Opinion
F083450
03-02-2023
THE PEOPLE, Plaintiff and Respondent, v. MARCIAL FLORES, Defendant and Appellant.
Law Office of Hristo Bijev and Hristo Bijev for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Cavan M. Cox II, and Ian P. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.
Law Office of Hristo Bijev and Hristo Bijev for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Cavan M. Cox II, and Ian P. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, Acting P. J.
INTRODUCTION
In 2005, appellant Marcial Flores (erroneously charged as "Marciel Flores") pleaded guilty to violating Penal Code section 273.5, subdivision (a), felony willful infliction of a corporal injury on a spouse or cohabitant, and was placed on probation.
See Concurring Opinion (Undesignated statutory references are to the Penal Code.) In 2021, appellant filed a motion to vacate his plea and conviction pursuant to sections 1016.5 and 1473.7. Appellant's motion was supported by his declaration and testimony at an evidentiary hearing that, while he signed an advisement of rights form addressing the immigration consequences of his plea, the court never advised him about those consequences at the plea hearing as required by section 1016.5. Appellant further argued that under section 1473.7, he did not meaningfully understand the immigration consequences stated in the advisement of rights form, and his error was prejudicial because he would have never entered the plea if he had known about those consequences given his family ties to the United States.
The superior court denied appellant's motion to vacate his plea and found appellant's declaration and testimony were not credible, primarily based on an unsworn e-mail, apparently written by the attorney who represented appellant at the plea hearing, stating appellant was advised by that attorney and the court about the immigration consequences when he entered his plea. The plea attorney was supposed to appear as a witness at the evidentiary hearing but failed to do so. Appellant's current attorney advised the court, however, the plea attorney's unsworn statement in the e-mail was erroneous because the transcript of the plea hearing showed the court that took the plea did not advise appellant about the immigration consequences.
We conclude the court properly denied appellant's section 1016.5 motion. As to his section 1473.7 motion, we conclude the court improperly rejected appellant's credibility by accepting statements in an unsworn e-mail for the truth of the matter. We also find appellant met his burden to show he did not "meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences" of his plea (§ 1473.7, subd. (a)(1)). However, we conclude remand is appropriate to further develop the record as to whether "his misunderstanding constituted prejudicial error" as explained in the California Supreme Court's recent opinion in People v. Espinoza (2023) 14 Cal.5th 311, 319, 325-326 (Espinoza).) Espinoza was decided while this case was pending on appeal, and this court requested and received supplemental briefing from the parties to address its impact on the issues herein.
PROCEDURAL HISTORY
Appellant's Background Prior to the Plea
Appellant was born in Mexico in 1982 and came to the United States in 2001 when he was approximately 19 years old. He and A.D., a citizen who he later married, were the parents of three children born in the United States in 1999, 2003, and 2004.Appellant declared he had resided in the United States, and worked and paid taxes here, since 2001. The record does not identify where or when appellant worked, or contain declarations from family members or friends addressing other aspects of his life after arriving in the United States.
Appellant's background information is based on his declarations and documentary exhibits submitted in support of both his motions to vacate, and his testimony at the evidentiary hearing on his second motion. The court stated it had reviewed the supporting exhibits filed with both motions when it denied his request for relief. Appellant's documentary exhibits included birth certificates to show his wife and their five children were citizens, and he was the father of the children. These birth certificates state appellant was born in Mexico in 1982. The birth certificate for the eldest child identified A.D. as the mother and did not identify anyone as the father. Appellant's declaration stated they were the parents of five children, however, and that point in his declaration has not been challenged.
Appellant's Plea to Violating Section 273.5
On December 17, 2004, a criminal complaint (No. LBF11623) was filed, charging appellant with a single count of felony infliction of a corporal injury on a current or former spouse or cohabitant, identified as A.D., resulting in a traumatic condition, committed on or about September 28, 2004, in violation of section 273.5. There is no evidence appellant had any criminal convictions prior to this charge.
The Plea Hearing
On January 7, 2005, the plea hearing was held before Commissioner Cook. Appellant, who was 22 years old, was present with his deputy public defender, Sean Howard, and an interpreter, Carla Garcia.
The court stated it had received an "advisement of rights, waiver and plea form."
"THE COURT: ... Did you read over this form with your attorney, Mr. Howard?
"THE DEFENDANT: Yes.
"THE COURT: Do you understand what's on there?
"THE DEFENDANT: Yes.
"THE COURT: Do you understand when you entered the plea set forth in this paper that you won't be having a jury trial and you won't be having a court trial?
"THE DEFENDANT: Yes.
"THE COURT: And you'll also be giving up your right to confront and cross examine the witnesses against you?
"THE DEFENDANT: Yes.
"THE COURT: How do you plead to the charge in this case committing a felony on September 28th, 2004, corporal injury to a spouse or cohabitant?
"THE DEFENDANT: Guilty." (Italics added.)
The court accepted the plea and placed appellant on formal probation for 36 months subject to certain terms and conditions, including serving 60 days in jail, reporting to the probation officer, obeying all laws, and paying certain fines and fees.
The court stated there was an existing stay-away order and asked if it was going to be modified. The prosecutor said yes, and the victim was in court. The court addressed A.D. (hereafter Mrs. Flores) and asked about the modification:
"THE COURT: And you are asking that the no contact order be changed so that [appellant] be ordered not to harm, molest, or [harass]
"MRS. FLORES: Yes.
"THE COURT: If I make that order, do you have any concern for your safety?
"MRS. FLORES: Yes-oh, no.
"THE COURT: All right. I'm going to fill out the CLETS modification order at this time. We'll change the order from a stay away to do not harm, molest, abuse or [harass] Miss [A.D.].
"MRS. FLORES: It's Flores. We are married." (Italics added.)
The court ordered appellant to enroll and complete a certified batterer's treatment program and domestic violence counseling as directed by the probation officer.
Advisement of Rights Form-Immigration Consequences
As referenced by the court, appellant initialed and signed a preprinted form entitled "Advisement of Rights, Waiver, and Plea Form" on January 7, 2005 (Advisement of Rights or plea form). It consisted of three pages with 31 separately numbered paragraphs.
Appellant initialed the following paragraphs: the matter could be heard by a commissioner or a temporary judge; he had enough time to discuss the case with his attorney; he waived a preliminary hearing; he understood and waived his constitutional rights as individually stated in the form; he would plead either guilty or no contest to violating section "273.5(a)," with a sentencing range of two, three, or four years, or 12 months in jail; if he was sentenced to prison, he would be placed on parole for up to three years and returned to prison upon violating parole; there was a factual basis for the plea; he was not under the influence of alcohol, drugs or medication; he was pleading to "a priorable offense," he would be placed on probation; he would be required to complete a batterer's treatment program; the only promises made in return for his plea was that he would "receive 60 days on this case," and he freely and voluntarily pleaded "no contest" to "corporal injury to a spouse."
In the middle of the second page of the plea form, appellant initialed paragraph No. 16 that stated:
"I understand that if I am not a citizen, my guilty or no contest plea will result in my deportation (removal), exclusion from admission to the United States, and denial of naturalization." (Italics added.)
Appellant signed the form at the bottom of the third page.
Statements Attached to Advisement of Rights
Attached to the Advisement of Rights form was another preprinted document, consisting of a single page with four separate signed paragraphs, all of which were dated January 7, 2005.
First, an "Attorney's Statement" was signed by Howard. This "statement" was not a sworn declaration, and the preprinted language stated the attorney had reviewed the form with his client, explained each of the rights to him, answered all of his questions with regard to this plea, discussed the facts of the case with his client, "and explained the consequences of this plea, the elements of the offense(s), and the possible defenses." (Italics added.)
Second, a "Prosecuting Attorney's Statement" was signed by the deputy district attorney (the People) who appeared at the plea hearing and who stipulated to the factual basis for the plea.
Next, an "Interpreter's Statement" was signed by Carla Garcia, the Spanish interpreter at the plea hearing, who "declared" the following:
"I made a true interpretation of this document in its entirety to [appellant] in a language that he/she understands, as well as interpreting the full proceedings of the Court this day in [appellant]'s matter and am convinced that he/she fully understands his/her rights, his/her waivers, and the possible consequences of his/her plea." (Italics added.)
The last statement was entitled "Court's Findings and Orders" and signed by Commissioner Cook, stating he reviewed the Advisement of Rights form, questioned the defendant "or" his attorney concerning the defendant's constitutional rights, and found the defendant knowingly and intelligently waived his constitutional rights "with an understanding of the nature and consequences thereof, and that there [was] a factual basis for the plea." (Italics added.)
The Order Granting Probation
The record contains the order granting probation, also filed on January 7, 2005, stating appellant pleaded guilty to violating section 273.5, subdivision (a), waived arraignment and preparation of the probation report, and was placed on probation for 36 months with listed terms and conditions. This form was signed by the court and appellant.
Immigration Consequences of a Section 273.5 Conviction
It is undisputed by the parties that under the Immigration and Naturalization Act (INA) (8 U.S.C. § 1101 et seq.), a noncitizen who suffers a section 273.5, subdivision (a) conviction, regardless of the sentence, qualifies for deportation. (People v. Manzanilla (2022) 80 Cal.App.5th 891, 903-904.) It is also undisputed appellant's conviction for domestic violence subjected him to mandatory immigration consequences when he entered his plea in 2005. (Ibid.)
Appellant's Life After the Plea
As explained above, Mrs. Flores stated at the January 2005 plea hearing that she had married appellant. They became the parents of two more children who were born in the United States in May 2005 and October 2006.
The instant record contains a reporter's transcript showing appellant pleaded guilty on December 5, 2007, to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), in the Merced Superior Court, case No. MF47404A, and was placed on probation. As a result of that conviction, he admitted violating probation in the domestic violence case and he was reinstated on probation.
On or about November 5, 2020, Mrs. Flores filed an I-130 petition with the United States Citizenship and Immigration Services, Department of Homeland Security, for appellant to obtain an immigrant visa as the spouse of a citizen.
On or about February 3, 2021, Mrs. Flores received a notice from the Citizenship and Immigration Services that her I-130 petition for appellant was approved, it had been sent to the National Visa Center (NVC) for processing, and approval of the petition did not guarantee or grant any immigration status to appellant.
On or about February 9, 2021, the NVC sent a notice to appellant that it received the approved petition, and NVC's role was to "ensure you are prepared for your immigrant visa interview at a U.S. Embassy/Consulate General, and to schedule your interview appointment."
In his declaration supporting his motion to vacate, appellant stated that while he was in the process of filing this application, Hristo Bijev represented him and explained that as a result of his plea in the domestic violence case, he could not receive a green card and could be deported; this was the first time he learned this information.
This information is the full extent of the evidence in the record about appellant's life between his domestic violence conviction in 2005 and his motion to vacate in 2021. There is no evidence in the record that appellant committed any additional crimes.
Appellant's First Motion to Vacate
The instant appeal is from the denial of appellant's second motion to vacate his plea and conviction in the domestic violence case. In denying that motion, however, the superior court stated it had considered the entirety of the record, including the motion and exhibits submitted in support of appellant's first motion to vacate. We briefly review his first motion.
Appellant's Motion
On March 10, 2021, one month after he received confirmation of his approved application for an immigrant visa, appellant (through Bijev, present appellate counsel) filed a motion to withdraw his plea and vacate his section 273.5 conviction because he was not advised of the collateral immigration consequences of that plea as required by section 1016.5, he did not meaningfully understand such consequences pursuant to section 1473.7, and the charge should be dismissed pursuant to section 1385.
Appellant's motion was supported by several documentary exhibits, including the Advisement of Rights form and the transcript from the January 7, 2005, plea hearing; appellant's declaration, signed under penalty of perjury on March 7, 2021; the documents regarding his wife's application for him to obtain a visa; and the birth certificates for his wife and children.
The People's Opposition
On March 24, 2021, the district attorney filed opposition to appellant's motion to vacate and argued it should be denied under both sections 1016.5 and 1473.7 because appellant received the appropriate immigration advisement in the Advisement of Rights form with the interpreter's assistance, and the court obtained his admission at the plea hearing that he had sufficient time and reviewed that form with his attorney.
The Court's Denial of the Motion Without Prejudice
On April 14, 2021, a hearing was held in superior court before Judge McCabe on appellant's motion. Bijev stated appellant was not able to appear and requested a continuance if the court wanted to hear his testimony. The People replied that even if appellant testified consistent with his sworn declaration, it would still be insufficient to support his motion since the record showed he received the required immigration advisement in the plea form when he entered his plea.
This hearing was held before the California Supreme Court issued its opinion in People v. Vivar (2021) 11 Cal.5th 510 (Vivar) addressing the standard to evaluate and review section 1473.7 motions.
Bijev argued the transcript of the plea hearing showed the court failed to advise appellant of the immigration consequences as required by section 1016.5, the paragraph in the Advisement of Rights form was insufficient, appellant's motion satisfied his burden under section 1473.7 to vacate his plea and conviction, and the section 273.5 charge must be dismissed under section 1385.
The court denied appellant's motion without prejudice because he failed to show prejudicial error.
"The Court has granted these motions, but this particular case presents a number of issues that's problematic.
"First is, [section] 1203.4 is the exclusive method by which a court can dismiss a conviction of a Defendant who has successfully completed probation. And the trial court is without discretion to dismiss [appellant]'s conviction under section 1385..
"Next, the [section] 1016.5 motion, the Court notes that the Court's required to tell the Defendant that there may be consequences. However, Merced years ago altered its plea form wherein it indicates they will be deported by doing this. So they use harsher language. It's up front. So it exceeds the minimum of what the Court was required to do.
"The advisement need not be in the statutory language, and substantial compliance is all that is required as long as the Defendant is specifically advised of all three separate immigration consequences of this plea....
"A verbal advisement is not required. A validly-executed waiver form is a proper substitute for verbal admonishment by the trial court. ..
"The Court notes, also, under [section] 1473.7, that the new law removed the requirement for ineffective assistance of counsel, finding to vacate conviction and requires a Defendant only show that one or more of the established errors were prejudicial and damaged his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea....
"To show prejudice, a person must show by a preponderance of the evidence that he would never have entered the plea if he had known that it would render him deportable ...
"It's noted that the courts should not upset a plea solely because of post-hoc assertions from a Defendant about how he would have pled but for his attorney's deficiencies. Rather, they should look to contemporaneous evidence to substantiate a Defendant's expressed preference....
"The plea form and the plea transcript hold the contemporaneous evidence for the Court to consider. Typically, in these cases we have more than that. We have a declaration from opposing counsel, which we don't have. And there's other evidence that we have. [¶] All we have here today is [appellant]'s declaration regarding these issues.." (Italics added.)
The court stated appellant also failed to submit any evidence from the attorney who represented him at the plea hearing, or from an immigration attorney about the possible consequences of his plea. "All we have are post-hoc assertions by [appellant]. The evidence does not support [appellant]'s claim that he was not advised, did not understand, that he would have not taken the plea."
Appellant's Second Motion to Vacate
This appeal is from the denial of appellant's second or "renewed" motion to vacate his section 273.5 conviction under sections 1016.5 and 1473.7.
Appellant's Motion
Appellant's renewed motion, filed on July 26, 2021, was again supported by the Advisement of Rights form and transcript from the January 7, 2005, plea hearing, the documents regarding his wife's application for him to obtain a visa, and the birth certificates for his wife and children. It was also supported by the following additional exhibits.
Appellant's Declaration
Appellant's sworn declaration was substantially similar to the declaration filed to support his first motion. In it, he declared he had been living in the United States for many years and working and paying taxes. Appellant entered his plea because of an "alleged incident" that happened on September 25, 2004, when the police were called to his apartment "because there was a verbal complication with my wife and I." (Italics added.)
Appellant's declaration that his conviction arose from "a verbal complication" is not necessarily inconsistent with a violation of section 273.5, subdivision (a). At the time of appellant's plea in 2005, the statute prohibited the willful infliction of a "corporal injury resulting in a traumatic condition," and defined a "traumatic condition" as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (Stats. 2003, ch. 262, § 1.) The infliction of bruises constituted a traumatic condition under the statute. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1087.) While the incident between appellant and his wife may have arisen from a "verbal complication," there must have been some evidence of a traumatic condition to constitute a factual basis for the plea.
The Plea Hearing
As to the plea hearing, appellant declared:
"… On the day of my court in 2005, I remember being given a paper to initial. I do not remember what the paper said and that day in court I remember my counsel going over the form with me yet everything happened very fast. I did not read and I did not fully understand the form that I initialed because everything happened very fast. However, the attorney at that time I remember reading the form fast and telling me where to initial and sign.
"… When I was in court, I was nervous, afraid and a little confused. However, when the attorney had explained the form to me the interpreter would translate what the attorney would say. I do not have any memory of being told what the immigration consequences I could face in open court.
"… The judge had asked me if the interpreter had helped me with understanding the form I signed. I know there were other cases being heard and it was hard for me to fully understand what the interpreter was explaining. At the time I did not fully and meaningfully understand what the immigration consequences were and how they would affect me in the future.
"… I did not read the declaration everything happened very fast and I was nervous. I was confused and scared. I do not remember the exact words the attorney was telling me. However, I did not know that I could face deportation and never receive legal permanent residence to stay with my U.S. citizen family." (Italics added.)
Appellant declared he complied with the terms of probation to complete a program and pay a fine, but he would not have entered the plea if he had known about the immigration consequences.
"… I did not full[y] process and meaningfully understand the immigration consequences that I could not receive a green card. Actually, I'm sure that no one told me that if I have this conviction, I could not receive a green card in the future. I was told to initial the forms and sign and that was all my attorney advised me of. However, I did not read the form the interpreter was also translating for other people and was translating for me. However, I did not meaningfully understand the immigration consequences. I am sure that neither the attorney that they investigated the immigration consequences for my plea. [¶] . . . [¶]
"… Had I known that my plea of guilty would result in future immigration consequences of deportation, exclusion of admission into the United States, denial of naturalization or not being able to receive a green card I would have fought the case in front of the jury and I would have also consulted with an immigration attorney to discuss different options." (Italics added.)
Current Immigration Status
Appellant declared his wife had submitted an "I-130 Family Based Petition which was recently approved. I now have a pending case with the National Visa Center to receive my green card. However due to the conviction I recently found out I can be deported and not receive my green card."
Appellant declared he did not understand the immigration consequences of his plea until his current attorney, Bijev, explained for the first time that he could be deported and not receive a green card. "If I knew that I could not get a green card I would have fought the case in front of a jury or ask for another resolution with no immigration consequences." (Italics added.)
Declaration from Immigration Lawyer
Appellant also submitted a supporting declaration from Peter Singh, an immigration lawyer, addressing the immigration consequences resulting from appellant's conviction in this case. Singh stated that while appellant had obtained an approved I-130 visa based on his marriage to a citizen, he will need go to "an overseas U.S. consulate in order to obtain his lawful permanent status. However, with this conviction for [section] 273.5, I strongly advise that [appellant] not leave the United States until this conviction is vacated for legal error, rather than for rehabilitative or hardship reasons."
Singh further declared appellant's conviction for violating Penal Code section 273.5 would be a crime involving moral turpitude under federal immigration law "if the victim was his spouse," it was listed as a ground of inadmissibility under INA section 212(a)(2), and it is "a crime that has serious immigration consequences for noncitizens."
Singh declared that "if a sentence of 365 days or more was imposed, regardless of the amount of time that is suspended," the conviction would be considered an aggravated felony, "which is the worse type of immigration convictions that leave little to no relief and will require mandatory detention by [the United States Immigration and Customs Enforcement (ICE)] if he is taken into their custody."
Singh declared a conviction under section 273.5 would be grounds for denial of an "I-601A waiver application," a form that is needed prior to a noncitizen's departure from the United States "so that they won't be summarily denied for unlawful presence grounds at the consulate." The conviction will also result in "denial for the visa application at the consular office abroad." Finally, even if appellant remained in the United States, this conviction "will further be a deportable offense" under INA section 237(a)(2)(E).
Singh concluded: "If a client in criminal proceedings is not advised of these serious immigration consequences that will flow from a guilty or no contest plea to [section] 273.5, nor any advisement of immigration consequences from the judge or attorney on the record, then it is my strong professional opinion that [appellant] was prejudicially harmed. Furthermore, it would be impossible for [appellant] to meaningfully understand the immigration consequences of his plea since no such advisements were ever attempted."
E-mails with Sean Howard
Also in support of his motion, appellant submitted e-mails exchanged between Bijev and Howard.
On April 16, 2021, Bijev sent the following e-mail addressed to Howard, with the subject identified as case No. LBF11623, appellant's conviction in the domestic violence case.
"Dear Mr. Howard [¶] My office represents [appellant] in a post conviction Motion to vacate his conviction under PC 1473.7 and or 1016.5. We would like to request a statement from you indicating any recollection of this 2005 CASE-DV P.C. 273.5 [¶] Thank you for your time."
On the same day, Bijev received a response from the e-mail address he had sent his inquiry to, stating in its entirety:
"There was a sufficient body of evidence supporting the conviction. He was fully apprised of the immigration consequences by myself personally and the court. [¶] I have no further comment." (Italics added.)
Howard did not affix his name to this e-mail. Bijev replied by e-mail the same day:
"Thank you for your prompt answer. Actually according to the Reporter's Transcripts he was not advised of the immigration consequences on record!
"It is great you are remembering cases from 2007 [sic] especially if you did not go to trial. I cannot say the same for me. I don't recall cases that are 3-4 years old. I guess I am getting old.
"Do you still have the file? I am just trying to help your client who is my client now because it is not fair. The [section] 273.5 is an issue and his USC[itizen] wife (the victim in your case) and 5 USC[itizen] children want him to stay home.
"We simply would like to ask for your help if possible. I am not arguing IAC. I am arguing 1016.5 and 1473.7.
"We appreciate your time. Thank you again."
There is no evidence Bijev received a response to this e-mail.
E-mail from the Public Defender's Office
On May 11, 2021, Bijev e-mailed the Merced County Public Defender's Office and asked for appellant's file from this case (No. LBF11623). On the same day, the manager at the public defender's office replied by e-mail that while the public defender previously represented appellant, the file no longer existed because many older case files were "corrupted" and lost when they were scanned into the computer.
Arguments in Appellant's Motion
Appellant argued his declaration and supporting exhibits satisfied the burden for relief under section 1016.5 because the court never read the immigration advisement at the plea hearing. Appellant further argued he met his burden under section 1473.7 because he did not meaningfully understand the immigration advisement in the Advisement of Rights form, and his error was prejudicial because he would not have entered the plea if he had been properly advised.
Appellant cited Singh's declaration as evidence of the adverse immigration consequences he was now facing. While appellant attached Howard's e-mail as an exhibit, he pointed out it erroneously stated the court advised him of the immigration consequences at the plea hearing, and the hearing transcript was attached as an exhibit. Appellant further noted the public defender's file from his case had been destroyed so there was no evidence about what Howard advised him prior to the plea hearing.
The People's Written Opposition Filed July 29, 2021
The People's opposition to appellant's renewed motion argued it should again be denied because appellant failed to present any new evidence compared to his first motion, and his motion was meritless because of the plea form's immigration advisement, and appellant's acknowledgement at the plea hearing that he read and understood that form.
The People objected to appellant's sworn declaration as self-serving and inadmissible because he was not subject to cross-examination and the declaration consisted of "laughable" hearsay, such as appellant's certainty his prior attorney did not investigate immigration consequences: "[Appellant] cannot remember the things that hurt him that he should remember, but he does remember things that he cannot possibly know that would benefit him if one unreasonably assumed it to be true."
The People argued Howard's e-mail, submitted by appellant as his own exhibit, undermined his assertion he was never advised about the immigration consequences because Howard stated that appellant was "fully apprised" of the immigration consequences by Howard and the court. "Given that addressing immigration consequences is a critical part of a defense attorney's habit and custom, this is not surprising. That this motion is again before the court despite acquiring information that directly contradicts [appellant's] assertions with literally no new independent evidence supporting [appellant's] claims (a shortfall originally pointed out by Judge McCabe during the first motions), perhaps is surprising."
Oddly, the People objected to appellant's sworn declaration as containing inadmissible hearsay but did not similarly object to the statements in Howard's unsworn e-mail, and instead relied on it for the truth of the matter stated therein.
The People concluded appellant's renewed motion was "frivolous and a waste of court resources considering [appellant's] own evidence undermines his position."
Hearings on Appellant's Second Motion to Vacate August 25, 2021, Hearing
Judge Moranda convened a hearing on appellant's renewed motion. Bijev stated appellant and Singh would appear and testify by videoconference. Unaware witnesses would be testifying, the court continued the matter due to scheduling issues, and asked about a preferred hearing date. Bijev stated his paralegal was notifying Howard, who "wanted to join the video as well." Bijev did not see Howard on the video but said his office would inform Howard of the new hearing date. When the court set the date, it remarked that it still did not see Howard on the video. Bijev again said he would notify him.
October 13, 2021, Evidentiary Hearing
At the continued hearing, all the parties participated by teleconference. An interpreter assisted appellant, and Bijev stated he was waiting for Howard to join the video conference.
"THE COURT: I don't see him. Are you sure he's going to be here?
"MR. BIJEV: Well, we notified him and we sent him another email. I don't see him right now on Zoom. My office is going to try to contact him, Judge.
"THE COURT: Okay. You know he's not in the public defender's office anymore?
"MR. BIJEV: Yes, Judge." (Italics added.)
The court stated it had reviewed both motions to vacate, and the other pleadings in the case. It took judicial notice of the entire file and admitted into evidence the documentary exhibits attached to appellant's motions.
Bijev stated he was also going to call the manager of the public defender's office to testify about the destruction of appellant's file, as stated in her e-mail. Both the court and the district attorney were familiar with this potential witness and agreed it was not necessary to call the manager and they would accept the manager's e-mail for the truth of the matter that appellant's file had been accidentally destroyed.
Peter Singh's Testimony
The court heard expert testimony from Peter Singh, who stated appellant was not a citizen and did not have any immigration status. Appellant applied for his permanent resident status based on a petition filed by his wife, who was a citizen, and he was in the process of the next step to obtain a waiver. Singh stated the section 273.5 conviction is a crime of moral turpitude under immigration law and, because of that conviction, appellant would not obtain the waiver, and his application would be denied. According to Singh, even if appellant already had a green card, he would have been placed in removal proceedings and deported, and he could not reenter the country. If appellant ended up in the custody of ICE for some reason, he would also be deported because of the domestic violence conviction.
The Court's Inquiry About Sean Howard
After Singh testified, the court asked Bijev if he had reached Howard. Bijev said his legal assistant reported that Howard was not answering his telephone. Bijev explained he had previously advised Howard about the rescheduled hearing and did not know if something happened or why he was unavailable.
Bijev suggested they continue with the hearing, and he reserved the right to call Howard if he joined the hearing. Bijev also stated Howard's e-mail was part of the record. The hearing continued with appellant's testimony.
Appellant's Testimony
Appellant testified he came to the United States in 2001, he had worked since that time, he was married to a citizen, and they had five children who were also citizens. When his wife filed a petition for his green card, he found out he was ineligible because of his section 273.5 conviction in 2005.
Appellant testified his wife was the victim in the 2005 offense, and it involved "a verbal confrontation" with her. When he appeared for the preliminary hearing, "[t]hat's when they presented this packet and I initialed and signed it." Appellant identified his initials on the plea form next to the paragraph about immigration consequences and said a female interpreter was present.
Appellant further testified: "That day I went to court, I went with the attorney. The attorney said something to the lady that was interpreting for me. And they told me where to put the initials and where not to and told me where to sign." Appellant was "stressed because of my plea, but also I was confused. I was in court, but I didn't know what it was about." The interpreter translated what the attorney said, but "it was not too clear," and it was "too quick. I didn't really understand."
Appellant did not recall being told the conviction would affect his future immigration status and that he could not get a green card. The court never explained the immigration consequences at the hearing where he entered his plea. "If I had known that[,] I would have never have done" the plea because "my whole family is here in the U.S. They are all here and I ... don't have anybody in Mexico. I would never sign that."
Appellant acknowledged the plea form contained an immigration advisement, but again testified he "didn't understand everything," what he was signing, or where he put his initials.
"Q. Yeah, but you had an interpreter who told you that you can get deported when they read this form to you?
"A. I had help. I had an interpreter help me put initials, but the whole document was not read to me. And I remember her telling me where to initial, where to not, where to sign. There was no question about immigration.
"Q. How much time did you spend with your attorney and the interpreter filling the form and signing it?
"A. The attorney came into the room. This was at the other courthouse. He came in the room in order to help me out. And he left to do other cases and the interpreter told me where to initial and where not." (Italics added.)
Appellant acknowledged that in his declaration, he stated his attorney read and explained the form, and the interpreter translated what the attorney said.
"I recall, but it was a bit confusing. I remember him indicating the process, but not explaining everything on the document. It was very confusing because the attorney and the interpreter were speaking at the same time." (Italics added.)
Appellant testified his two declarations filed in support of his motions to vacate were truthful and prepared in response to questions his current attorney asked about what happened at the plea hearing. "I'm here because I know what happened. I'm just telling the judge the truth. There was another judge, but I've never lied. I did everything I was supposed to do, paid my fines. I have no reason to lie in the declaration.
Cross-examination of Appellant
The People asked whether, at the time of his plea, appellant knew how much time he possibly faced on the charge. Appellant thought he might get about three months. The People asked if "one of the biggest considerations when you're charged with a crime is limiting the amount of punishment you might get when you're charged with a crime." Appellant answered: "Yes, but it depends on the case and the consequences of things that might happen." (Italics added.)
"Q. Were you ever confused about the amount of jail time you were going to get on this case? "
A. No. The time was clear. It's just this that was not." (Italics added.)
Appellant was asked if he remembered being placed on probation and whether he understood the terms of that probation. Appellant said yes.
"Q. ... Do you recall telling the Court at the time of your plea that you understood the plea form?
"A. The question the whole time was, was I helped to fill out the form. Yes, I was helped.
"Q. . Do you recall the judge asking you if you went over the plea form with your attorney prior to entering your plea?
"A. The attorney told the judge that he went over the forms with me. I was there with the interpreter. I did not understand everything that I was asked. I was helped to fill out, but not to comprehend it. [¶] ... [¶]
"Q. So, sir, do you recall the judge back on January 7th, 2005, asking you if you read over the plea form with your attorney, Mr. Howard?
"A. I was asked if I was helped. That was my answer to complete these documents that you're seeing right now. I was helped and I answered the judge that I was helped. [¶] . [¶] Whether I comprehended this, I was confused." (Italics added.)
The Parties' Arguments
Howard never appeared on the videoconference. Bijev acknowledged appellant signed the Advisement of Rights form and initialed the paragraph with the immigration advisements, but argued the transcript of the plea hearing showed the trial court failed to give any immigration advisements when appellant entered his plea as required by section 1016.5. Bijev advised the court that Howard's recollection in his e-mail-that the court gave the immigration advisements on the record-was incorrect and refuted by the reporter's transcript of the plea.
Bijev further argued section 1473.7 did not exist when Howard represented appellant at the plea hearing, and trial attorneys did not know they had to ensure a noncitizen had to meaningfully understand the immigration consequences of his or her plea. In addition, the public defender's file had been destroyed so there was no evidence of whether Howard investigated the immigration consequences.
Bijev argued appellant's declaration and hearing testimony were credible, and he did not meaningfully understand what was going on when he entered his plea or when he initialed the immigration advisements on the form. Appellant suffered prejudice because his entire family was in the United States, and his conviction was going to prevent him from obtaining his green card.
The People argued that "neutral sources," such as the interpreter, proved appellant understood the immigration advisement in the form, and it was incorporated by reference at the plea hearing when appellant told the court he had reviewed the form with his attorney. Appellant's claim the form was not read to him was in "stark contrast" to the interpreter's declaration she had translated the entire form for him. And while appellant claimed the procedure was confusing for him and he did not understand what was going on, "he certainly appears to understand the things-he knew he was going to get 60 days in jail. He knew he was going to get probation. But when it came down to the stuff, you know, that he didn't necessarily like what the answer was going to be, as far as, you know, did the judge ask you whether or not you went over the form, he never answered that question [at this hearing]. I mean, he answered it with things that weren't responsive, but he never actually answered it, because the answer is, clearly from the court record is that, yes, the judge did ask him that. And then the next question was going to be, you know, did the judge ask you whether or not you understood it. And his answer was yes."
The People also addressed Howard's e-mail and argued it was "a glaring omission" not to hear from Howard, and there was no evidence about Howard's standard practices at plea hearings "because the defense chose to not call him." (Italics added.) "[T]his motion is baseless and to some extent it's even stronger because Mr. Howard, at least through the email, you know, says, 'Hey, I told the defendant all of the stuff.' Obviously, it would be better to hear from Mr. Howard, but certainly that's their burden of proof and they didn't do that." (Italics added.)
In response, Bijev again stated that contrary to both Howard's e-mail and the district attorney's arguments, the transcript of the plea hearing showed the court never advised appellant about immigration consequences.
The Superior Court's Denial of the Motion
The superior court denied appellant's motion to vacate. In doing so, it reviewed the Advisement of Rights form, the interpreter's statement attached to the form, the transcript of the plea hearing, and Howard's e-mail.
"And one thing that wasn't there before [at the hearing on defendant's first motion to vacate] was the email from Mr. Howard, which I think supports the [People's] position. The email that there was a sufficient body of evidence supporting the conviction. That's an opinion obviously. But he did say, referring to [appellant] at that time, he was fully apprised of the immigration consequences by myself personally and the Court." (Italics added.)
The court stated appellant initialed the paragraph in the plea form stating the immigration consequences, and found appellant's testimony-that he did not understand the immigration consequences-was not credible because it was contrary to the statements in Howard's e-mail and appellant's initialing of the plea form.
"So in looking at all of that, I don't find that you've met your burden. You know, we can all wish that the law was something different, but I'm not really-, you know, I'm here today. And I know there's extreme prejudice, and that was pointed out by your expert. But it's not my decision on whether the immigration laws are fair or should be what they are. My decision today is only based on what happened back in 2005 and listening to the different evidence, which I listened to today from [appellant].
In context, the court's reference to "prejudice" was to the possibility appellant faced deportation because of the conviction, and not to a "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" as required to grant a section 1473.7 motion. (§ 1473.7, subd. (a)(1).)
"However, a lot of that, as [the People] pointed out, but as I listened I felt the same way, that they were self-serving statements. When it helped his case, his memory was good. When it didn't help, his memory was bad. And he certainly has memory of a number of things that happened back there-back then."
DISCUSSION
I. The Superior Court's Reliance on Howard's E-mail
As a preliminary matter, we review the circumstances surrounding the superior court's reliance on the contents of Howard's unsworn e-mail for the truth of the matter stated. The court found it supported the People's position that appellant's hearing testimony was not credible because in contrast to appellant's testimony, Howard "did say, referring to [appellant] at that time, he was fully apprised of the immigration consequences by myself personally and the Court." (Italics added.) The court relied on the e-mail even though Bijev submitted the plea transcript as a supporting exhibit and advised the court that part of the statement was erroneous because the transcript showed appellant was never advised of immigration consequences at the plea hearing in violation of section 1016.5.
We conclude the contents of the e-mail were not persuasive, probative, or entitled to any weight in rejecting appellant's credibility and denying his motion to vacate.
A. Admissibility and Weight of Evidence
"[A]ll relevant evidence is admissible at trial and ... the trial court 'has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.' [Citations.] Relevant evidence includes all 'evidence . . . having any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action.'" (People v. Riggs (2008) 44 Cal.4th 248, 289-290.)
Evidence offered to prove the existence of a fact can include a writing, which may in turn consist of recordings or transmissions by electronic mail (e-mail). (Evid. Code, § 250.) "Authentication of a writing ... is required before it may be admitted in evidence. [Citations.] Authentication is to be determined by the trial court as a preliminary fact [citation] and is statutorily defined as 'the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is' or 'the establishment of such facts by any other means provided by law' [citation]. The statutory definition ties authentication to relevance." (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) Here, the question of the authenticity of Howard's email was not raised or disputed below or on appeal, so we will assume for purposes of this opinion that it was authentic.
"If admitted, the trier of fact determines the weight it gives to that evidence. Two sources of relevant evidence may potentially conflict or lead to opposite conclusions. Evidence may be relevant but found unpersuasive. [The trier of fact] hearing competing relevant evidence will ultimately have to determine what weight, if any, to give each. 'Relevance' describes whether evidence should be heard because it might reasonably resolve a dispute. 'Weight' describes the degree to which the [trier of fact] finds the evidence probative," and a party may present evidence that it should be given less weight. (People v. Turner (2020) 10 Cal.5th 786, 805.) The trier of fact "is generally permitted ... to give that evidence the weight it deems appropriate [citation]." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 437.)
Even if a writing has been authenticated, it is still subject to a hearsay objection if it is offered to prove the truth of the matter stated therein and is inadmissible in the absence of an exception. (Evid. Code, § 1200.)
A party's failure to raise authentication and hearsay objections to a writing waives review of such claims on appeal. (People v. Sims (1993) 5 Cal.4th 405, 448; People v. Williams (1997) 16 Cal.4th 635, 661-662; People v. Bolin (1998) 18 Cal.4th 297, 320.)
"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Goldsmith, supra, 59 Cal.4th at p. 266.)
B. Analysis
On appeal, appellant states that he "was expecting to hear testimony but was not able to provide evidence from [Howard]." As he did below, appellant again asserts Howard's e-mail erroneously stated the court advised him of the immigration consequences at the time of his plea, the contents of the e-mail were contradicted by the record, and "[t]here is no written declaration under penalty of perjury by [Howard]."
The People's appellate briefing declares appellant's testimony was "directly contradicted" by Howard's e-mail that stated appellant "'was fully apprised of the immigration consequences by myself personally and the court.'" The People further assert the superior court properly rejected the credibility of appellant's testimony on this issue "because it was contradicted by an email from [Howard]," along with appellant's initials on the immigration advisement in the Advisement of Rights form.
In an appeal from the denial of a section 1473.7 motion to vacate, "[w]e 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. [Citation.] '"[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law."'" (Espinoza, supra, 14 Cal.5th at pp. 319-320; accord, Vivar, supra, 11 Cal.5th at p. 527.) The California Supreme Court has further held that reviewing courts "must give deference to the trial court's factual determinations if they are based on '"'the credibility of witnesses the [superior court] heard and observed.'"' [Citation.] 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." (Espinoza, supra, at p. 320, italics added; accord, Vivar, supra, at pp. 527-528.)
In exercising our independent review of this documentary evidence, we find the superior court improperly relied on Howard's e-mail to find appellant's testimony was not credible because the circumstances surrounding the e-mail undermine the weight and probative value of the hearsay statements in the document.
First, the unsworn statements in the e-mail purported to be based on Howard's personal recollection of appellant's plea, and not his general practices at the time. In doing so, Howard first offered an opinion on appellant's guilt-that "[t]here was a sufficient body of evidence supporting the conviction," without stating the basis for that opinion. Howard then stated appellant "was fully apprised of the immigration consequences by myself personally and the court." (Italics added.)
Howard's assertion he personally advised appellant of the immigration consequences is a conclusory statement lacking any detail, such as whether his purported advisement was consistent with the language in the plea form. His further assertion appellant was advised by "the court" is refuted by the undisputed transcript of the plea hearing, which shows the court never advised appellant of the immigration consequences, or even referred to the immigration advisement in the plea form.
Second, the persuasiveness, probative value, and weight of the statements in the email are undermined by what happened after it was sent. Bijev immediately replied to Howard's response and advised him of his factual error and that the transcript showed the court never advised appellant of the immigration consequences at the plea hearing and requested further information about the case.
Howard had three opportunities to clarify and correct his erroneous recollection about the court's purported advisement at the plea hearing but failed to do so: (1) there is no evidence he responded to Bijev's e-mail informing him about his error; (2) he did not appear at the videoconference at the first scheduled hearing on appellant's second motion to vacate in August 2021, even though Bijev represented to the court that Howard said he would appear; and (3) he did not join the videoconference for the evidentiary hearing held on appellant's motion in October 2021. We note Bijev represented to the court that (1) he advised Howard of the new hearing date, (2) Howard was supposed to appear, and (3) Bijev's office repeatedly tried to call him during the hearing, but he was not answering his telephone. These representations by an officer of the court are unrefuted in the record.
Third, appellant has not waived or forfeited any objections to appellate review of the admissibility, probative value, and weight of Howard's e-mail, or the court's reliance on the contents of that e-mail for the truth of the matter. The e-mail was attached as an exhibit in support of appellant's second motion to vacate, and Bijev advised the court he was going to call Howard as a witness at the hearing on the motion. At the October 2021 evidentiary hearing, after Howard failed to appear via videoconference or respond to Bijev's telephone calls, Bijev acknowledged the e-mail was part of the record. However, Bijev further advised the court that Howard's statement in his e-mail-that appellant was advised of the immigration advisements by the court at the plea hearing-was incorrect and refuted by the reporter's transcript of that hearing, and that the transcript was also submitted as a supporting exhibit. Bijev thus preserved an objection to admitting the contents of the e-mail for the truth of the matter.
Despite the circumstances surrounding Howard's failure to appear at the evidentiary hearing, the People erroneously argued appellant "chose not to call" Howard as a witness. They further argued appellant's motion to vacate was baseless because Howard's e-mail "says, 'Hey, I told [appellant] all of the stuff.' Obviously, it would be better to hear from Mr. Howard, but certainly that's their burden of proof and they didn't do that." (Italics added.) As noted above, nothing in the record undermines Bijev's representations to the court that Howard was aware of the hearing date and said he would appear, that Bijev tried to reach Howard during the videoconference hearing, and Howard never responded to telephone calls. There is no evidence to raise the inference that Bijev should have known Howard would not appear. Appellant clearly did not make a tactical decision not to call Howard, and his failure to appear cannot be considered as a factor to undermine the credibility of appellant's testimony at the evidentiary hearing.
At oral argument on appeal, Bijev stated he did not believe it was necessary to serve Howard with a criminal subpoena to appear at the evidentiary hearing because Howard said he was going to appear.
Nevertheless, the superior court agreed with the People and relied on the e-mail for the truth of the matter stated therein to reject the credibility of appellant's testimony at the hearing on the motion. The court found Howard "did say, referring to [appellant] at that time, he was fully apprised of the immigration consequences by myself personally and the Court." (Italics added.) The court made this finding even though Bijev submitted the reporter's transcript of the plea hearing as a supporting exhibit, and expressly advised the court that it showed the immigration advisement was not orally given by the court that accepted appellant's plea. The court either did not understand or erroneously dismissed Bijev's objections and instead relied on a factually inaccurate and unsworn e-mail for the truth of the matter to reject appellant's credibility.
We further note there was no other evidence before the court about Howard's interaction with appellant at the time of his plea in 2005. At the evidentiary hearing on his motion to vacate, both the court and the People agreed to accept the e-mail statement from the manager at the public defender's office for the truth of the matter, that appellant's file had been accidentally destroyed, even though Bijev was prepared to call the manager as a witness to substantiate her statement. Such an agreement was not reached about accepting Howard's email for the truth of the matter after he failed to appear at the evidentiary hearing.
The factual error in Howard's e-mail about the court's purported advisement at the plea hearing, and his failure to respond or appear at the videoconference hearing to clarify what he meant after being informed of this error, raise the inference that the rest of his conclusory hearsay statements in that e-mail-that there was "a sufficient body of evidence" of the charged offense, and he "personally" advised appellant of the immigration consequences-were not probative, persuasive, or entitled to any weight.
We note that when appellant filed his first motion to vacate under section 1473.7, the court denied the motion without prejudice partially because appellant failed to introduce any evidence from the attorney who represented him at the plea hearing, and the court suggested that he obtain such evidence. As a result, Bijev started the e-mail exchange with Howard and the public defender's office to obtain appellant's records. The California Supreme Court has recently clarified, however, that "[a] party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel." (Espinoza, supra, 14 Cal.5th at p. 325.)
We thus conclude the court improperly relied on factually erroneous statements for the truth of the matter in an unsworn e-mail to reject appellant's credibility and deny his motion to vacate. At oral argument on appeal, the deputy attorney general stated the superior court found appellant's claim that he did not meaningfully understand the immigration consequences of the plea was not credible based on the Advisement of Rights form and the statements in Howard's e-mail. The deputy attorney general acknowledged, however, Howard's e-mail erroneously stated the court advised appellant of the immigration consequences when he entered his plea, the e-mail did not contain much affirmative evidence, and it did not establish exactly what Howard told appellant about the immigration consequences.
Given the evidentiary deficiencies surrounding this unsworn e-mail, and appellant's repeated advisements to the court that at least one statement was factually erroneous, we are not bound to give it the deference that the superior court did when it relied upon the statements therein for the truth of the matter to find appellant's declarations and testimony were not credible. We will exercise our independent judgment to determine whether appellant met the burden required to obtain relief under section 1473.7. (Espinoza, supra, 14 Cal.5th at pp. 319-320.)
II. Appellant's Section 1016.5 Motion to Vacate
Appellant's motion to vacate his plea was partially based on section 1016.5. On appeal, he argues that even though there was an immigration advisement in the Advisement of Rights form, the court at the plea hearing failed to comply with section 1016.5 because it did not orally advise him of the immigration consequences when he entered his plea. However, appellant's motion lacked merit under this statute and the court correctly denied it.
A. Statutory Duty to Advise
Section 1016.5 requires the court to advise a criminal defendant about the immigration consequences of entering his or her plea:
"Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (a), italics added.)
"'Absent a record that the court provided the advisement required' by section 1016.5, subdivision (a), the defendant is 'presumed not to have received' it. [Citation.]" (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 191; see § 1016.5, subd. (b).) "If ... the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization .. ., the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty." (§ 1016.5, subd. (b).)
Relief under this provision "will be granted, however, only if the defendant establishes prejudice. [Citation.] [P]rejudice is shown if the defendant establishes it was reasonably probable he or she would not have pleaded guilty if properly advised. [Citation.]" (People v. Martinez (2013) 57 Cal.4th 555, 559.) "The test for prejudice thus considers what the defendant would have done, not whether the defendant's decision would have led to a more favorable result." (Id. at p. 562.)
It is settled, however, that "[a] validly executed waiver form is a proper substitute for verbal admonishment by the trial court" of the section 1016.5 advisement. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521.) Ramirez held that since a validly executed waiver form has been held as a proper substitute for the trial court's admonishments of a defendant's constitutional rights when entering a plea, "[c]ertainly, constitutionally required mandates are equally as important as those mandated by statute." (Id. at p. 522; see id. at p. 521.) "[T]here is no language in [section 1016.5] requiring verbal advisements by the court." (71 Cal.App.4th at p. 522.) "[T]he legislative purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea and given an opportunity to consider them. So long as the advisements are given, the language of the advisements appears in the record for appellate consideration of their adequacy, and the trial court satisfies itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel, the legislative purpose of section 1016.5 is met." (Ibid., italics added.)
B. Analysis
It is undisputed the trial court did not orally advise appellant of the immigration consequences at the hearing where he pleaded guilty to violating section 273.5, subdivision (a). In his supporting declarations and hearing testimony, appellant acknowledged he initialed and signed the plea form about the terms and conditions of his plea, and he initialed the paragraph with the immigration advisement.
At the hearing on appellant's first motion to vacate, the superior court found this advisement went beyond and clearly satisfied section 1016.5, because the form stated that if appellant was not a citizen, his plea "will result" in immigration consequences, not that it "may have" such consequences as required by section 1016.5, subdivision (a). The immigration advisement in the form satisfied the requirements of section 1016.5, and appellant's motion was properly denied on this ground. "The advisement need not be in the exact language of section 1016.5 and can be in writing. Substantial compliance is all that is required." (People v. Araujo (2016) 243 Cal.App.4th 759, 762.) We conclude there is substantial compliance with section 1016.5 in this case.
III. Appellant's Section 1473.7 Motion to Vacate
Appellant's motion to vacate was also based on section 1473.7, and he argues that even though he signed the Advisement of Rights form, he did not meaningfully understand what the immigration advisement meant, and his error was prejudicial because he would not have entered his plea if he had known his conviction for violating section 273.5 would prevent him from obtaining a green card. Section 1473.7 was enacted to "broaden[] the standards to challenge guilty pleas involving advisements concerning immigration consequences." (People v. Ruiz (2020) 49 Cal.App.5th 1061, 1063.) Furthermore, section 1473.7 applies retroactively, allowing challenges to pleas entered before it was adopted. (People v. Rodriguez (2021) 68 Cal.App.5th 301, 309.)
Section 1473.7, subdivision (a) states that a person "no longer in criminal custody may file a motion to vacate a conviction or sentence" for the following reason:
"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. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1).)
Under this provision, "the trial court may set aside a conviction based on counsel's immigration advisement errors without a '"finding of ineffective assistance of counsel."'" (People v. Ruiz, supra, 49 Cal.App.5th at p. 1067.) "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 any of the grounds for relief specified in subdivision (a). For a motion made pursuant to paragraph (1) of subdivision (a), the moving party shall 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 naturalization." (§ 1473.7, subd. (e)(1), italics added.)
"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.' [Citation.] 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.' [P]rejudical 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.'" (Espinoza, supra, 14 Cal.5th at p. 319; accord, Vivar, supra, 11 Cal.5th at p. 529.)
In reviewing a section 1473.7 motion, "'[a] "reasonable probability" "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility."'" (People v. Soto (2022) 79 Cal.App.5th 602, 610, cited with approval in Espinoza, supra, 14 Cal.5th at pp. 321-322.)
"Prejudicial error may result from 'the moving party's own mistake of law or inability to understand the potential adverse immigration consequences of the plea.' [Citations.] 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. Lopez (2022) 83 Cal.App.5th 698, 713-714, cited with approval in Espinoza, supra, 14 Cal.5th at pp. 321-322.)
"To determine whether there is a reasonable probability a defendant would have rejected a plea offer if he had understood its immigration consequences, courts must 'consider the totality of the circumstances.' [Citation.] '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.' [Citations.] 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. [Citation.] These factors are not exhaustive, and no single type of evidence is a prerequisite to relief." (Espinoza, supra, 14 Cal.5th at pp. 320-321; accord, Vivar, supra, 11 Cal.5th at pp. 529-530.)
"Ties to the United States are an important factor in evaluating prejudicial error under section 1473.7 because they shed light on a defendant's immigration priorities. [Citation.] '[W]hen long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States.' [Citation.] Depending on the strength of a defendant's community ties, 'the prospect of deportation' may be '"an integral part"' or '"the most important part"' of the defendant's 'calculus in responding to certain criminal charges.' [Citation.] Community ties may be established by length of residence; immigration status; lack of connection to the country of origin; connections to family, friends, or the community; work history or financial ties; or other forms of attachment." (Espinoza, supra, 14 Cal.5th at p. 321, italics added.)
"Another consideration is whether alternative, immigration-safe dispositions were available at the time of the defendant's plea. Factors relevant to this inquiry include the defendant's criminal record, the strength of the prosecution's case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney's charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences. [Citations.] These matters can be placed in the record by either party." (Espinoza, supra, 14 Cal.5th at p. 323.)
"[W]hile the probability of obtaining a more favorable result at trial may be one factor a court considers in determining prejudice, it is not controlling or necessarily even the most important factor courts consider. [Citations.] Indeed, the United States Supreme Court has declared that 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.'" (People v. Lopez, supra, 83 Cal.App.5th at pp. 714-715, quoting Lee v. United States (2017) 582 U.S. __, __ [137 S.Ct. 1958, 1967].)
"A defendant must provide '"'objective evidence'"' to corroborate factual assertions. [Citation.] 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." (Espinoza, supra, 14 Cal.5th at p. 321; accord, Vivar, supra, 11 Cal.5th at pp. 530-531.) "Objective evidence of a defendant's community ties includes facts provided by a defendant's declaration or declarations from family members, friends, colleagues, community members, or other acquaintances." (Espinoza, supra, at p. 321, italics added.)
"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. [Citation.] '"[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citation.] When courts engage in independent review, they must give deference to the trial court's factual determinations if they are based on '"'the credibility of witnesses the [superior court] heard and observed.'"' [Citation.] 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." (Espinoza, supra, 14 Cal.5th at pp. 319-320; accord, Vivar, supra, 11 Cal.5th at pp. 527528.)
B. Vivar
In Vivar, supra, 11 Cal.5th 510, the court held that while the moving party is not required to prove ineffective assistance for relief under section 1473.7, the defendant must "corroborate such assertions with '"objective evidence."' [Citation.] That's what [the defendant] has done here." (Vivar, supra, 11 Cal.5th at p. 530.)
"Time and again, the record readily conveys how [the defendant] would have considered his immigration status 'the most important part' of his decision to plead. [Citation.] [The defendant] was brought to this country at age six as a lawful resident, and he attended schools, formed a family, and remained here for 40 years. At the time of his plea, he had two children, two grandchildren, and a wife, all of whom are citizens and all of whom resided in California. By the time he was deported, his wife was undergoing radiation treatment for a thyroid condition. By contrast, [the defendant] had virtually no ties to Mexico, spoke Spanish 'like an American,' and found it 'difficult to function in Mexican society because people treat [him] like an outsider.' Trial counsel's recollection and contemporaneous notes reflect that [the defendant] was indeed concerned about the 'consequences' of his plea. All of these constitute contemporaneous objective facts that corroborate [the defendant's] concern about the immigration consequences of his plea options. [Citation.] [¶] ... [¶] ... In our view, these objective and contemporaneous facts corroborate, in a most convincing way, the statement in [the defendant's] declaration that he 'would never have plead[ed g]uilty' if his attorney had informed him of the plea's consequences." (11 Cal.5th at pp. 530-531.)
Vivar acknowledged the trial court rejected the credibility of the defendant's supporting declaration but held the appellate court should not have deferred to the trial court's factual findings because those findings were "based entirely on a cold record." Vivar held "[a]n appellate court should instead review such findings independently where, as here, the factual record consists entirely of written documents." (Vivar, supra, 11 Cal.5th at p. 533.)
Vivar held the section 1016.5 advisements in the defendant's plea form, while consistent with the statutory requirements, "did not mitigate the prejudice from counsel's deficient immigration advice. What the plea form stated was that deportation was a possibility. [Citation.] The problem for [the defendant], though, was that deportation in these circumstances was mandatory-and when he accepted the plea deal, he remained unaware of that crucial fact. [Citation.] In light of [the defendant's] extensive ties to the United States, the generic advisements in the plea form do not undermine our conclusion that he was prejudiced by counsel's failure to inform him that his plea would result in his deportation." (Vivar, supra, 11 Cal.5th at p. 533, italics added.)
C. Espinoza
In Espinoza, the Supreme Court reaffirmed the standards set forth in Vivar and held the defendant in that case met his burden to establish prejudicial error and obtain relief under section 1473.7 based on his supporting evidence, including his own sworn declaration. The evidence showed the defendant "migrated from Mexico to Northern California in 1981, when he was 13 years old. After arriving in Oroville, he earned wages as a farmworker to support his parents and siblings. In 1986, when [he] turned 18, he became a lawful permanent resident. When [he] was 22 years old, he married Sandra Rose. The couple had six children together. [The defendant's] wife and children are United States citizens and have resided in California for their entire lives. [His] elderly parents, eight siblings, grandchildren, and sons-in-law also live in the United States and are either United States citizens or lawful permanent residents. [The defendant] has now lived in the United States for over four decades." (Espinoza, supra, 14 Cal.5th at p. 317.)
In 2003, the defendant and several others were arrested "following an investigation into suspected methamphetamine manufacturing. During the proceedings, it was undisputed that [he] had no prior criminal history. Eventually, [the defendant] pleaded no contest to conspiracy (§ 182, subd. (a)(1)), felony child abuse (§ 273a, subd. (a)), controlling property to manufacture a controlled substance (Health &Saf. Code, § 11366.5, subd. (a)), and possession of a controlled substance (id., § 11350, subd. (a))." (Espinoza, supra, 14 Cal.5th at p. 318.) He was placed on probation for five years and ordered to serve 365 days in jail. (Id. at p. 319.)
At the time of his plea in 2004, the defendant did not speak English, and his attorney used a Spanish-speaking assistant to communicate with him before his plea, who told the defendant "to plead no contest and 'everything was going to be fine.' [The defendant] never discussed the immigration consequences of the plea with his attorney, who did not advise him that pleading to these charges would put him in danger of losing his permanent resident status, being deported, and being barred from reentering the United States. It appears he relied on the reassurance of his attorney's assistant that, if he pleaded no contest, 'everything was going to be fine.'" (Espinoza, supra, 14 Cal.5th at p. 318.)
At the plea hearing, the court read the section 1016.5 advisement that if he was not a citizen, his conviction "'may have'" certain immigration consequences. The defendant declared he "'took the warning to be a general one that the court had to give everyone who pleads guilty. I did not understand it to have applied to me as a legal permanent resident who was in the United States legally, my attorney at the time did not mention to me that my plea would have immigration consequences.' It appears the court made no further inquiry into [the defendant's] understanding or offer to answer any questions he might have had. He asserts that if he had known, he would not have accepted the plea and would instead have taken the case to trial or agreed to a longer sentence in exchange for an immigration-safe plea." (Espinoza, supra, 14 Cal.5th at p. 318.)
The defendant filed a section 1473.7 motion to vacate his convictions after he learned for the first time in 2015 that his plea "put him at risk of losing his permanent resident status and being deported . . ., when he was detained by federal immigration authorities at the airport after a return flight to the United States." (Espinoza, supra, 14 Cal.5th at p. 316.) The defendant declared his plea attorney never informed him of the immigration consequences of his plea, and he would not have accepted the terms of the plea bargain if he had been so informed. (Id. at pp. 316-317.) The trial court's denial of the defendant's section 1473.7 motion was affirmed on appeal, based on a finding he "had not adequately corroborated his claim that immigration consequences were a paramount concern at the time of his plea." (Espinoza, at p. 317.)
Espinoza held the defendant's supporting evidence met the burden to establish "[he] did not meaningfully understand the immigration consequences of his plea" as required by section 1473.7. (Espinoza, supra, 14 Cal.5th at p. 320.)
"Although the trial court provided a general advisement under section 1016.5 that his conviction may have immigration consequences, [his] attorney never advised him that pleading no contest to the charges at issue would result in his deportation. After his conviction, rather than living in hiding, [the defendant] started his own business, joined community organizations, and became well-known in his local community. Moreover, he took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status." (Ibid., italics added.)
The defendant's evidentiary showing also established prejudicial error under section 1473.7. "Applying our independent judgment, we weigh all relevant circumstances, with no single factor being dispositive in our consideration of the totality ...." (Espinoza, supra, 14 Cal.5th p. 321.) Espinoza held the defendant's "[t]ies to the United States" were "an important factor in evaluating prejudicial error under section 1473.7 because they shed light on a defendant's immigration priorities. [Citation.] ... Community ties may be established by length of residence; immigration status; lack of connection to the country of origin; connections to family, friends, or the community; work history or financial ties; or other forms of attachment. [Citations.]" (Ibid.)
Espinoza held it was erroneous to disregard "[the defendant's] declaration on the basis that it did not constitute objective evidence. We made clear in Vivar that a defendant's declaration is one form of objective evidence relevant to a prejudicial error inquiry." (Espinoza, supra, 14 Cal.5th at p. 322, italics added.) Espinoza further held "a defendant's substantial ties to the United States were an important factor in support of granting relief" and provided "objective" and "compelling" evidence of a defendant's concern "'about the immigration consequences of his plea options,' supporting a finding of prejudicial error." (Ibid.)
"[The defendant] has spent most of his life in the United States. He came to California when he was 13 years old. At the time of the plea, [the defendant] had lived in California for 23 years. His wife and five children were United States citizens. His parents and siblings lived in the United States. He was the financial provider for his family. As [the defendant] puts it, '[e]verything important in his life' at the time he entered his plea 'was in the United States.' [Citation.] [The defendant's] deep and longstanding ties are undisputed and weigh in favor of finding that he would have considered immigration consequences to be of paramount concern in deciding whether to accept a plea agreement.
"After [the defendant] accepted the plea and served jail time, he returned home to care for his family and community. He became the caregiver for his elderly parents who suffer from severe medical conditions. He ran his own business to provide for his family. He volunteered, went to church, and took part in numerous community organizations. These facts lend credence to [the defendant]'s assertion that his community ties were important to him at the time of his plea. [¶] ... [¶]
"In sum, a defendant's deep and long-standing ties to the United States are among the totality of circumstances that can support an inference that immigration consequences were of paramount concern at the time of the defendant's guilty plea. [The defendant] has demonstrated his ties to the United States, and those ties weigh in favor of a finding of prejudicial error." (Espinoza, supra, 14 Cal.5th at p. 323, italics added.)
In determining prejudice, Espinoza also considered "whether alternative, immigration-safe dispositions were available at the time of the defendant's plea." (Espinoza, supra, 14 Cal.5th at p. 323.)
"[The defendant] had no prior criminal history at the time of his plea. This fact is relevant because a defendant without an extensive criminal record may persuasively contend that the prosecutor might have been willing to offer an alternative plea without immigration consequences. [Citation.] [¶] Additionally, [the defendant] presented evidence from an immigration attorney that there were alternatives the prosecution could have offered that would not have resulted in mandatory deportation." (Id. at p. 324.)
Espinoza acknowledged that while "the key question under section 1473.7 is '"what the defendant would have done"' [citation], a relevant consideration is the probability of obtaining a more favorable outcome [citation], and that inquiry is informed by whether the defendant would have had reason 'to expect or hope' that a plea deal without immigration consequences 'would or could have been negotiated' [citation]." (Espinoza, supra, 14 Cal.5th at p. 324.) The defendant's lack of a criminal record, combined with the declaration of the immigration attorney, supported his assertion "that he had reason to expect or hope for a plea bargain without immigration consequences." (Ibid.) "This enhances the 'credibility of [the] defendant's claim' that he 'would have rejected the plea bargain' had he been properly advised." (Ibid.)
"Vivar did not suggest that the circumstances of that case constitute minimum requirements for establishing prejudicial error. A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel. [Citation.] Nor is a defendant required 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 [citation], and no specific kind of evidence is a prerequisite to relief. As noted, the burden rests with the defendant to establish entitlement to relief. In addition to submitting declarations, both parties are entitled to request an evidentiary hearing. [Citation.] The more robust and inclusive a record, the greater the opportunity for effective persuasion and meaningful judicial review. And the inquiry into a defendant's state of mind may often involve the weighing of credibility and circumstantial evidence." (Espinoza, supra, 14 Cal.5th at p. 325, italics added.)
Espinoza concluded the totality of the circumstances established the defendant had "shown a reasonable probability that he would have rejected the plea and either gone to trial or sought a different, immigration-safe bargain if he had understood the consequences of the plea. [The defendant's] deep and long-standing ties to the United States, along with those to his family and community, support the conclusion that immigration concerns would have been paramount to him at the time of his plea. [Citation.] In addition, [the defendant's] lack of criminal history at the time of his plea and the immigration attorney's declaration identifying alternative immigration-safe dispositions suggest that he had reason to expect or hope for a different plea agreement without immigration consequences." (Espinoza, supra, 14 Cal.5th at p. 325.)
In reaching this conclusion, Espinoza found it "significant" that the Attorney General agreed the defendant was entitled to relief, because it suggested "that any remand for further development of the record will serve only to delay the relief to which both parties now agree [the defendant] is entitled. While a remand for reconsideration and the development of the record may be advisable in other cases, we are satisfied that the evidence here establishes a reasonable probability that [the defendant] would have rejected the plea if he had understood its immigration consequences." (Espinoza, supra, 14 Cal.5th pp. 325-326, italics added.)
IV. Analysis of Appellant's Section 1473.7 Motion
We conclude appellant met his burden to establish he did not meaningfully understand the immigration consequences of his plea as required by section 1473.7. (Espinoza, supra, 14 Cal.5th at p. 319.) As suggested by Espinoza, however, it is appropriate to remand the matter for reconsideration and development of the record as to whether that error was prejudicial. (Id. at p. 326.)
A. Appellant Did Not Meaningfully Understand the Immigration Consequences of His Plea
The first question is whether appellant met his burden to establish "he did not meaningfully understand the immigration consequences of his plea." (Espinoza, supra, 14 Cal.5th at p. 319; accord, Vivar, supra, 11 Cal.5th at p. 529.) "A defendant must provide '"'objective evidence'"' to corroborate factual assertions. [Citation.] 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." (Espinoza, supra, 14 Cal.5th at p. 321; accord, Vivar, supra, 11 Cal.5th at pp. 529-531.)
In denying appellant's motion, the superior court partially relied upon the admonishment concerning immigration rights in the plea form, and that the interpreter signed the declaration stating she translated the contents and appellant understood her. At the plea hearing, the court did not read the section 1016.5 advisement or even refer to the immigration paragraph in the plea form, but instead asked appellant whether he had sufficient time to discuss the form with his attorney, and appellant said yes.
In his motion to vacate his plea, appellant never disavowed that he initialed the immigration advisement and signed the plea form, but argued he did not meaningfully understand the advisement. In his declaration, appellant stated he remembered "my counsel going over the form with me yet everything happened very fast" and he did not "full[y] process and meaningfully understand the immigration consequences that I could not receive a green card." "I did not read and I did not fully understand the form that I initialed because everything happened very fast. However, the attorney at that time I remember reading the form fast and telling me where to initial and sign." His attorney "explained the form to me [and] the interpreter would translate what the attorney would say. I do not have any memory of being told what the immigration consequences I could face in open court." Appellant declared he was "nervous, afraid and a little confused" when he was in the courtroom, "there were other cases being heard and it was hard for me to fully understand what the interpreter was explaining. At the time I did not fully and meaningfully understand what the immigration consequences were and how they would affect me in the future." "... I did not read the declaration everything happened very fast and I was nervous. I was confused and scared. I do not remember the exact words the attorney was telling me. However, I did not know that I could face deportation and never receive legal permanent residence to stay with my U.S. citizen family."
Appellant's testimony at the evidentiary hearing was consistent with his declaration-that he initialed and signed the Advisement of Rights form, but he did not understand what he was signing. Appellant testified the interpreter translated what the attorney said, but "it was not too clear," and it was "too quick. I didn't really understand." The interpreter helped him "put initials, but the whole document was not read to me. And I remember her telling me where to initial, where to not, where to sign. There was no question about immigration." "The attorney came into the room. ... He came in the room in order to help me out. And he left to do other cases and the interpreter told me where to initial and where not." (Italics added.)
Appellant testified his attorney was "indicating the process, but not explaining everything on the document. It was very confusing because the attorney and the interpreter were speaking at the same time." (Italics added.) "The attorney told the judge that he went over the forms with me. I was there with the interpreter. I did not understand everything that I was asked. I was helped to fill out, but not to comprehend it." "I was asked if I was helped. That was my answer to complete these documents that you're seeing right now. I was helped and I answered the judge that I was helped. [¶] ... [¶] Whether I comprehended this, I was confused." (Italics added.)
While the immigration advisement in the Advisement of Rights form satisfied section 1016.5, appellant met his burden to show his own subjective error: that he did not meaningfully understand his plea would subject him to harsh immigration consequences. (People v. Alatorre (2021) 70 Cal.App.5th 747, 769; People v. Camacho (2019) 32 Cal.App.5th 998, 1009; People v. Mejia (2019) 36 Cal.App.5th 859, 870.) Appellant believed the court's questions at the plea hearing were about whether the interpreter helped him fill out the form, and not whether he understood what the form stated, because his attorney and the court never advised him that pleading guilty to the charged violation of section 273.5 would result in harsh immigration consequences, including removal.
The court rejected appellant's credibility and agreed with the People that appellant "certainly has memory of a number of things that happened back there," and he could recall facts that "helped his case," but "his memory was bad" when it didn't help. Appellant declared and testified he remembered the possible sentence he faced, that he was put on probation and had to serve time, but he did not remember being advised about the immigration consequences that were stated in the plea form because both his attorney and interpreter were talking at the same time, presumably at a meeting before he entered the plea. The record suggests a possible explanation for his recollection: at the January 2005 plea hearing, the court expressly advised appellant he was waiving his right to a trial and to confront witnesses by pleading guilty, and he was being placed on probation subject to specific terms and conditions, whereas it never read the section 1016.5 advisement or even referred to the immigration advisement in the plea form.
As in Espinoza, appellant's actions after the plea were consistent with his subjective belief he was not facing any immigration consequences as a result of his conviction. Over 15 years after his plea, "rather than living in hiding," appellant and his wife filed the appropriate documents with the United States Citizenship and Immigration Services, Department of Homeland Security, for him to obtain an immigrant visa as the spouse of a citizen, "which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions" would subject him to deportation. (Espinoza, supra, 14 Cal.5th at p. 320.) "It goes without saying that someone who understood his criminal conviction made him automatically deportable would not voluntarily contact immigration authorities and advise them of his presence in the country. This alone demonstrates it is more likely than not that [the moving party] failed to 'meaningfully understand' the consequences of his plea." (People v. Alatorre, supra, 70 Cal.App.5th at p. 770, cited with approval in Espinoza, supra, at p. 320.)
B. Prejudice
The next question is whether appellant met his burden to show "that his misunderstanding constituted prejudicial error. '[P]rejudical 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.'" (Espinoza, supra, 14 Cal.5th at p. 319; accord, Vivar, supra, 11 Cal.5th at p. 529.)
Appellant's supporting evidence, consisting of declarations, hearing testimony, and biographical history, addressed some, but not all, of the factors set forth by the Supreme Court in Espinoza and Vivar to consider whether he sufficiently corroborated his claim that immigration consequences were, at the time of his plea, his paramount concern so that his error was prejudicial. However, appellant's evidence was not inconsistent with these factors. He has lived in the United States since 2001, when he was approximately 19 years old. Appellant declared and testified he had lived, worked, and paid taxes in this country since his arrival, and there is no evidence he went back to Mexico. However, he did not describe when or where he worked, and whether he had other ties to his community.
When appellant entered his plea in the domestic violence case in 2005, he was approximately 23 years old and there is no evidence he had any prior convictions. Appellant was already the father of three children who were born in the United States, and the children's mother was a citizen. While she was also the victim in the domestic violence case, she appeared at the plea hearing and stated she was married to him, and the court granted her request and changed the existing no-contact order "from a stay away to do not harm, molest, abuse or [harass]" her. (Italics added.)
Appellant testified the domestic violence offense arose from "a verbal confrontation" with his wife. The record is otherwise silent concerning the nature and circumstances of his arrest and the charge of a felony violation of section 273.5, subdivision (a). As explained above, while the situation may have arisen from a verbal disagreement, there would have been evidence of a traumatic injury, such as a bruise, to establish a factual basis for violating section 273.5. It cannot be determined on this record whether an immigration-neutral plea would have been legally available. However, there is no evidence he had a prior conviction before he was charged in the domestic violence case. Instead, he was placed on probation, and he was reinstated on probation after violating the terms. In his declaration, however, appellant stated that if he had known his plea would result in future immigration consequences, "I would have fought the case in front of the jury and I would have also consulted with an immigration attorney to discuss different options." (Italics added.)
Such evidence could be developed on remand if appellant or his wife submit a sworn declaration or appear at a hearing to testify about the circumstances of his arrest.
In 2021, appellant was 39 years old, married to the same woman who was the victim in the domestic violence case, and they now had five children. She filed the appropriate application requesting appellant receive an immigrant visa as the spouse of a citizen. In connection with that application, appellant consulted counsel and discovered for the first time his domestic violence conviction would prevent him from obtaining the visa, and he filed his motion to vacate.
Appellant declared his entire family was in the United States, his wife and children were citizens, and "we have no place to go in Mexico. We have nothing in Mexico, no house, no job or income. [W]e consider the United States home since I have spent most of my life here." At the evidentiary hearing, appellant testified "[i]f I had known" about the immigration consequences, "I would have never have done" the plea because "my whole family is here in the U.S. They are all here and I ... don't have anybody in Mexico. I would never sign that." On cross-examination, the deputy district attorney questioned whether appellant was more concerned about the potential sentence resulting from his plea and not the immigration consequences. In response, appellant testified: "The time was clear. It's just this that was not," referring to the immigration consequences.
Bravo and Abdelsalam
Espinoza held "a defendant's deep and long-standing ties to the United States are among the totality of circumstances that can support an inference that immigration consequences were of paramount concern at the time of the defendant's guilty plea" to weigh in favor of finding prejudicial error. (Espinoza, supra, 14 Cal.5th at p. 323.) In so holding, the Supreme Court contrasted the long-standing ties of the defendant in Espinoza with those found insufficient in People v. Bravo (2021) 69 Cal.App.5th 1063 (Bravo), review granted December 15, 2021, S272782, and People v. Abdelsalam (2022) 73 Cal.App.5th 654 (Abdelsalam). (Espinoza, supra, 14 Cal.5th at p. 323.)
The California Supreme Court granted review in Bravo and deferred the matter pending the decision in Espinoza. While no further action has been taken in Bravo, Espinoza cited Bravo as a case where the defendant's attempt to show prejudicial error was insufficient under section 1473.7. (Espinoza, supra, 14 Cal.5th at p. 323.)
The facts and circumstances in Bravo and Abdelsalam are markedly different from those presented in the instant case. In Bravo, supra, 69 Cal.App.5th 1063, review granted, the defendant pleaded guilty in 1997 to felony domestic violence (§ 273.5, subd. (a)) and child cruelty (§ 273a, subd. (a)) and was placed on probation. The victims were his girlfriend and their infant child. He later filed a section 1473.7 motion to vacate his pleas and convictions, and it was denied. (Bravo, at p. 1067.)
Bravo held that compared to Vivar, the factors to establish prejudicial error were "conspicuously absent" in the case. (Bravo, supra, 69 Cal.App.5th at p. 1074, review granted.) The contemporaneous evidence showed the defendant's priority at the time of the plea was to avoid a custodial term so he could keep his job, and "he elected to take the plea bargain to obtain release and return to his girlfriend and son and resume his job. There is nothing to substantiate his claim that had he known of the ultimate immigration consequences he would have refused the plea bargain." (Id. at p. 1075.)
Bravo further held the defendant had only been in the United States for four and one-half years at the time of his guilty plea, and he never claimed "that his relationship with his girlfriend and son would lead him to decline a plea if he had known the ultimate immigration consequences of the plea; moreover, the offenses making him a candidate for mandatory deportation were domestic violence and child cruelty against those very persons. His declaration simply claims he elected to plead and get out of jail immediately to return to support them and avoid ICE." (Bravo, supra, 69 Cal.App.5th at p. 1076, review granted.)
Bravo concluded "the events to which [the defendant] pleaded guilty in 1997 were domestic violence and child cruelty felonies against that very girlfriend and son, undercutting any claim now that he would have put himself in immediate peril of deportation in 1997 by a pending ICE sweep at the jail in order to go to trial in an attempt to avoid later immigration consequences." (Bravo, supra, 69 Cal.App.5th at p. 1077, review granted.)
In Abdelsalam, supra, 73 Cal.App.5th 654, the defendant arrived in the United States "on a fiance visa," but secretly planned to divorce his girlfriend once he married her and gained citizenship. His girlfriend discovered his plan, ended their relationship, and reported the defendant to immigration authorities. After the defendant assaulted her with a knife, he was charged with multiple offenses and faced 10 years in prison. The defendant pleaded no contest to one count and was placed on probation for five years. At the plea hearing, the court specifically advised defendant that he "'will be'" subject to immigration consequences if he was not a citizen as a result of his plea. The defendant said he understood, but he was "'just going to wait for immigration.'" He was later detained by federal immigration authorities and filed a section 1473.7 motion to vacate his plea, and it was denied. (Id. at pp. 658-660.)
Abdelsalam held the defendant failed to establish prejudicial error because he "had just arrived here. And he was admitted on a fraudulently procured fiance visa, with an intent to gain citizenship by deception. In the short time he was here, [he] engaged in conduct that got him arrested for stalking, assaulting, burglarizing, and threatening the person who had made his presence here possible. She wanted him deported. Deportation agents literally sat in on his preliminary hearing. He faced 10 years in prison, and now claims he would have somehow avoided deportation and rejected the plea agreement that resulted in only a few months of additional custody." (Abdelsalam, supra, 73 Cal.App.5th at p. 665.)
C. Conclusion
In contrast to Bravo, there is no evidence appellant's most important consideration at the time of the plea was to avoid custodial time. The People expressly asked appellant this question at the evidentiary hearing, and appellant testified that his possible sentence was clear but the immigration consequences were not, and he would not have entered the plea if he had understood those consequences. Unlike Abdelsalam, there is no evidence appellant fraudulently induced his wife to marry him and/or file the application for a visa over 15 years after his conviction.
Appellant's ties with this country are much stronger compared to the facts in Bravo and Abdelsalam, even on the limited record before this court. Appellant had lived and worked in the United States for approximately four years at the time of his plea, and he had three children with his wife. While she was identified as the victim in the charged violation of section 273.5, she appeared at appellant's plea hearing, stated they were now married and she was not concerned for her safety, and the court granted her request to change the protective order to eliminate the stay-away provisions and only state that he could not "harm, molest, abuse or [harass]" her. In 2021, appellant and his wife were still married and the parents of five children, and she filed the application for him to obtain an immigrant visa as the spouse of a citizen.
In reviewing the totality of the circumstances, appellant's supporting evidence somewhat addressed his ties to the United States, the importance he placed on avoiding deportation, and his priorities in seeking a plea bargain. The limited record, however, did not fully develop these matters as in Vivar and Espinoza, and is silent as to whether appellant had reason to believe an immigration-neutral negotiated disposition was possible, the "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." (Espinoza, supra, 14 Cal.5th at p. 320; accord, Vivar, supra, 11 Cal.5th at pp. 529-530.) Vivar and Espinoza held "[t]hese factors are not exhaustive, and no single type of evidence is a prerequisite to relief." (Espinoza, supra, at p. 320; see Vivar, supra, at pp. 529-530.)
We decline to find appellant failed to meet his burden because appellant's second motion to vacate was filed shortly after Vivar was decided. While this case was pending on appeal, Espinoza was filed and reaffirmed Vivar, and held "a remand for reconsideration and the development of the record may be advisable in other cases" where the People do not concede error. (Espinoza, supra, 14 Cal.5th at pp. 325-326.)
After Espinoza was decided, this court requested the parties to address whether remand of this case would be appropriate. Appellant asserted he had met his burden for relief under section 1473.7, but agreed remand would be an appropriate alternative disposition.
The People stated that in contrast to Espinoza, it was not conceding prejudicial error in this case and argued Espinoza was factually distinguishable because the superior court properly relied on Howard's e-mail to find appellant's claim of prejudicial error was not credible. We have already explained the reasons why we have rejected any reliance on Howard's e-mail.
In the alternative, the People stated remand of this matter for further development of the record would be an appropriate remedy if this court disagreed with its position.
We conclude appellant met his burden to show he did not meaningfully understand the immigration consequences of his plea, but remand is appropriate for further development of the record to address whether his error was prejudicial, and for the superior court to consider the merits of a renewed motion with appropriate supporting evidence, based on the Supreme Court's decisions in Vivar and Espinoza.
DISPOSITION
The court's order denying appellant's section 1016.5 motion to vacate is affirmed.
The court's order denying appellant's section 1473.7 motion to vacate is reversed and the matter remanded for further appropriate proceedings consistent with Vivar and Espinoza.
I CONCUR: MEEHAN, J.
SNAUFFER, J., Concurring.
I concur with the disposition remanding this matter for further hearing, particularly in light of recent Supreme Court authority which did not exist at the time of the trial court's ruling. I disagree only with that portion of the majority opinion which holds that the e-mail from the plea attorney, Sean Howard, was not entitled to any weight. While I can agree that by itself it would be insufficient to support the notion that Flores meaningfully understood the immigration consequences of his plea, in the absence of an objection, I believe the court was entitled to consider it, along with all the other evidence.