Error and/or relief
We reverse and remand for the trial court to enter an order granting the defendant’s application under section 1473.7 because he did not understand the immigration consequences of his pleas.
First Holding:
Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences. In making this determination, we consider the totality of the circumstances. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.
Authority:
PEN 1437.7(a)(1)
People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321
Second Holding:
We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 319-320
Third Holding:
The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute.
Authority:
People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910 [focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion]
Fourth Holding:
There is a critical difference between (1) being notified the plea may have immigration consequences and (2) being told the plea will make one immediately deportable. When counsel provides only the first advisement in a situation calling for the second, the advisement is insufficient.
Authority:
People v. Vivar (2021) 11 Cal.5th 510, 523, 533 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient; advisement that plea might have adverse immigration effects insufficient where deportation would be mandatory]
Fifth Holding:
At the time of the plea in 1996, the defendant’s counsel did not have a duty to discuss mandatory immigration consequences as they would now. That duty arose only with the decision in Padilla. When counsel had no professional obligation, we cannot infer that counsel in 1996 told the defendant of the mandatory immigration consequences. The lack of any proper advisement in the record corroborates the defendant’s claim.
Authority:
Padilla v. Kentucky (2010) 559 U.S. 356
People v. Manzanilla (2022) 80 Cal.App.5th 891, 905-906 [where immigration consequences clear and virtually certain, after 2010 counsel now must advise client of those consequences]
People v. Bravo (2021) 69 Cal.App.5th 1063, 1073-1074 [advisement given in 1997 insufficient to satisfy section 1473.7]
Sixth Holding:
The defendant’s ties to the United States are sufficient evidence that the defendant would have focused on mandatory immigration consequences.
Authority:
People v. Alatorre (2021) 70 Cal.App.5th 747, 771 [deep ties to the United States constitute contemporaneous evidence that avoiding deportation would have been a primary concern]
Seventh Holding:
Where a noncitizen is no longer in custody and triggering events in the statute have not occurred, the motion is timely.
Authority:
People v. Perez (2021) 67 Cal.App.5th 1008, 1016