed an
acknowledgment indicating that she had translated this form to
the defendant, and that defendant had “stated that he or she
understood the contents on the form.”
At the plea hearing, Curiel was present, represented by
Naderi, and assisted by a Spanish-language interpreter. Prior to
taking the plea, the trial court asked Curiel whether she had
enough time to discuss the case and the plea agreement with her
counsel, and whether her counsel had explained the nature of the
charges, any possible defenses, and the consequences of the plea.
Curiel answered affirmatively. Curiel further confirmed that she
had reviewed the plea form with the assistance of the interpreter,
and had signed and initialed the form to indicate that she
understood its contents.
The trial court reiterated the waiver of rights and the
consequences of the plea set forth in the form, including that “[i]f
you are not a citizen of the United States you must expect that
your plea of guilty or no contest will result in your deportation,
exclusion from admission or reentry into the United States and
denial of naturalization and amnesty.” When asked if she
understood this consequence, Curiel answered, “Yes.” The court
also inquired, “Do you have any questions about the forms,
anything I’ve said, anything your attorneys have said, the
charges, anything the prosecutor said, anything whatsoever?
Now is the time to ask.” Curiel answered, “No.” Both Curiel and
Desantiago entered a no contest plea to counts 1, 3, and 6, and
the court accepted the pleas.
The sentencing hearing was held on February 2, 2009.
The trial court indicated it had received a signed letter from a
representative of Vic’s Motors, stating that the defendants had
5
purchased a car from the dealer, which settled the amount owed
as restitution. Based on that letter, the court ruled that the
restitution had been paid in full. In accordance with the plea
agreement, Curiel was sentenced to three years of probation and
45 days of Caltrans service. Desantiago was sentenced to three
years of probation, 90 days in the county jail, and 90 days of
Caltrans service. They each received one day of custody credit for
time served. The court advised both defendants that if they left
or were deported from the United States, they were not to reenter
illegally, and they were to report to their probation officer within
72 hours of their reentry.
In 2017, Curiel successfully moved to expunge her 2008
convictions under section 1203.4.
III. The Motion to Vacate the Convictions
On September 10, 2021, more than 12 years after her no
contest plea, Curiel filed a motion to withdraw the plea and to
vacate her convictions under section 1473.7. Curiel argued that
she did not meaningfully understand the adverse immigration
consequences of her plea because her former attorney, Naderi,
failed to properly advise her of those consequences.
Curiel supported her motion with, among other documents,
her own signed declaration. As set forth in her declaration,
Curiel was referred to Naderi by her husband’s defense counsel,
Feliz Martinez. At Curiel’s first meeting with Naderi, he
inquired about her immigration status. When Curiel informed
Naderi that she did not have legal status in the United States, he
told her that “he would do what he could to avoid jail time.”
Curiel’s husband, Desantiago, who was a lawful permanent
resident, was advised to assume the majority of the responsibility
for the crime. As a result, the plea agreements required
6
Desantiago to serve jail time while Curiel only had to perform
community service with Caltrans. They also had to pay over
$10,000 in restitution. Both Curiel and Desantiago were assured
that “these were good plea bargains,” and that they should accept
them. Neither of them were told whether there were any
immigration consequences associated with their pleas. They
“presumed there were not any and that [they] were only looking
at the possibility of jail time.”
Desantiago later applied to become a United States citizen
so that he could petition for Curiel to gain lawful status. In
anticipation of helping Curiel become a lawful resident,
Desantiago approached his prior counsel, Martinez, about “the
possibility of cleaning up his record.” Martinez assured
Desantiago that he could assist him, and he advised Curiel to
approach Naderi for the same purpose. In 2017, both Curiel and
Desantiago paid their former defense attorneys to file paperwork
to expunge their convictions. Curiel did not realize at the time
that the expungement had no beneficial effect with respect to her
immigration status.
After her husband applied for citizenship with the federal
government, Curiel learned that both she and Desantiago had
pleaded to aggravated felonies. Due to the nature of the
convictions, the couple’s immigration attorney advised
Desantiago to withdraw his application. Desantiago later died.
Following his death, Curiel was advised by the immigration
attorney that she still might be able to gain lawful status through
her adult daughter, and that her mother could apply for an
unlawful presence waiver on her behalf. However, to be eligible
for a change in status, Curiel would have to address her
convictions. In her declaration, Curiel stated that if she had been
7
informed of how the convictions would affect her ability to gain
lawful status and to defend herself in immigration court, she
never would have agreed to the plea, even if it meant serving jail
time.
Curiel also supported her motion with a signed declaration
from her immigration counsel, Guillermo Carrillo. According to
his declaration, Carrillo was retained to represent Curiel in her
efforts to legalize her presence in the United States. When
Carrillo contacted Naderi in 2021 about his prior representation
of Curiel, Naderi indicated that he no longer had a copy of
Curiel’s case file because so much time had passed, but he still
had a good recollection of Curiel and her husband. In a series of
conversations with Carrillo, Naderi initially was incredulous
about the fact that Curiel’s convictions constituted an aggravated
felony and a crime of moral turpitude for immigration purposes.
While Naderi expressed concern for Curiel, it was evident to
Carrillo that he “did not understand the technical aspect of how
Ms. Curiel’s criminal matter interacted with immigration law.”
Naderi later requested that Carrillo draft a declaration for
his review. Carrillo sent Naderi a copy of a proposed declaration,
which stated, among other things, that Naderi did not recognize
the immigration consequences associated with Curiel’s plea at
the time of his representation, and that if he had recognized
those consequences, he would have counseled his client
differently. After reviewing the draft declaration, Naderi
informed Carrillo that he had spoken with his attorney and
“cannot sign that document.”
The People filed an opposition to the motion to vacate the
convictions. The People argued that Curiel was fully advised of
the immigration consequences of her plea because she signed a
8
Tahl waiver acknowledging that she understood the mandatory
immigration consequences, and she then confirmed her
understanding of those consequences in a colloquy with the court.
The People also asserted that Curiel’s statements in her
declaration were self-serving and contrary to the written and oral
advisements that she received at the time of her plea. The People
supported the opposition with Curiel’s Tahl waiver, transcripts of
her plea and sentencing hearings, and the probation officer’s
report.
IV. The Hearing and Ruling on the Motion
On December 20, 2021, the trial court held an evidentiary
hearing on Curiel’s motion. Curiel called her former defense
attorney, Naderi, to testify. According to his testimony, Naderi
solely practiced criminal defense, and had been doing so since
2004. He did not remember if he ever discussed Curiel’s
immigration status with her. He also did not remember if he
knew whether Curiel was a United States citizen, or if he
recommended that she speak with an immigration attorney
before entering into the plea. His normal practice, however, was
to advise noncitizen clients to consult with immigration counsel.
He sometimes researched the law on immigration consequences,
and he had attended seminars on the subject, but he could not
recall if he did so before 2008.
Naderi did not remember how much Curiel had to pay in
restitution as part of her plea agreement. He currently was
aware that an aggravated felony under federal immigration law
includes an offense involving fraud or deceit in which the loss to
the victim exceeds $10,000. He did not recall if he was aware of
this definition of an aggravated felony at the time of Curiel’s plea.
9
He also did not recall if he attempted to negotiate a lesser
amount of restitution in this case.
On cross-examination, Naderi agreed that restitution was a
constitutional and statutory right that could not be bargained
away, and that negotiating a lesser amount of restitution than
the actual loss would have been “illegal.” Naderi also agreed that
various offenses including auto theft, identity theft, forgery, and
fraud were crimes of moral turpitude. He was not aware of any
crime not involving moral turpitude that would cover the facts of
this case. Naderi confirmed that he signed the attorney
acknowledgment in Curiel’s Tahl waiver. He further testified
that he would not sign a plea form, or allow an interpreter to sign
such a form, if the facts stated in the acknowledgments were not
true. He also would not allow a defendant to initial the box on
the form pertaining to the immigration consequences of a plea if
he had not reviewed that paragraph with the defendant. Naderi
could not recall whether the prosecutor’s original plea offer
required jail time for Curiel. He agreed, however, that the
negotiated plea was a fair disposition given that Curiel was the
primary caregiver for her children. Naderi believed that he had
no legal defense to the charges, and that Curiel would have faced
the same immigration consequences if she were convicted at a
trial.
On redirect, Naderi admitted that he did not know if he
could have negotiated a plea for Curiel in which the amount of
restitution was divided among the charges to which she was
pleading so that no single count would require a restitution
payment above $10,000. He also conceded that Curiel could have
paid a portion of the restitution prior to entering her plea so that
the amount owed at the time of the plea would not have exceeded
10
$10,000. In other cases, Naderi’s clients sometimes paid
restitution before entering their pleas if the prosecutor agreed to
those terms. Although Naderi had asked the prosecutor in
Curiel’s case to agree to a plea that did not include jail time, he
could not recall if he attempted to negotiate the terms of
restitution.
Naderi testified that he did not sign the declaration sent to
him by Curiel’s immigration attorney because it was inaccurate
and would have been a fraud on the court for him to sign it.
When asked if he thought that staying out of jail would shield a
noncitizen defendant from immigration consequences, Naderi
answered: “I think it’s different now. But years ago, if someone
did not have their paperwork in order, [Immigration and
Customs Enforcement (ICE)] would place holds on them, and ICE
would pick them up from these local facilities and then deport
them.” Naderi did not know if avoiding jail time could have kept
Curiel free of immigration consequences, but stated that “if she’s
not in jail, ICE could not put a hold on her.” Naderi admitted
that it was possible he told Curiel that if she avoided jail, it was
less likely there would be adverse immigration consequences,
such as deportation, inadmissibility for entry, and denial of
amnesty, but he could not recall their exact conversation.
At the hearing, Curiel also testified on her own behalf.
According to her testimony, she was born in Mexico and had been
living in the United States for the past 32 years since she was
about 14 years old. Curiel has six children, all of whom are
United States citizens and were born prior to her arrest. Curiel’s
mother is a lawful permanent resident and her five siblings
legally reside in the United States. Curiel’s husband,
11
Desantiago, was also a lawful permanent resident, and he filed
an immigration petition on her behalf before he died.
Curiel hired Naderi to represent her in her criminal case.
She met with him in his office about two times. Because Curiel
spoke little English and Naderi did not speak Spanish, Naderi’s
secretary served as a translator, but she did not speak Spanish
well. Before entering her plea, Curiel told Naderi that she was
not a United States citizen, and that she was concerned about the
immigration consequences of the plea. In response, Naderi told
Curiel “not to worry about going to jail because that was the only
way [she] would have contact with immigration.” Naderi never
informed Curiel that she might not be able to gain lawful status
in the future regardless of whether she served jail time, nor did
he advise her to consult with an immigration attorney. Curiel
believed that if she stayed out of jail, she could avoid any
immigration consequences.
Curiel agreed to the no contest plea based on Naderi’s
recommendation. At the time she entered the plea, she knew she
would not be serving any jail time under the terms of the
agreement. In connection with her plea, Curiel initialed and
signed the Tahl waiver, including placing her initials next to the
paragraph pertaining to the immigration consequences of the
plea. At that time, Curiel did not think this paragraph applied to
her “because she was not going to jail,” and Naderi never told her
otherwise.
Naderi later advised Curiel that he could arrange for her
conviction to be expunged, and that she would then be able to
apply for lawful residence. Curiel hired Naderi to file the
necessary paperwork. It was not until Curiel consulted with her
current immigration counsel about applying for lawful
12
permanent residence that she learned her plea precluded her
from gaining lawful status.
At the time of her plea, Curiel wanted to stay out of jail
because she had six-month-old twins that she could not leave
alone. However, if Curiel had been able to obtain a plea that
would allow her to gain lawful status in the future, she would
have been willing to serve jail time. Curiel did not know at the
time of her plea that her convictions would make her ineligible to
become a lawful resident for the rest of her life, and if she had
such knowledge, she would have done whatever she could to
preserve her eligibility in the future.
On cross-examination, Curiel confirmed that avoiding jail
was important to her at the time of her plea because she was the
primary caregiver for her young children. She stated that she
hired an attorney so that she could avoid jail time, but she would
have been willing to go jail “if it was to clean up [her] record.”
Curiel also admitted that, at the time of her plea, she was “told
the exact immigration consequences” in the form that she
initialed and signed, and that the court also “told [her] on the
record specifically [she] will be deported.” When asked why she
would state in a sworn declaration that she was never told the
immigration consequences of her plea when the record showed
that she had been given both written and oral advisements,
Curiel testified, “Because from the very beginning I trusted in
what my attorney had told me, and he never told me that I was
going to have immigration consequences. He never indicated
that I should consult an immigration attorney.” Curiel denied
that she had lied in her declaration. She stated that the fact that
she went back to Naderi years later “so that he could take care of
fixing [her] record” substantiated her claim that she did not
13
understand the immigration consequences of her plea. Curiel
acknowledged that she had not been deported to date, nor had
she been notified by any federal agency that she was about to be
deported. At the conclusion of the testimony, the parties
stipulated that Curiel had not had any contact from immigration
authorities concerning deportation.
After hearing the argument of counsel, the trial court
denied Curiel’s motion. In issuing its ruling, the court stated:
“The court is sympathetic to the position she finds herself in.
However, the fact remains that every single piece of
contemporaneous evidence shows that she was fully advised, fully
accepted the consequences, indicated the consequences were
explained to her, indicated that she understood she would be
deported. She initialed the box saying she would be deported in
the Tahl waiver and also signed the form saying ‘My initials
mean that I have read, understand, and agree with what is
stated,’ namely, that she is going to be deported. [¶] The court
advised her in addition to the Tahl waiver. During the plea she
acknowledged Mr. Naderi had explained the consequences of her
plea. She said she understood she would be deported. [¶] There
was no prejudicial error, and I think the statements today are
self-serving and not credible. And the court is also troubled, in
evaluating her credibility, that she would so freely submit a
declaration under penalty of perjury saying she was never
informed of the immigration consequences and signs that
declaration under penalty of perjury when the record is so
abundantly clear that that is a false statement in her very own
declaration. [¶] So I do think the case was handled properly. She
was advised multiple times. She acknowledged she was advised.
There was no prejudicial error. She fully understood the nature
14
of the plea as well as the consequences and immigration
consequences, more specifically. [¶] So I do not believe the
defense has met their burden, and for that reason the motion is
denied.”
Curiel filed a timely appeal.
DISCUSSION
On appeal, Curiel contends the trial court erred in denying
her section 1473.7 motion. She argues the motion should have
been granted because she met her burden of establishing that she
did not meaningfully understand the immigration consequences
of her plea, and that there is a reasonable probability she would
not have accepted the plea if she had understood its immigration
consequences. Based on our independent review of the record, we
conclude that Curiel is entitled to relief under section 1473.7.
I. Governing Law
Section 1473.7 allows noncitizens who are no longer in
criminal custody to move to vacate a conviction if they can
establish, by a preponderance of the evidence, that the conviction
is “legally invalid due to prejudicial error damaging the moving
party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences of a conviction or sentence.” (§ 1473.7, subd. (a)(1).)
“A finding of legal invalidity may, but need not, include a finding
of ineffective assistance of counsel.” (Ibid.)
To prevail on a motion under section 1473.7, a defendant
must satisfy two elements. “The defendant must first show that
he did not meaningfully understand the immigration
consequences of his plea. Next, the defendant must show that his
misunderstanding constituted prejudicial error.” (People v.
Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).) “[P]rejudicial
15
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.” (People v. Vivar (2021) 11 Cal.5th 510, 529
(Vivar).) If the defendant meets his burden of establishing
prejudicial error, the court must grant the motion and allow the
defendant to withdraw the plea. (Id. at p. 523.)
We apply an independent standard of review to evaluate
whether a defendant is entitled to relief under section 1473.7.
(Espinoza, supra, 14 Cal.5th at p. 319; Vivar, supra, 11 Cal.5th at
p. 527.) Under this standard, “ ‘an appellate court exercises its
independent judgment to determine whether the facts satisfy the
rule of law.’ ” (Vivar, at p. 527.) The appellate court must give
deference to the trial court’s factual findings if they are based on
“ ‘ “the credibility of witnesses the [superior court] heard and
observed.” ’ ” (Ibid.) However, “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.) In cases where the trial
court’s factual findings “derive entirely from written declarations
and other documents,” the trial court and the reviewing court
“ ‘are in the same position,’ ” and no deference is owed. (Id. at
p. 528.) Accordingly, in determining whether the trial court erred
in denying a motion to vacate a conviction, “it is for the appellate
court to decide, based on its independent judgment, whether the
facts establish prejudice under section 1473.7.” (Ibid.)
II. Immigration Consequences of Curiel’s Plea
Under the terms of her 2008 plea agreement, Curiel
pleaded no contest to one count of identity theft (§ 530.5,
subd. (a)), one count of making a false financial statement
16
(§ 532a, subd. (1)), and one count of grand theft auto (§ 487,
subd. (d)(1)). Her sentence of three years of probation and
45 days of community service was contingent upon making full
restitution to Vic’s Motors in the amount of $11,396. The
restitution amount reflected the value of the two vehicles that
Curiel and her husband purchased from Vic’s Motors using
unlawfully obtained personal identifying information.
The parties do not dispute that, under federal immigration
law, Curiel’s convictions for identity theft and making a false
financial statement constitute aggravated felonies regardless of
the length of the sentence because they involve crimes of fraud or
deceit coupled with a loss to the victim of more than $10,000.
(8 U.S.C. § 1101(a)(43)(M)(i); see Kawashima v. Holder (2012)
565 U.S. 478, 484 [“[a]nyone who is convicted of an offense that
‘involves fraud or deceit in which the loss to the victim or victims
exceeds $10,000’ has committed an aggravated felony”].) The
parties also do not dispute that Curiel’s convictions for making a
false financial statement and grand theft auto qualify as crimes
of moral turpitude under federal immigration law. (8 U.S.C.
§ 1182(a)(2)(A)(i)(I); see Tijani v. Holder (9th Cir. 2010) 628 F.3d
1071, 1075–1076 [making a false financial statement is a crime of
moral turpitude]; Rashtabadi v. INS (9th Cir. 1994) 23 F.3d 1562,
1568 [grand theft is a crime of moral turpitude].)
When committed by a noncitizen, both types of criminal
offenses—aggravated felonies and crimes of moral turpitude—
carry adverse immigration consequences. A noncitizen who is
convicted of an aggravated felony is subject to mandatory
deportation and permanent exclusion from the United States.
(8 U.S.C. §§ 1227(a)(2)(A)(iii), 1228(c); Moncrieffe v. Holder (2013)
569 U.S. 184, 187–188.) An aggravated felony conviction also
17
renders a noncitizen ineligible for certain types of discretionary
relief from deportation, such as asylum and cancellation of
removal. (8 U.S.C. § 1229b(a)(3), (b)(1)(C); Moncrieffe, at p. 187.)
In addition, a noncitizen without lawful status who is convicted of
a crime of moral turpitude is ineligible for admission to the
United States as well as cancellation of removal. (8 U.S.C.
§§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C); Pereida v. Wilkinson (2021)
___U.S.___ [141 S.Ct. 754, 760–761].) Therefore, even though
Curiel had no contact with immigration authorities when she
sought relief under section 1473.7, each of the offenses to which
she pleaded no contest left her subject to potential adverse
immigration consequences in the future.
III. Curiel Showed She Did Not Meaningfully Understand
the Immigration Consequences of Her Plea
In moving to vacate her convictions under section 1473.7,
Curiel argued that she did not meaningfully understand the
adverse immigration consequences of her plea because her
defense counsel, Naderi, failed to properly advise her of those
consequences. In particular, Naderi never told Curiel that the
offenses to which she was pleading no contest would subject her
to deportation regardless of whether she served any jail time. He
also did not explain to Curiel that the convictions would render
her ineligible to seek relief from deportation or to gain lawful
status in the future. As evidentiary support for her motion,
Curiel relied on her written declaration, her oral testimony at the
hearing on her motion, and the oral testimony of Naderi.
In denying the motion, the trial court found that both the
written advisements in Curiel’s signed Tahl waiver and the oral
advisements given by the court at the plea hearing showed that
Curiel fully understood the immigration consequences of her
18
plea, “namely, that she is going to be deported.” The court also
found that Curiel’s “statements today are self-serving and not
credible.” The court indicated that it was particularly “troubled”
by the statement in Curiel’s declaration that she was never
informed of the immigration consequences, and found that
statement was “false” because it contradicted the advisements
that Curiel indisputably received at the time of the plea. Because
the trial court held an evidentiary hearing on Curiel’s motion, we
accord deference to the credibility findings made by the court
based on the testimony given at that hearing. (Vivar, supra,
11 Cal.5th at p. 527.) Nevertheless, we reach a different
conclusion from the trial court based on our independent
examination of the evidence. (Ibid.)
It is undisputed that, both in the written Tahl waiver that
Curiel signed and in her plea colloquy with the court, she was
advised that if she was not a United States citizen, she “must
expect” that her plea “will result” in her “deportation, exclusion
from admission or reentry to the United States, and denial of
naturalization and amnesty.” However, as this court explained
in considering a Tahl waiver with similar mandatory deportation
language, the fact that the defendant initialed and signed the
waiver “did not absolve defense counsel of the duty to advise of
immigration consequences.” (People v. Manzanilla (2022)
80 Cal.App.5th 891, 906 (Manzanilla).) “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.”
(Ibid.; accord, People v. Lopez (2021) 66 Cal.App.5th 561, 577
[“ ‘Although the Tahl form contains the word “will” and not
“may,” it . . . “is not designed, nor does it operate, as a substitute
for such advice” of defense counsel regarding the applicable
19
immigration consequences in a given case’ ”].) Likewise, a trial
court’s “ ‘generic advisement’ ” to a defendant that deportation
“ ‘will result’ ” is not a substitute for counsel’s advice. (Lopez, at
p. 577.) “A proper advisement by the court does not foreclose the
possibility of relief when counsel provides inaccurate or
incomplete advice regarding immigration consequences.” (Id. at
p. 578.) Thus, in evaluating whether the defendant is entitled to
relief under section 1473.7, “ ‘ “ ‘ “[t]he defendant can be expected
to rely on counsel’s independent evaluation of the charges” ’ ” ’
rather than the generic statements in the Tahl waiver and plea
colloquy.” (Manzanilla, at p. 906.)
Here, the fact that the Tahl waiver and the court’s colloquy
advised Curiel that she “must expect” her plea “will result” in
deportation did not preclude her from demonstrating that she did
not meaningfully understand the immigration consequences of
her plea. (See Manzanilla, supra, 80 Cal.App.5th at pp. 899, 910
[rejecting claim that defendant’s signature on Tahl waiver that
stated “ ‘I must expect my plea . . . will result in my deportation’ ”
showed he subjectively understood he would be deported]; People
v. Rodriguez (2021) 60 Cal.App.5th 995, 1003–1004 [defendant
did not meaningfully understand immigration consequences
despite signing form that stated “ ‘this plea . . . will result in my
removal/deportation’ ”]; People v. Camacho (2019) 32 Cal.App.5th
998, 1011, fn. 8 [even though defendant “was advised that his
plea ‘will result’ . . . in adverse immigration consequences,” he
presented sufficient evidence of his lack of understanding to
warrant section 1473.7 relief].) “Rather, the inquiry under
section 1473.7 requires consideration of the ‘totality of the
circumstances,’ which necessarily involves case-by-case
examination of the record [citation], and no specific kind of
20
evidence is a prerequisite to relief.” (Espinoza, supra, 14 Cal.5th
at p. 325.) Moreover, in deciding whether the defendant has
shown error, the focus of our inquiry is on the defendant’s own
error in misunderstanding the immigration consequences of the
plea. (People v. Alatorre (2021) 70 Cal.App.5th 747, 769 [“the
‘error’ is that the petitioner subjectively misunderstood the
immigration consequences of the plea”]; People v. Mejia (2019)
36 Cal.App.5th 859, 871 [“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’ ”].)
Even deferring to the trial court’s credibility findings at the
evidentiary hearing and disregarding Curiel’s oral testimony
about whether she was advised of the immigration consequences
of her plea, the remaining evidence was sufficient to show that
Curiel did not meaningfully understand those consequences at
the time of the plea. In her written declaration, which we
independently review, Curiel stated that she told Naderi at their
first meeting that she did not have legal status in the United
States, and in response, Naderi said that “he would do what he
could to avoid jail time.” Curiel also stated that both she and her
husband were assured by their defense attorneys that “these
were good plea bargains,” which they should accept. Neither
Curiel nor her husband “were told what the immigration
consequences associated with [their] guilty pleas would be,” and
as a result, they “presumed” there were not any immigration
consequences and they “were only looking at the possibility of jail
time.” It was not until her husband applied for citizenship so
that Curiel could gain lawful status that they learned from
immigration counsel that they pleaded to aggravated felonies and
were subject to deportation.
21
In his testimony at the hearing, Naderi could not recall if
he knew whether Curiel was a United States citizen, or if he
discussed her immigration status with her. He also could not
recall if he advised her to consult with an immigration attorney.
With respect to Curiel’s plea agreement, Naderi could not recall if
he made any effort to negotiate the terms of restitution as part of
the plea, or if he even knew at the time that a crime involving
fraud or deceit where the victim’s loss exceeds $10,000
constituted an aggravated felony under federal immigration law.
While Naderi was unable to recall any details of his
conversations with Curiel, he testified that his understanding of
the law in 2008 was that, when undocumented immigrants went
to jail, ICE would place a hold on them and then deport them.
He further admitted that he may have told Curiel that if she
avoided jail, she would have fewer chances of facing adverse
immigration consequences such as deportation, exclusion, and
denial of amnesty.
Naderi’s testimony thus corroborated the statements in
Curiel’s declaration that the only advice she received from her
defense attorney about how the criminal charges might impact
her immigration status related to avoiding jail time. While
Naderi’s advice may have been technically correct in that Curiel
was less likely to have contact with immigration authorities if
she remained out of jail, it was inadequate and incomplete.
It omitted any explanation of the fact that Curiel’s plea would
subject her to mandatory removal and exclusion from reentry,
and effectively bar her from gaining lawful status in the future.
Naderi’s failure to give accurate and complete advice about the
specific consequences of the plea agreement helps explain why
Curiel mistakenly believed that, because her plea did not include
22
a jail sentence, it did not carry a risk of any adverse immigration
consequences. (See People v. Camacho, supra, 32 Cal.App.5th at
p. 1009 [defendant’s “own error in believing that a . . . plea calling
for no time in custody would avoid making him deportable” was
supported by attorney’s testimony that “he told defendant only
that the charge could subject him to deportation and that ‘we’re
going to get it . . . expunged early and maybe that will help’ ”].)
Curiel’s subjective misunderstanding of the immigration
consequences of her plea is further corroborated by the fact that,
about 10 years after she and her husband entered into the pleas,
they retained their former defense attorneys to help them get
their convictions expunged so that Desantiago could apply for
citizenship and petition for Curiel to become a lawful resident.
They did not learn that the expungements had no effect on the
immigration consequences of their pleas until sometime after
Desantiago submitted an application for naturalization to the
federal government, which he then had to withdraw due to the
disqualifying nature of the convictions. (See Ramirez-Castro v.
INS (9th Cir. 2002) 287 F.3d 1172, 1175 [a conviction expunged
under section 1203.4 remains a conviction for purposes of federal
law].) The couple’s postplea conduct in seeking citizenship for
Desantiago and lawful residence status for Curiel was not
consistent with that of individuals who understood that their
convictions made them presumptively deportable and ineligible
for reentry into the United States. (See Espinoza, supra,
14 Cal.5th at p. 320 [defendant “took an international commercial
flight to the United States, which predictably required subjecting
himself to the scrutiny of United States immigration officials,
which is not consistent with the behavior of a person who
understood that his convictions effectively ended his lawful
23
resident status”]; People v. Alatorre, supra, 70 Cal.App.5th at
p. 770 [“[i]t goes without saying that someone who understood his
criminal conviction made him automatically deportable would not
voluntarily contact immigration authorities and advise them of
his presence”].)
In sum, based on the totality of the record, Curiel met her
burden of establishing that she did not meaningfully understand
the consequences of her plea at the time she entered into it.
IV. Curiel Showed Her Misunderstanding Constituted
Prejudicial Error
To establish prejudicial error under section 1473.7,
“a defendant must demonstrate a ‘reasonable probability that
[he or she] would have rejected the plea if the defendant had
correctly understood its actual or potential immigration
consequences.’ ” (Espinoza, supra, 14 Cal.5th at p. 316.)
In determining whether there is a reasonably probability the
defendant would have rejected the plea, courts must “consider the
totality of the circumstances.” (Vivar, supra, 11 Cal.5th at
p. 529.) “Factors particularly relevant to this inquiry include the
defendant’s ties to the United States, the importance the
defendant placed on avoiding deportation, the defendant’s
priorities in seeking a plea bargain, and whether the defendant
had reason to believe an immigration-neutral negotiated
disposition was possible.” (Id. at pp. 529–530.) “These factors
are not exhaustive, and no single type of evidence is a
prerequisite to relief.” (Espinoza, at p. 321.)
“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.)
It is not enough for the defendant simply to declare that he or she
24
would not have accepted a plea that would result in deportation.
(Vivar, supra, 11 Cal.5th at p. 529.) Rather, the defendant must
“corroborate such assertions with ‘objective evidence.’ ” (Id. at
p. 530.) “Objective evidence includes facts provided by
declarations, contemporaneous documentation of the defendant’s
immigration concerns or interactions with counsel, and evidence
of the charges the defendant faced.” (Espinoza, supra, 14 Cal.5th
at p. 321.)
Considering the totality of the circumstances in this case,
we conclude that Curiel made a showing of prejudice. It is
undisputed that Curiel has deep and long-standing ties to the
United States. She immigrated to the country when she was
14 years old, and at the time of her plea, she had been living here
for almost 20 years. Prior to his death, her husband was a lawful
permanent resident. Each of their six children is a United States
citizen and was born before Curiel entered into the plea. In
addition, Curiel’s mother and five siblings are all lawful residents
of the United States. As our Supreme Court explained, “[t]ies to
the United States are an important factor in evaluating
prejudicial error under section 1473.7 because they shed light on
a defendant’s immigration priorities.” (Espinoza, supra, 14
Cal.5th at p. 321; see, e.g., People v. Villalba (2023) 89
Cal.App.5th 659, 674 [finding prejudice where defendant came to
the United States as a child, met and married his wife here, and
raised six children, all United States citizens]; People v. Soto,
supra, 79 Cal.App.5th at p. 611 [finding prejudice where
defendant lived in the United States since he was a teenager in
the late 1980’s and his children and family lived here]; People v.
Mejia, supra, 36 Cal.App.5th at p. 872 [finding prejudice where
defendant had been living in the United States since he was
25
14 years old, and his wife and infant son lived here, as well as his
mother and six siblings].)
The record also reflects that Curiel’s primary consideration
in seeking a plea bargain was to ensure that she was available to
care for her six children, including her then six-month-old twins.
As Curiel testified at the evidentiary hearing on her motion, “My
children are the most important thing to me.” In opposing the
motion, the People argued that, because Curiel was the primary
caregiver for her children, her priority in accepting the plea was
to avoid jail time rather than any immigration consequences.
It does not make sense, however, that Curiel would have agreed
to a plea deal that kept her out of jail so that she could remain
her children’s caregiver, but placed her at risk of mandatory
deportation and thus permanent separation from her children,
who resided in the United States. Rather, it is reasonable to
infer that Curiel’s paramount concern in seeking a plea was to
remain in the United States where she could continue raising her
children, including her infant twins. (See People v. Rodriguez
(2021) 68 Cal.App.5th 301, 326 [defendant’s prompt acceptance of
a plea deal that allowed her to return to her family, including her
two small children, indicated that “she would have done all she
could to avoid pleading no contest to a charge that would lead to
her mandatory deportation and separation from her family for
the rest of her life”].)
The evidence also showed that Curiel had no prior criminal
record at the time of her plea. As our Supreme Court recognized,
“[t]his fact is relevant because a defendant without an extensive
criminal record may persuasively contend that the prosecutor
might have been willing to offer an alternative plea without
immigration consequences.” (Espinoza, supra, 14 Cal.5th at
26
p. 324.) At the hearing on the motion, Curiel’s immigration
counsel argued that there were alternative pleas that would not
have carried the same adverse immigration consequences, while
leaving intact the bargained-for sentence of probation,
community service, and restitution. Curiel details these
alternative plea arrangements in her briefing on appeal.
For instance, with respect to the aggravated felonies,
Curiel asserts that Naderi could have proposed a plea deal that
explicitly tied the restitution owed on the two cars to the two
grand theft auto counts by assigning the value of each car to its
respective count, and requiring Curiel to enter into a Harvey
waiver so that any dismissed counts could be considered for
purposes of restitution. (People v. Harvey (1979) 25 Cal.3d 754.)
Under this scenario, Curiel still would have been liable for full
restitution, but the amount owed as to any single count would
have been less than $10,000, the threshold figure for an
aggravated felony. With respect to the crimes of moral turpitude,
Curiel contends that Naderi could have sought a plea deal that
required her to plead no contest to the two counts of identity
theft, which is not a categorical crime involving moral turpitude
under federal immigration law. (See Linares-Gonzalez v. Lynch
(9th Cir. 2016) 823 F.3d 508, 518–519.) Naderi also could have
tried to negotiate a plea to other factually related, uncharged
offenses that are not considered crimes of moral turpitude for
purposes of federal immigration law, such as second degree
commercial burglary (§ 459). (See Lara-Garcia v. Garland
(9th Cir. 2022) 49 F.4th 1271, 1281.)
The People argue that the record fails to demonstrate that
any of these proposed plea deals would have been offered by the
prosecutor or accepted by the court. The People also assert that
27
there is nothing in the record to show that Curiel had a viable
defense to the charges, or any reason to believe she could have
received a better resolution if convicted after a trial. In assessing
prejudice, however, the focus is on “ ‘what the defendant would
have done, not whether the defendant’s decision would have led
to a more favorable result.’ ” (Vivar, supra, 11 Cal.5th at
pp. 528–529.) “A decision to reject a plea bargain . . . ‘might be
based either on the desire to go to trial or on the hope or
expectation of negotiating a different bargain without
immigration consequences.’ [Citation.] When a court weighs
whether a defendant would have taken the latter path, it need
not decide whether the prosecution would actually ‘have offered a
different bargain’—rather, the court should consider ‘evidence
that would have caused the defendant to expect or hope a
different bargain would or could have been negotiated.’ ” (Id. at
p. 529.)
On this record, we conclude there is at least a reasonable
probability that Curiel “could have tried ‘to obtain a better
bargain that [did] not include immigration consequences.’ ”
(Vivar, supra, 11 Cal.5th at p 531.) Curiel’s deep ties to the
United States, her lack of a criminal record, her undisputed role
as the primary caregiver for her children, and the possibility of a
plea bargain with less severe immigration consequences provide
sufficient corroboration for her claim that she would have
rejected the plea if she had meaningfully understood its adverse
immigration consequences. Because Curiel met her burden of
demonstrating prejudicial error, she is entitled to relief under
section 1473.7.
28
DISPOSITION
The order denying Curiel’s motion to withdraw her plea
and vacate her convictions under section 1473.7 is reversed.
The matter is remanded to the trial court with directions to grant
the motion and vacate the convictions.
VIRAMONTES, J.
We concur:
STRATTON, P. J. WILEY, J.
29