Error and/or relief
The defendant entered the United States in 1991 and obtained permanent residency in the mid-2000s. She was convicted by plea in 2009 of grand theft and was ordered to serve one year in the county jail as a condition of probation. At the time of her plea, she was advised under section 1016.5 that conviction may have the consequences of deportation, exclusion of admission to the United States, or denial of naturalization. There was no indication that her then-attorney discussed immigration consequences with her. She was not aware that a jail term of 364 days instead of 365 days would have made a difference regarding her immigration status.
Because service of at least 365 days in custody constitutes an aggravated felony, in 2010 she was notified by immigration authorities that she was subject to removal. She conceded removability and was deported. In 2023, someone she had kept in contact with over the years suggested she contact the public defender. She did, and a petition to vacate her conviction was filed under section 1473.7 Based on our independent review, we conclude the defendant has shown prejudicial error based on the totality of the circumstances. It was error to deny the defendant’s petition under section 1473.7 to vacate her conviction because prejudicial error impaired her ability to understand the immigration consequences of her plea.
First Holding:
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. If the required showings are made, the court must vacate the conviction or sentence.
Authority:
PEN 1473.7(a)(1), (e)(1)
People v. Espinoza (2023) 14 Cal.5th 311, 316
Second Holding:
Appeals from section 1473.7 hearings are subject to independent review. Under this standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. We give deference to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed. But when 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. Espinoza (2023) 14 Cal.5th 311, 319-320
Third Holding:
Subject to statutory exceptions, a motion to vacate based on immigration consequences shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody. The exceptions state the motion may be deemed untimely filed if it was not filed with reasonable diligence after the later of several events: receipt of a notice to appear in immigration court, notice from immigration authorities asserting adverse consequences from the conviction or sentence, or notice of a final removal order.
Authority:
PEN 1473.7(b)(1) and (b)(2)
Fourth Holding:
The statutory exceptions to timeliness do not apply here. Because the defendant was given notice of immigration consequences before the 2017 effective date of section 1473.7, the test is: What event in her life that occurred after section 1473.7 became effective would have given her a reason to look for the existence of new legal grounds for relief or, at a minimum, put her on notice of the need to investigate? We assess the reasonableness of the petitioner’s diligence from that point forward. In so doing, we must take into account the totality of the circumstances. The record does not suggest some event occurred between the time the legislation became effective in 2017 and her contact with her attorney in 2023 that put her on notice. We conclude the motion was timely.
Authority:
People v. Alatorre (2021) 70 Cal.App.5th 747, 762, 765-766
Fifth Holding:
Relief pursuant to section 1473.7 requires that the defendant show prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. Because the defendant’s conviction of theft with a one-year sentence constituted an aggravated felony, she was subject to mandatory deportation and permanent exclusion from the United States and was also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country.
Authority:
8 U.S.C. 1101(a)(43)(G)
8 U.S.C. 1227(a)(2)(A)(iii)
8 U.S.C. 1229b(a)(3), (b)(1)(C)
People v. Carrillo (2024) 101 Cal.App.5th 1, 15
Sixth Holding:
A defendant seeking section 1473.7 relief must demonstrate that the error is prejudicial, meaning a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. This might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences. Relief is available if the defendant establishes he or she would have rejected the existing bargain to accept or attempt to negotiate another.
Authority:
People v. Espinoza (2023) 14 Cal.5th 311, 316
People v. Vivar (2021) 11 Cal.5th 510, 529
People v. Martinez (2013) 57 Cal.4th 555, 559
Seventh Holding:
Her ignorance of the immigration consequences of her conviction and sentence was an error that damaged her ability to meaningfully understand and knowingly accept those consequences. A showing of ineffective assistance of counsel was not required because the motion was based on the inadequate advisement by the trial court that the conviction may have immigration consequences and the defendant’s own error in not knowing that her plea would subject her to mandatory deportation and permanent exclusion from the United States. There was no indication her attorney considered the immigration consequences of her plea even though a social worker had expressed concern and the defendant had expressed concern to probation. This failure impeded the defendant’s ability to understand the consequences of her plea.
Authority:
PEN 1473.7(a)(1)
People v. Mejia (2019) 36 Cal.App.5th 859, 871
People v. Padron (2025) 109 Cal.App.5th 950, 960–961
Eighth Holding:
Defense counsel has a duty to advise criminal defendant clients of the immigration consequences.
Authority:
PEN 1016.2
PEN 1016.3
Padilla v. Kentucky (2010) 559 U.S. 356, 371
People v. Carrillo (2024) 101 Cal.App.5th 1, 17-18