Error and/or relief
The trial court erred in denying the defendant’s motion to vacate his guilty plea conviction under section 1473.7, because the defendant demonstrated entitlement to relief.
First Holding:
In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea.
In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the basis that 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. Relief is not contingent upon establishing ineffective assistance of counsel.
Authority:
PEN 1473.7(a)
People v. Vivar (2021) 11 Cal.5th 510, 522-523
People v. Carrillo (2024) 101 Cal.App.5th 1, 12-13
Second Holding:
A defendant must satisfy three statutory requirements to be eligible to seek relief from a legally invalid conviction or sentence under section 1473.7(a)(1). The movant must show he is no longer in criminal custody, and the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The motion must also be timely.
Authority:
PEN 1473.7
People v. Carrillo (2024) 101 Cal.App.5th 1, 13
Third Holding:
To prevail under section 1473.7, a defendant must demonstrate that his conviction is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.
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.
Prejudical 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.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 319
People v. Vivar (2021) 11 Cal.5th 510, 529
Fourth Holding:
We evaluate prejudicial error under the totality of the circumstances.
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.
The defendant’s probability of obtaining a more favorable outcome if he had rejected the plea and the difference between the bargained-for term and the likely term if he were convicted at trial are also relevant.
These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.
A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 320-321
People v. Vivar (2021) 11 Cal.5th 510, 529-530
People v. Martinez (2013) 57 Cal.4th 555, 564
Lee v. United States (2017) 582 U.S. 357, 358
Fifth Holding:
On appeal, we apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences.
We exercise independent judgment to determine whether the facts satisfy the rule of law, and defer to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed.
However, when, as in this case, the trial court’s 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.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 319-320
People v. Vivar (2021) 11 Cal.5th 510, 527-528
Sixth Holding:
The focus of this inquiry is the defendant’s own error. Thus, the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.
The defendant is the only one with direct access to his state of mind, but a defendant’s assertion as to his or her state of mind is not accepted at face value by courts evaluating a section 1473.7 motion. Such assertions must be corroborated with objective evidence.
A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel.
Authority:
People v. Carrillo (2024) 101 Cal.App.5th 1, 16-17
People v. Mejia (2019) 36 Cal.App.5th 859, 871
People v. Alatorre (2021) 70 Cal.App.5th 747, 769
People v. Espinoza (2023) 14 Cal.5th 311, 325
People v. Padron (2025) 109 Cal.App.5th 950, 962
Seventh Holding:
The standard section 1016.5 advisement—given to all criminal defendants in California who plead guilty to any offense other than an infraction—that his or her criminal conviction may have adverse immigration consequences does not bar a defendant from seeking relief from his plea on grounds of mistake or ignorance based on immigration consequences. Thus, the fact the superior court advised defendant pursuant to section 1016.5 does not resolve the matter against defendant.
Authority:
People v. Patterson (2017) 2 Cal.5th 885, 889, 895
People v. Lopez (2021) 66 Cal.App.5th 561, 577-578
People v. Espinoza (2023) 14 Cal.5th 311, 320
People v. Padron (2025) 109 Cal.App.5th 950, 962
Eighth Holding:
Prior to Padilla, there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. Rather, most courts had determined that no such duty existed.
As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.
(Gary note: I think we all know what the court means by “Prior to Padilla, there was no Sixth Amendment obligation ….” But I think a more accurate statement would be something like, “Padilla was the first pronouncement by the United States Supreme Court recognizing that the Sixth Amendment places an obligation on the part of defense counsel to ….” The Sixth Amendment was certainly not amended to add any provision generating a new obligation. The Sixth Amendment has been around for centuries, unchanged. It was only its import that hadn’t been seen in the past, at least by the High Court.
(The court’s phrasing as I’ve set out in the Ninth Holding tracks what I’m saying.
(I mention this because I think sometimes it is important to argue that something is NOT new law, and that it has BEEN the law all along, notwithstanding that it had not previously been understood to be the law. Why is that important? It can make the difference in whether a court recognizes that your client’s rights were violated, even though it was only through a later appellate analysis that the nature of the violation was discovered. We don’t want the court to assume that, because no court had seen it before, your client is not entitled to its benefit.
(There have been decisions, of course, that decline to revisit cases where, had the law been understood at the time, there would have been a different result. But that is generally related to the principle of finality of judgment and the jurisdiction of the court to act on the case. While not directly the same, think of the Estrada presumption of retroactivity of ameliorative changes in the law to those whose judgments are not final, in the absence of clear intent that the change was to be applied prospectively only.
(Just sayin’.
(Of course, with respect to Padilla, the practical effect is that yes, the Sixth Amendment imposes the obligation on the attorney to provide the advice, but the failure to do so prior to Padilla is not tantamount to ineffective assistance of counsel as that principle has been described in the past. As the court in this case said, relying on In re Grinder, “As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.”
(Was there a change in the law? Or simply a change in the understanding of the Sixth Amendment? Of course, the opposition might argue that court pronouncements dictate what is the law, and therefore they represent the law, and thererfore it wasn’t until Padilla that the Sixth Amendment created the obligation. An interesting debate, or not, but for another time.)
Authority:
Padilla v. Kentucky (2010) 559 U.S. 356
Chaidez v. United States (2013) 568 U.S. 342, 353
People v. Carrillo (2024) 101 Cal.App.5th 1, 17
In re Grinder (2025) 114 Cal.App.5th 845, 872
Ninth Holding:
Here, defendant entered his plea 15 years before the United States Supreme Court held in Padilla that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. As such, defendant’s attestation that his attorney did not advise him about the immigration consequences of his plea is consistent with the state of the law at that time.
(Gary note: The appellate court examined and analyzed extensively many facts in the record from which it concluded that, based primarily on the principles I have extracted in this summary, the defendant was entitled to relief because his plea was not entered knowingly and intelligently within the contemplation of section 1473.7. I have omitted those details, some of which included citations to other cases apparently relevant to those details. Since this was an unpublished decision and cannot be cited for comparison, and since this is supposed to be a summary and not a copy of the entire decision, I have to stop about here.)
Authority:
PEN 1016.2
People v. Carrillo (2024) 101 Cal.App.5th 1, 18
People v. Rodriguez (2021) 68 Cal.App.5th 301, 307–312
