Error and/or relief
The trial court erred in denying the defendant’s motion under section 1473.7(a) to withdraw his no contest plea and vacate his conviction because he did not meaningfully understand the immigration-related consequences of his plea and that this was prejudicial
We reverse the order denying the defendant’s section 1473.7 motion. We remand the case to the trial court with directions to grant his motion, vacate his conviction, and permit him to withdraw his plea.
First Holding:
Section 1473.7 permits noncitizens who are no longer in criminal custody to seek vacatur of a conviction or sentence if they can show, by a preponderance of the evidence, the conviction or sentence is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.
A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
To obtain relief under section 1473.7(a)(1), 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.
Prejudicial 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.
If the court finds the defendant has made both of these showings and has established that 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, it must grant the motion and allow the defendant to withdraw the plea.
Authority:
PEN 1473.7
People v. Curiel (2023) 92 Cal.App.5th 1160, 1172
People v. Espinoza (2023) 14 Cal.5th 311, 319
People v. Vivar (2021) 11 Cal.5th 510, 529
Second Holding:
We independently review a defendant’s entitlement to relief under section 1473.7(a)(1). In so doing, we exercise our independent judgment to determine whether the facts satisfy the rule of law.
We defer to the trial court’s factual findings to the extent they turn on the credibility of a witness’s live testimony. But when, as here, 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. Vivar (2021) 11 Cal.5th 510, 524-525, 527, 528
People v. Espinoza (2023) 14 Cal.5th 311, 320
Third Holding:
A defendant establishes prejudice by showing that there is a reasonable probability that the person would not have entered the plea if the defendant had correctly understood its actual or potential immigration consequences and the options for defending against those consequences.
A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.
Because immigration consequences may be more important to a noncitizen defendant than any term of incarceration, the focus of this inquiry is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 626
Fourth Holding:
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.
Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 320-321
Fifth Holding:
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.
(Gary note: The court then dug into the details of this particular case and determined that the defendant demonstrated by the requisite preponderance of evidence that he did not fully understand the immigration consequences because of incorrect advice by his attorney, and that had he been properly informed, there was a reasonable probability that he would not have entered that plea.)
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 321
Sixth Holding:
Whether the defendant could have secured a more favorable deal or prevailed at trial does not conclusively determine whether he established prejudice under section 1473.7. This is so because the focus is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.
Accordingly, our Supreme Court has explained that in evaluating whether a defendant would have rejected a plea on the hope or expectation of negotiating a different bargain without immigration consequences, we need not decide whether the prosecution would actually have offered a different bargain — rather, we should consider evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.
Authority:
People v. Padron (2025) 109 Cal.App.5th 950, 964
People v. Vivar (2021) 11 Cal.5th 510, 528-529
Seventh Holding:
(Gary note: This is not technically a holding or principle, but the Court of Appeal listed several cases where defendants with similar convictions were able to achieve surprisingly lenient, immigration-neutral sentences. I have included them below because they could prove useful comparisons on the the likelihood that a first degree burglary charge may be resolved in an immigration neutral manner.)
Authority:
People v. Kim (2009) 45 Cal.4th 1078, 1085 [Defendant was convicted of first degree burglary, but imposition of sentence was suspended and he was sentenced to five years’ probation on the condition he serve 180 days in jail]
People v. Preston (2015) 239 Cal.App.4th 415, 420 [following defendant’s guilty plea to one count of burglary and one misdemeanor count of false representation of identity to a peace officer, the trial court suspended imposition of sentence and placed defendant on five years’ probation]
People v. Ulloa (2009) 180 Cal.App.4th 601, 603 [defendant convicted of first degree, residential burglary, receiving stolen property, and misdemeanor vandalism sentenced to three years of formal probation and 120 days in jail]
People v. Romero (2002) 99 Cal.App.4th 1418, 1423 [defendant convicted of first degree burglary and, contrary to probation officer’s recommendation of a two-year prison sentence, given 36 months’ probation and 180 days in jail]