Category Archives: Immigration

Immigration, Sentencing, Standard of review

Case: 000421

Posted on by Gary McCurdy

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

Immigration, Standard of review

Case: 000398

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 1991 drug conviction. We conclude the trial court improperly denied his motion as successive. We will reverse and remand with instructions.

First Holding:

Section 1473.7(a)(1) authorizes a person no longer in criminal custody to file a motion to vacate a conviction or sentence that is legally invalid due to prejudicial error damaging person’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully understand the actual or potential immigration consequences of a plea. 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.

Authority:

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

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

Second Holding:

We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences. Under that standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. 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:

Given intervening amendments to section 1473.7 between the defendant’s first and second motions, we agree with the parties that the section motion was not successive of his first. Effective January 1, 2019, Assembly Bill No. 2867 (2017-2018 Reg. Sess.) made it easier to retroactively challenge convictions based on an inadequate immigration advisement. Significantly, the new law eliminated the need to meet the requirements of Strickland v. Washington (1984) 466 U.S. 668 (on ineffective assistance of counsel). Section 1473.7 states that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. Because the new law provides a different standard for challenging and prevailing based on immigration advisement errors, the earlier motion did not bar appellant’s later motion.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066

Fourth Holding:

Although the trial court erred in denying appellant’s motion as successive, mere judicial error does not establish bias and normally is not a proper ground for disqualification. We find nothing in the record that demonstrates actual bias or the appearance of bias. Thus, we deny the request to appoint a different judicial officer on remand.

Authority:

In re Tuilaepa (2025) 108 Cal.App.5th 1262, 1283

People v. LaBlanc (2015) 238 Cal.App.4th 1059, 108

Duty of counsel, Immigration, Standard of review

Case: 000240

Posted on by Gary McCurdy

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

Effective assistance of counsel, Immigration

Case 000053

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 2022 conviction by a no-contest plea. He contends he was unable to defend against and meaningfully understand the adverse immigration consequences of his conviction because of his defense counsel’s prejudicial errors. We conclude the defendant has met his burden of establishing error under section 1473.7. His counsel’s attempts to negotiate an immigration-safe plea were insufficient. Counsel proposed a plea that was unlikely to be accepted by the People, instead of a plea to an alternative, immigration-safe offense that was comparable to the People’s offer. The defendant also established by a preponderance of the evidence that, but for his counsel’s error, he would not have entered a plea. Accordingly, we reverse the denial of his motion and direct the superior court to vacate his conviction.

First Holding:

A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence if 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. The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of such grounds for relief.

Authority:

PEN 1473.7

Second Holding:

The moving party must also establish 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 a petitioner must first show that an error occurred—specifically, that he or she was unable to either meaningfully understand, defend against, or knowingly accept the immigration consequences of his conviction.

Authority:

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

People v. Padron (2025) 109 Cal.App.5th 950, 958

Third Holding:

The focus of this showing is the defendant’s own error. To establish error, a petitioner may, but need not, prove he received ineffective assistance from his counsel.

Authority:

PEN 1473.7(a)(1)

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

Fourth Holding:

Even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Authority:

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1268

Fifth Holding:

The petitioner must demonstrate that the error was prejudicial.

Authority:

PEN 1473.7(a)(1)

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