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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

Amelioration, Sentencing

Case: 000239

Posted on by Gary McCurdy

Error and/or relief

Here, where the petition was facially sufficient, it was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage without appointing counsel and without a hearing. The trial court in this case appointed no counsel, conducted no hearing, and did not consider briefing, arguments of either party, or any other portion of the trial record, which necessarily informs the prima facie inquiry. On this record, with multiple participants in the shooting incident, as well as the jury’s instruction on the natural and probable consequences doctrine, a theory of implied malice, we cannot say it would be a waste of judicial resources to send the case back to the trial court to conduct its obligations under section 1172.6.

First Holding:

Effective January 1, 2019, the Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. It also added section 1170.95, now section 1172.6, to provide a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Thereafter, it expanded the path to resentencing under the law to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723-724

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

A petition under section 1172.6 that includes a declaration by petitioner that the petitioner is eligible for relief , based on all the requirements of section 1172.6, subdivision (a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558-559

Third Holding:

The prima facie inquiry is limited A petitioner’s allegations should be accepted as true, and the court should not make credibility determinations or engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. Indeed, in assessing petitions from individuals convicted after a jury trial, the jury instructions will be critical. The record of conviction also includes documents such as verdict forms. If the record [of conviction, including the court’s own documents, contains facts refuting the allegations made in the petition, then ‘the court is justified in making a credibility determination adverse to the petitioner. The court may deny the petition at the prima facie stage only if the record of conviction conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971, 974

People v. Strong (2022) 13 Cal.5th 698, 720 [factfinding is prohibited at the prima facie stage]

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Patton (2025) 17 Cal.5th 549, 563

People v. Gallardo (2024) 105 Cal.App.5th 296, 301

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

People v. Hickman (2025) 110 Cal.App.5th 1262, 1268

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000238

Posted on by Gary McCurdy

Error and/or relief

We strike the domestic violence probation fee. The defendant was sentenced to prison.

Holding:

The domestic violation probation fee is imposed only when a defendant is granted probation. It is not applicable when the defendant is sentenced to prison. the unauthorized fee must be stricken.

Authority:

PEN 1203.97(a)(5)

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of counsel, Sentencing, Sixth Amendment

Case: 000237

Posted on by Gary McCurdy

Error and/or relief

The sentencing court erred by considering aggravating circumstances not proven at trial. Because we reverse and remand for resentencing, we need not address the defendant’s contention that the court committed dual use error by relying on same fact—that he was was armed with or used a firearm—to both impose enhancements and sentence him to the upper term. He may raise his dual use argument at resentencing.

First Holding:

The defendant’s attorney did not object to dual use of facts or reliance on factors in aggravation that were not proved at trial. In general, claims not raised in the trial court may not be raised for the first time on appeal. This includes claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.

However, an appellate court may decline to apply the forfeiture rule. Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim. Thus, in People v. Gonzalez, this court declined to apply forfeiture to the defendant’s section 1170(b) claim where the defendant did not refer to the statute at sentencing, citing the defendant’s alternative claim of ineffective assistance of counsel and stating the application of amended section 1170(b) implicates a constitutional right.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326-327

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10

Second Holding:

The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170

Third Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Under the current version of section 1170(b)(2), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 834

People v. Lynch (2024) 16 Cal.5th 730, 768

Fourth Holding:

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and the Chapman standard of reversal unless harmless beyond a reasonable doubt must be satisfied.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

Chapman v. California (1967) 386 U.S. 18

Abstracts and Minutes, Fines and fees

Case: 000236

Posted on by Gary McCurdy

Error and/or relief

The abstracts of judgment for all of the defendants reflect assessments that were not orally pronounced (in fact, the trial court had found that the defendants did not have the ability to pay the fees) and must be stricken. The People agree. We agree with the parties and will order those assessments stricken from the abstract of judgment.

Holding:

It is well settled that an abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, the court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89