Tag Archives: Immigration consequences

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

Duty of counsel, Duty of the court, Immigration, Plea bargains, Sixth Amendment, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000994

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to vacate his guilty plea conviction under section 1473.7, because the defendant demonstrated entitlement to relief.

First Holding:

In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea.

In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the basis that 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. Relief is not contingent upon establishing ineffective assistance of counsel.

Authority:

PEN 1473.7(a)

People v. Vivar (2021) 11 Cal.5th 510, 522-523

People v. Carrillo (2024) 101 Cal.App.5th 1, 12-13

Second Holding:

A defendant must satisfy three statutory requirements to be eligible to seek relief from a legally invalid conviction or sentence under section 1473.7(a)(1). The movant must show he is no longer in criminal custody, and 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. The motion must also be timely.

Authority:

PEN 1473.7

People v. Carrillo (2024) 101 Cal.App.5th 1, 13

Third Holding:

To prevail under section 1473.7, a defendant must demonstrate that his conviction 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 a conviction or sentence.

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.

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

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

Fourth Holding:

We evaluate prejudicial error under the totality of the circumstances.

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.

The defendant’s probability of obtaining a more favorable outcome if he had rejected the plea and the difference between the bargained-for term and the likely term if he were convicted at trial are also relevant.

These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.

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.

Authority:

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

People v. Vivar (2021) 11 Cal.5th 510, 529-530

People v. Martinez (2013) 57 Cal.4th 555, 564

Lee v. United States (2017) 582 U.S. 357, 358

Fifth Holding:

On appeal, 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.

We exercise independent judgment to determine whether the facts satisfy the rule of law, and defer to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed.

However, when, as in this case, 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

People v. Vivar (2021) 11 Cal.5th 510, 527-528

Sixth Holding:

The focus of this inquiry is the defendant’s own error. Thus, the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

The defendant is the only one with direct access to his state of mind, but a defendant’s assertion as to his or her state of mind is not accepted at face value by courts evaluating a section 1473.7 motion. Such assertions must be corroborated with objective evidence.

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel.

Authority:

People v. Carrillo (2024) 101 Cal.App.5th 1, 16-17

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Espinoza (2023) 14 Cal.5th 311, 325

People v. Padron (2025) 109 Cal.App.5th 950, 962

Seventh Holding:

The standard section 1016.5 advisement—given to all criminal defendants in California who plead guilty to any offense other than an infraction—that his or her criminal conviction may have adverse immigration consequences does not bar a defendant from seeking relief from his plea on grounds of mistake or ignorance based on immigration consequences. Thus, the fact the superior court advised defendant pursuant to section 1016.5 does not resolve the matter against defendant.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 889, 895

People v. Lopez (2021) 66 Cal.App.5th 561, 577-578

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

People v. Padron (2025) 109 Cal.App.5th 950, 962

Eighth Holding:

Prior to Padilla, there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. Rather, most courts had determined that no such duty existed.

As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.

(Gary note:  I think we all know what the court means by “Prior to Padilla, there was no Sixth Amendment obligation ….”  But I think a more accurate statement would be something like, “Padilla was the first pronouncement by the United States Supreme Court recognizing that the Sixth Amendment places an obligation on the part of defense counsel to ….”  The Sixth Amendment was certainly not amended to add any provision generating a new obligation.  The Sixth Amendment has been around for centuries, unchanged.  It was only its import that hadn’t been seen in the past, at least by the High Court.

(The court’s phrasing as I’ve set out in the Ninth Holding tracks what I’m saying.

(I mention this because I think sometimes it is important to argue that something is NOT new law, and that it has BEEN the law all along, notwithstanding that it had not previously been understood to be the law.  Why is that important?  It can make the difference in whether a court recognizes that your client’s rights were violated, even though it was only through a later appellate analysis that the nature of the violation was discovered.  We don’t want the court to assume that, because no court had seen it before, your client is not entitled to its benefit.

(There have been decisions, of course, that decline to revisit cases where, had the law been understood at the time, there would have been a different result.  But that is generally related to the principle of finality of judgment and the jurisdiction of the court to act on the case.  While not directly the same, think of the Estrada presumption of retroactivity of ameliorative changes in the law to those whose judgments are not final, in the absence of clear intent that the change was to be applied prospectively only.  

(Just sayin’.

(Of course, with respect to Padilla, the practical effect is that yes, the Sixth Amendment imposes the obligation on the attorney to provide the advice, but the failure to do so prior to Padilla is not tantamount to ineffective assistance of counsel as that principle has been described in the past.  As the court in this case said, relying on In re Grinder, “As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.”

(Was there a change in the law?  Or simply a change in the understanding of the Sixth Amendment?  Of course, the opposition might argue that court pronouncements dictate what is the law, and therefore they represent the law, and thererfore it wasn’t until Padilla that the Sixth Amendment created the obligation.  An interesting debate, or not, but for another time.)  

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

Chaidez v. United States (2013) 568 U.S. 342, 353

People v. Carrillo (2024) 101 Cal.App.5th 1, 17

In re Grinder (2025) 114 Cal.App.5th 845, 872

Ninth Holding:

Here, defendant entered his plea 15 years before the United States Supreme Court held in Padilla that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. As such, defendant’s attestation that his attorney did not advise him about the immigration consequences of his plea is consistent with the state of the law at that time.

(Gary note: The appellate court examined and analyzed extensively many facts in the record from which it concluded that, based primarily on the principles I have extracted in this summary, the defendant was entitled to relief because his plea was not entered knowingly and intelligently within the contemplation of section 1473.7. I have omitted those details, some of which included citations to other cases apparently relevant to those details. Since this was an unpublished decision and cannot be cited for comparison, and since this is supposed to be a summary and not a copy of the entire decision, I have to stop about here.)

Authority:

PEN 1016.2

People v. Carrillo (2024) 101 Cal.App.5th 1, 18

People v. Rodriguez (2021) 68 Cal.App.5th 301, 307–312

 

Immigration, Plea bargains, Standard of review

Case 000688

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to vacate his conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available.

However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

While the judge who took the plea in 1995 declared her practice was to ensure defendants received sufficient immigration advisements, she mentions only possible consequences. She does not state she or the district attorney made the mandatory consequences explicit. Because the defendant’s plea predated Padilla, the requirement making this advisement mandatory for defense counsel did not yet exist. Without an explicit statement about the mandatory consequences, the immigration advisement was inadequate.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905–906 [where immigration consequences are clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Vivar (2021) 11 Cal.5th 510, 523 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient]

Fifth Holding:

To determine prejudice, we focus on whether there is a reasonable probability the defendant would have turned down the plea agreement had he understood the immigration consequences. [The court then described his ties to the United states.] We also determine whether there was reason for the defendant to believe an immigration-neutral disposition was possible. His attorney testified to several other crimes to which the defendant could have pleaded that would have been better for his immigration prospects. Although his exposure was eight years, his plea agreement was for less than a year of prison time. He may have needed to accept a longer prison time to obtain a lesser conviction, but he averred this willingness.

The sparse record we have does not provide reason to believe the prosecutor would have rejected such a proposal automatically. Moreover, though the trial court stated, and the prosecutor argues, it would have been irrational to roll the dice on a longer sentence with such an offer in hand, the Supreme Court of the United States has recognized that someone in the defendant’s position might indeed rationally make such a decision, as the defendant affirmed he would have.

Authority:

Lee v. United States (2017) 582 U.S. 357, 371

Immigration, Standard of review

Case 000627

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his motion to vacate a conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available. However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

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

Fourth Holding:

The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute. The focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion.

Authority:

People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910

Fifth Holding:

There is a critical difference between being notified the plea may have immigration consequences and being told the plea will make one immediately deportable. When a noncitizen receives only the first advisement in a situation calling for the second, the advisement is insufficient. A failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 523, 533

Sixth Holding:

Deep, lifelong ties to United States is compelling evidence a noncitizen would reject plea leading to mandatory deportation. This desire is particularly strong where the noncitizen is an asylee. In addition to facing disruption of the most important relationships in the noncitizen’s life, an asylee must also fear returning to a place the asylee has an adjudicated reason to fear.

Authority:

People v. Rodriguez (2021) 68 Cal.App.5th 301, 325

People v. Padron (2025) 109 Cal.App.5th 950, 963

Immigration, Standard of review

Case: 000474

Posted on by Gary McCurdy

Error and/or relief

We reverse and remand for the trial court to enter an order granting the defendant’s application under section 1473.7 because he did not understand the immigration consequences of his pleas.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences. In making this determination, we consider the totality of the circumstances. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

PEN 1437.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Second Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Third Holding:

The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute.

Authority:

People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910 [focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion]

Fourth Holding:

There is a critical difference between (1) being notified the plea may have immigration consequences and (2) being told the plea will make one immediately deportable. When counsel provides only the first advisement in a situation calling for the second, the advisement is insufficient.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 523, 533 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient; advisement that plea might have adverse immigration effects insufficient where deportation would be mandatory]

Fifth Holding:

At the time of the plea in 1996, the defendant’s counsel did not have a duty to discuss mandatory immigration consequences as they would now. That duty arose only with the decision in Padilla. When counsel had no professional obligation, we cannot infer that counsel in 1996 told the defendant of the mandatory immigration consequences. The lack of any proper advisement in the record corroborates the defendant’s claim.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905-906 [where immigration consequences clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Bravo (2021) 69 Cal.App.5th 1063, 1073-1074 [advisement given in 1997 insufficient to satisfy section 1473.7]

Sixth Holding:

The defendant’s ties to the United States are sufficient evidence that the defendant would have focused on mandatory immigration consequences.

Authority:

People v. Alatorre (2021) 70 Cal.App.5th 747, 771 [deep ties to the United States constitute contemporaneous evidence that avoiding deportation would have been a primary concern]

Seventh Holding:

Where a noncitizen is no longer in custody and triggering events in the statute have not occurred, the motion is timely.

Authority:

People v. Perez (2021) 67 Cal.App.5th 1008, 1016