Error and/or relief
The superior court denied the defendant’s motion to vacate his conviction under section 1473.7 because he did not provide a declaration from his defense counsel at the time of his plea or his counsel’s case file, despite the defendant’s diligent efforts in attempting to contact his prior counsel, who had retired since representing him. After independent review, we conclude the defendant met his burden of establishing, by a preponderance of the evidence, error affecting his ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of his plea and reverse the denial of his motion.
First Holding:
Under federal law, a noncitizen convicted of a crime of domestic violence is deportable. This includes an offense under section 273.5(a). A section 273.5 conviction is also a crime of violence under federal immigration law. If a defendant is sentenced to a term of imprisonment of at least 365 days for a crime of violence, the offense qualifies as an aggravated felony conviction. This designation carries even harsher consequences. A noncitizen who is convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory removal. An aggravated felony conviction renders a noncitizen ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Accordingly, removal is a virtual certainty for a noncitizen found to have an aggravated felony conviction, no matter how long he has previously resided here.
Authority:
8 U.S.C. sec. 1227(a)(2)(E)(i)
8 U.S.C. sec 1227(a)(2)(A)(iii)
8 U.S.C. sec. 1228(c)
8 U.S.C. sec.1229b(a)(3), (b)(1)(C)
18 U.S.C. sec. 16(a)
People v. Villalba (2023) 89 Cal.App.5th 659, 666-667
People v. Manzanilla (2022) 80 Cal.App.5th 891, 903-904
Banuelos-Ayon v. Holder (9th Cir. 2010) 611 F.3d 1080, 1083
Second Holding:
Penal Code section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction 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. To establish a prejudicial error under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges.
Authority:
PEN 1473.7
People v. Espinoza (2023) 14 Cal.5th 311, 316
People v. Mejia (2019) 36 Cal.App.5th 859, 862
Third Holding:
The focus of the first prong of the inquiry is on the defendant’s own error in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. There is no additional need to establish the petitioner’s mistake was caused by some third party. A defendant may show, but is not required to show, that he received ineffective assistance of counsel. The error supporting section 1473.7 relief need not be one made by defense counsel or the court but may be one made by the moving party herself if supported by contemporaneous evidence.
Authority:
People v. Mejia (2019) 36 Cal.App.5th 859, 871
People v. Padron (2025) 109 Cal.App.5th 950, 958-959
People v. Lopez (2022) 83 Cal.App.5th 698, 713-714 [At the heart of the prejudicial error analysis is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken]
People v. Alatorre (2021) 70 Cal.App.5th 747, 769
People v. Carrillo (2024) 101 Cal.App.5th 1, 16
People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067
People v. Camacho (2019) 32 Cal.App.5th 998, 1008 [ineffective assistance of counsel not required for relief]
People v. Rodriguez (2021) 68 Cal.App.5th 301, 311
Fourth Holding:
A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel or to submit contemporaneous documentation from the time of the plea. 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, and no specific kind of evidence is a prerequisite to relief. Even a court’s advisement that a guilty plea will result in immigration consequences does not preclude a petitioner from demonstrating that he did not meaningfully understand the immigration consequences of his plea. Depending on the surrounding circumstances, even a warning that deportation will result is not a categorical bar to relief. A general advisement under section 1016.5 does not establish meaningful understanding of immigration consequences.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 320, 325
People v. Curiel (2023) 92 Cal.App.5th 1160, 1175
People v. Lopez (2021) 66 Cal.App.5th 561, 577
People v. Padron (2025) 109 Cal.App.5th 950, 962
People v. Camacho (2019) 32 Cal.App.5th 998, 1011 [petitioner may present sufficient evidence of his lack of understanding such that the court’s advisement cannot be taken as irrebuttable proof that defendant likely would have entered his plea notwithstanding adverse immigration consequences]
Fifth Holding:
As to the prejudice prong, a defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences and must corroborate any assertions with objective evidence. A reasonable probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311,
People v. Vivar (2021) 11 Cal.5th 510, 530
People v. Lopez (2022) 83 Cal.App.5th 698, 714
People v. Padron (2025) 109 Cal.App.5th 950, 959
People v. Soto (2022) 79 Cal.App.5th 602, 610
Sixth Holding:
We independently review the denial of a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. If the superior court heard testimony, we give particular deference to any factual findings based on the trial court’s personal observations of witnesses. But where, as here, the facts derive entirely from written declarations and other documents, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, the trial court and this court are in the same position in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.
Authority:
People v. Vivar (2021) 11 Cal.5th 510, 527-528
People v. Padron (2025) 109 Cal.App.5th 950, 959