Error and/or relief
This is an appeal from a denial of a motion under section 1473.7 to vacate the defendant’s conviction because he did not adequately understand the immigration consequences of his plea more than 15 years ago. As neither the court nor the defendant had the benefit of Hernandez when the court ruled on the motion, we remand for the court to hold a proper hearing.
First Holding:
The defendant pleaded no contest to petty theft with prior convictions in violation of section 666. A conviction under section 666 is a crime involving moral turpitude, which is a ground of deportability and inadmissibility. The conviction also renders a noncitizen ineligible to apply for permanent residency, despite his strong ties to U.S. citizens. A crime involving moral turpitude is also a ground of mandatory immigration detention.
Authority:
8 U.S.C. sec. 1227(a)(2)(i)(I)
8 U.S.C. sec. 1182(a)(2)(A)(i)(I)
8 U.S.C. sec. 1255(a)
8 U.S.C. sec. 1226(c)(l)(A)
Second Holding:
Section 1473.7 allows a person who is no longer in criminal custody to file a motion to vacate a conviction or sentence. To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence and (2) that the damage resulted in prejudice.
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 613
Third Holding:
On appeal from a denial of a motion under section 1473.7, we independently review the evidence in the record. When the trial court’s findings are based on written materials rather than the court’s observations of the defendant, we do not defer to those findings because we are similarly situated to the trial court when interpreting a cold record.
We may reach a different conclusion from the trial court on an independent examination of the evidence even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 613
Fourth Holding:
Hernandez has clarified the analysis courts must apply when evaluating whether there was error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. In determining whether a defendant has established error for purposes of section 1473.7(a)(1), we focus on the defendant’s subjective understanding at the time they entered their guilty plea. The key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.
Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry. Courts must engage in a case-specific examination that involves assessing credibility and weighing circumstantial evidence.
The most direct evidence of a defendant’s subjective understanding consists of the defendant’s own statements to the court when entering the plea and in declarations or testimony given in support of their section 1473.7(a)(1) motion. However, while the focus of the error inquiry is on the defendant’s subjective understanding, a defendant’s bare assertion that they did not understand the immigration consequences or the options available to them to defend against those consequences is insufficient to establish error; the assertion must be corroborated by objective evidence.
(Gary note: The opinion goes on to cite several examples contained in the Hernandez opinion that may corroborate the defendant’s assertions. If you have such a case, Hernandez is a must-read.)
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 614-617