Category Archives: Immigration

Immigration, Standard of review

Case 001132

Posted on by Gary McCurdy

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

Immigration, Standard of review

Case 001126

Posted on by Gary McCurdy

Error and/or relief

The defendant’s moved to vacate his guilty plea under section 1473.7, asserting a lack of a knowing and intelligent understanding of the immigration consequences. The court erred in denying the motion, having concluded that, while he did not have an adequate understanding, there was no prejudice. We therefore reverse and remand with directions to grant the motion.

First Holding:

Section 1473.7 enables a defendant who is no longer in criminal custody to bring a motion to vacate a conviction or sentence on grounds the conviction or sentence is legally invalid due to 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.

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

Second Holding:

The independent standard of review applies to an appeal of an order denying 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. Factual findings and credibility determinations based on the trial court’s personal observation of witnesses are entitled to deference.

However, when, as here, facts derive entirely from written declarations and other documents, no such deference is warranted because the trial court and the appellate court are in the same position with respect to assessing the evidence. 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. Avena (2026) 119 Cal.App.5th 624, 632

People v. Garcia (2022) 79 Cal.App.5th 1059, 1065

Third Holding:

In determining whether a defendant has established error under section 1473.7, the court’s focus is on the defendant’s subjective understanding of immigration consequences at the time of entering a guilty plea. A defendant may establish error by showing the defendant entered a guilty plea without a meaningful understanding of the actual or potential adverse consequences of the resulting conviction or sentence.

The defendant alternatively may show that counsel provided incomplete or inaccurate advice about the plea’s immigration consequences or did not effectively communicate the immigration consequences, so the defendant entered the plea without a meaningful understanding of them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 614

People v. Bravo (2021) 69 Cal.App.5th 1063, 1073 [Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.]

People v. Padron (2025) 109 Cal.App.5th 950, 954–955, 959, 963 [granting the defendant’s section 1473.7 motion in part based on his mental health issues]

Fourth Holding:

A defendant establishes prejudice by showing a reasonable probability the defendant would not have entered the plea if the defendant had correctly understood its actual or potential immigration consequences and their options for defending against those consequences.

A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626

Fifth Holding:

We consider the totality of the circumstances in determining whether there is a reasonable probability the defendant would not have pleaded guilty had he meaningfully understood its immigration consequences.

A defendant’s assertion he would not have entered the plea must be corroborated by objective evidence. Objective evidence may be presented through a defendant’s declaration or testimony, declarations or testimony of others, or documentary evidence, including the record of the underlying criminal proceedings.

Objective evidence includes evidence of:

(1) the defendant’s ties to the United States;

(2) the importance the defendant placed on avoiding deportation;

(3) the defendant’s priorities in seeking a plea bargain;

(4) whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible;

(5) the probability the defendant would have obtained a more favorable outcome by rejecting the plea agreement; and

(6) the difference between the bargained-for term and the likely term if the defendant were convicted at trial.

These factors are not exhaustive and no single one is either required for relief or dispositive.

(Gary note: The appellate court dove extensively into information about the defendant to conclude that he was not properly informed and that he did not understand the consequences and that he suffered prejudice. Those details are omitted here because they serve no value as authority.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626-627

Sixth Holding:

We do not decide whether the defendant would have had reason to believe an immigration-neutral disposition was possible. Because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome.

Where avoiding deportation was the deciding factor for a defendant, there is a reasonable probability that such a defendant would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.

A defendant’s stated interests during plea negotiations are relevant only to the extent that they were based on a full and accurate understanding of the immigration consequences at issue. Consequently, a defendant’s stated interests during plea bargaining can hardly serve as evidence that he didn’t care about immigration consequences when it is undisputed that the defendant was not properly advised.

Authority:

People v. Camacho (2019) 32 Cal.App.5th 998, 1010

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1263, 1270

People v. Manzanilla (2022) 80 Cal.App.5th 891, 912

Immigration, Standard of review

Case 001106

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion under section 1473.7(a) to withdraw his no contest plea and vacate his conviction because he did not meaningfully understand the immigration-related consequences of his plea and that this was prejudicial

We reverse the order denying the defendant’s section 1473.7 motion. We remand the case to the trial court with directions to grant his motion, vacate his conviction, and permit him to withdraw his plea.

First Holding:

Section 1473.7 permits noncitizens who are no longer in criminal custody to seek vacatur of a conviction or sentence if they can show, by a preponderance of the evidence, the conviction or sentence 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.

A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.


To obtain relief under section 1473.7(a)(1), a defendant must satisfy two elements. The defendant must first show that he did not meaningfully understand the immigration consequences of his plea.

Next, the defendant must show that his misunderstanding constituted prejudicial error.

Prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

If the court finds the defendant has made both of these showings and has established that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization, it must grant the motion and allow the defendant to withdraw the plea.

Authority:

PEN 1473.7

People v. Curiel (2023) 92 Cal.App.5th 1160, 1172

People v. Espinoza (2023) 14 Cal.5th 311, 319

People v. Vivar (2021) 11 Cal.5th 510, 529

Second Holding:

We independently review a defendant’s entitlement to relief under section 1473.7(a)(1). In so doing, we exercise our independent judgment to determine whether the facts satisfy the rule of law.

We defer to the trial court’s factual findings to the extent they turn on the credibility of a witness’s live testimony. But when, as here, 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. Vivar (2021) 11 Cal.5th 510, 524-525, 527, 528

People v. Espinoza (2023) 14 Cal.5th 311, 320

Third Holding:

A defendant establishes prejudice by showing that there is a reasonable probability that the person would not have entered the plea if the defendant had correctly understood its actual or potential immigration consequences and the options for defending against those consequences.

A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.

Because immigration consequences may be more important to a noncitizen defendant than any term of incarceration, the focus of this inquiry is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626

Fourth Holding:

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.

Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320-321

Fifth Holding:

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

(Gary note: The court then dug into the details of this particular case and determined that the defendant demonstrated by the requisite preponderance of evidence that he did not fully understand the immigration consequences because of incorrect advice by his attorney, and that had he been properly informed, there was a reasonable probability that he would not have entered that plea.)

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321

Sixth Holding:

Whether the defendant could have secured a more favorable deal or prevailed at trial does not conclusively determine whether he established prejudice under section 1473.7. This is so because the focus is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.

Accordingly, our Supreme Court has explained that in evaluating whether a defendant would have rejected a plea on the hope or expectation of negotiating a different bargain without immigration consequences, we need not decide whether the prosecution would actually have offered a different bargain — rather, we should consider evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.

Authority:

People v. Padron (2025) 109 Cal.App.5th 950, 964

People v. Vivar (2021) 11 Cal.5th 510, 528-529

Seventh Holding:

(Gary note: This is not technically a holding or principle, but the Court of Appeal listed several cases where defendants with similar convictions were able to achieve surprisingly lenient, immigration-neutral sentences. I have included them below because they could prove useful comparisons on the the likelihood that a first degree burglary charge may be resolved in an immigration neutral manner.)

Authority:

People v. Kim (2009) 45 Cal.4th 1078, 1085 [Defendant was convicted of first degree burglary, but imposition of sentence was suspended and he was sentenced to five years’ probation on the condition he serve 180 days in jail]

People v. Preston (2015) 239 Cal.App.4th 415, 420 [following defendant’s guilty plea to one count of burglary and one misdemeanor count of false representation of identity to a peace officer, the trial court suspended imposition of sentence and placed defendant on five years’ probation]

People v. Ulloa (2009) 180 Cal.App.4th 601, 603 [defendant convicted of first degree, residential burglary, receiving stolen property, and misdemeanor vandalism sentenced to three years of formal probation and 120 days in jail]

People v. Romero (2002) 99 Cal.App.4th 1418, 1423 [defendant convicted of first degree burglary and, contrary to probation officer’s recommendation of a two-year prison sentence, given 36 months’ probation and 180 days in jail]

Appellate Principles, Immigration

Case 001101

Posted on by Gary McCurdy

Error and/or relief

In light of Hernandez, decided after the ruling appealed from below, we reverse the order denying the defendant’s motion to vacate his conviction under section 1473.7 because of his inadequate understanding of the immigration consequences, and we remand for further proceedings.

First Holding:

Under Penal Code section 1473.7, a person who is no longer in custody may seek to vacate a conviction on the ground it is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. The statute was enacted to provide out-of-custody defendants with a means to challenge criminal convictions for which they have suffered unexpected immigration consequences.

Authority:

PEN 1473.7

People v. Vivar (2021) 11 Cal.5th 510, 517

Second Holding:

To prevail under the statute, the defendant must first prove by a preponderance of the evidence that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error. Prejudical error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Third Holding:

In Hernandez, the California Supreme Court made clear that for purposes of establishing error under section 1473.7(a)(1), the focus is not so much on what the defendant was told about the possible immigration consequences of his plea, but on what the defendant subjectively understood those consequences to be.

Keeping in mind that, for noncitizen defendants, preserving their right to stay in the United States is often a crucial factor in deciding whether to plead guilty to criminal charges, the trial court ultimately must decide whether the defendant was prejudicially harmed by his or her inability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 607-608, 614-15, 622-623

Fourth Holding:

The court erred by applying res judicata (based on the previous 2002 denial of a motion to vacate the conviction for inadequate advice on immigration consequences) to bar the defendant’s motion under section 1473.7.

In Ruiz, the court ruled the doctrine of collateral estoppel, an aspect of res judicata, did not preclude the defendant from bringing successive section 1473.7(a)(1) motions on the basis she failed to understand the immigration consequences of her guilty plea. In so ruling, the Ruiz court found it significant that, at the time of the defendant’s first motion, she was required to prove her attorney was ineffective for failing to advise her of those consequences.

But by the time the Ruiz filed her second motion, that requirement had been eliminated, and she only had to show she prejudicially failed to understand the immigration consequences of her plea. Because the second motion involved a different standard for challenging and prevailing on immigration advisement errors, Ruiz was not collaterally estopped from bringing the motion.

The same reasoning applies here.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1068-1070

DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–825

Padilla v. Kentucky (2010) 559 U.S. 356 [a defense attorney’s failure to advise his or her client about the potential immigration consequences of a plea may constitute ineffective assistance of counsel]

Fifth Holding:

Whereas the defendant was required to prove his attorney was ineffective when he petitioned to vacate his guilty plea 25 years ago, that was not the case when he filed his recent section 1473.7(a)(1) motion. Hernandez confirms this is an important point of distinction because the error analysis under section 1473.7(a)(1) turns not on what the defendant was advised regarding the possible immigration consequences of his plea, but on whether he meaningfully understood those consequences and whether he was able to defend against or knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 622-626

Sixth Holding:

Hernandez acknowledged 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 it issued its decision. As the concurring and dissenting opinion observed, remand would allow the defendant an opportunity to make a fuller presentation of evidence with the guidance the Supreme Court has provided in mind and would permit the trial court to make a new ruling taking that additional evidence into account.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 621, fn. 4

Immigration, Plea bargains, Standard of review

Case 001051

Posted on by Gary McCurdy

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