Error and/or relief
In light of Hernandez, decided after the lower court’s denial of the defendant’s motion to vacate her conviction under section 1473.7, the order denying the defendant’s section 1473.7(a)(1) motion is reversed. The matter is remanded to the trial court with directions to allow the parties to present additional evidence and to rehear the motion in light of that additional evidence, Hernandez, and other applicable law at the time of rehearing.
First Holding:
Under federal immigration law, grand theft auto is a crime of moral turpitude. A noncitizen without lawful status who is convicted of a crime of moral turpitude is ineligible for admission to the United States as well as cancellation of removal.
Authority:
People v. Curiel (2023) 92 Cal.App.5th 1160, 1173
U.S. v. Esparza-Ponce (9th Cir. 1999) 193 F.3d 1133, 1136-1137
Second Holding:
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
Error may take the form of the defendant’s lack of a meaningful understanding of the actual or potential adverse immigration consequences of their plea; the defendant’s subjective misunderstanding or ignorance that damaged their ability to defend against these consequences; or the defendant’s failure to knowingly accept these consequences.
A defendant establishes prejudice by showing that there is a reasonable probability that they would not have entered the plea if they had correctly understood its actual or potential immigration consequences and their options for defending against those consequences.
Authority:
PEN 1473.7
People v. Hernandez (2026) 20 Cal.5th 598, 613, 621 fn. 4, 626
Third Holding:
Because the burden is on the defendant to establish error and because courts must consider the totality of the circumstances in determining whether the defendant has satisfied this burden, it will generally be in a defendant’s interest to create a robust record. However, no specific kind of evidence is a prerequisite to relief.
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 618
People v. Espinoza (2023) 14 Cal.5th 311,] 325 [The more robust and inclusive a record, the greater the opportunity for effective persuasion and meaningful judicial review]
Fourth Holding:
In reviewing a trial court’s denial of a section 1473.7(a)(1) motion, we independently review the evidence in the record. We do not defer to those findings by the trial court that are based on written materials, since we are similarly situated to the trial court when interpreting a cold record. And 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.
Ultimately, it is for us to decide, exercising our independent judgment, whether the evidence, taken as a whole, establishes prejudicial error damaging the defendant’s ability to meaningfully understand the immigration consequences of the charges to which the defendant pled, or the defendant’s ability to defend against those consequences or to knowingly accept them.
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 613
Fifth Holding:
Hernandez laid out several principles to guide trial courts in their conclusion whether a defendant has established error.
(Gary note: The opinion lays out several passages from Hernandez, describing approaches a defendant might take. Rather than reproducing the nearly thousand words quoted from Hernandez, I have decided to simply suggest you read Hernandez itself. But while every word is certainly important, I have chosen to include a bit on the recognition that the focus is on the defendant’s subjective understanding. This is a tad different from tests that compare a defendant’s actions to the amorphous objective “reasonable person” standard. However, the subjective understanding must be corroborated by objective evidence.)
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. 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.
Authority:
People v. Hernandez (2026) 20 Cal.5th 598, 615, 621, fn. 4 [The error determination turns on the defendant’s state of mind as established by the defendant’s testimony about their subjective understanding and corroborated by objective evidence.]
Sixth Holding:
Section 1260, by its terms, confers authority on appellate courts to remand the cause to the trial court for such further proceedings as may be just under the circumstances. It is familiar appellate practice to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied. Such a remand may be made to permit further evidence to be taken.
Hernandez stated that remand to the trial court for further development of the record will be appropriate in many appeals from denials of section 1473.7(a)(1) motions that were pending when the Supreme Court issued its decision. We conclude this is one of those appeals.
Authority:
PEN 1260
CCP 906
People v. Wilson (2024) 16 Cal.5th 874, 948
Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 931