Opinion
F084272 F084329
06-14-2023
THE PEOPLE, Plaintiff and Respondent, v. HECTOR CERVANTES HERNANDEZ, Defendant and Appellant.
Richard G. Cenci and Corina J. Aguirre for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ian P. Whitney, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Nos. CF96569589, CF95532051 Jonathan M. Skiles, Judge.
Richard G. Cenci and Corina J. Aguirre for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ian P. Whitney, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Hector Cervantes Hernandez appeals the denial of his November 2021 motion under Penal Code section 1473.7, subdivision (a)(1) to vacate his 1995 and 1996 no contest pleas. The superior court denied the motion on the ground it was untimely and did not address the motion's merits.
Unlabeled statutory references are to the Penal Code.
Respondent concedes the superior court erred in interpreting and applying the timeliness provisions in section 1473.7, subdivision (b) and states the record demonstrates Hernandez acted with reasonable diligence and, therefore, the motion must be deemed timely under subdivision (b)(1) of section 1473.7. Respondent contends the matter should be remanded for further proceedings in which the superior court decides whether Hernandez suffered a "prejudicial error" and, thus, is entitled to relief under section 1473.7, subdivision (a)(1).
Under the circumstances of this case and the standard of independent review adopted by the California Supreme Court in People v. Vivar (2021) 11 Cal.5th 510 (Vivar) and confirmed in People v. Espinoza (2023) 14 Cal.5th 311 (Espinoza), we conclude it is appropriate for this court to review the cold record presented below and decide the merits of Hernandez's section 1473.7 motion. First, we find Hernandez has carried his burden of proving it is more likely than not that he did not meaningfully understand and accept the immigration consequences of his pleas. Second, we find there is reasonable probability that Hernandez would have rejected the pleas if he had correctly understood the adverse immigration consequences. This finding is corroborated by objective evidence of Hernandez's strong personal ties to his family and community.
We therefore reverse the order dismissing the section 1473.7 motion and remand with directions to grant the motion.
BACKGROUND
Personal Details
Hernandez was born in Mexico in March 1975. In December 1978, when he was three years old, Hernandez was admitted to the United States as an immigrant at San Ysidro. In May 1985, Hernandez received his first communion at a church in Selma. During his freshman year of high school, his family moved to Fowler. Hernandez graduated from Fowler High School in June 1993. While there, Hernandez played football and participated in track and field as a shot putter and discus thrower. His senior year he was the captain of the track team and qualified to compete in the discus at the state championship track meet. He also was selected to play in the "City-County Football Game." After high school, he attended Kings River Community College for five semesters.
One of Hernandez's grandfathers was born in the United States and his parents, siblings, grandparents, and a great grandfather are United States citizens. Hernandez's declaration states he grew up as an American, Mexico is not his home, he knows nothing about living in Mexico, and he has no family or friends there.
1995 Case
On April 12, 1995, the Fresno County Superior Court filed an information charging Hernandez with possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378); possession of marijuana for sale (count 2; Health & Saf. Code, § 11359); misdemeanor possession of marijuana (count 3; Health & Saf. Code, § 11357, subd. (b)); and possession of methamphetamine (count 4; Health & Saf. Code, § 11377.)
On May 11, 1995, pursuant to a negotiated plea agreement, Hernandez pleaded no contest to count 1, felony possession of methamphetamine for sale, and all other counts were dismissed. That day, Hernandez signed and initialed a form that advised him of various rights and consequences of a plea of guilty or no contest. Hernandez speaks English fluently and no interpreter was used during the proceedings. Item 10 of the form stated: "I understand that if I am not a citizen of the United States a plea of Guilty or No Contest could result in deportation, exclusion from admission to this country, and/or denial of naturalization." The trial court sentenced Hernandez to three years' probation, 270 days in jail with time suspended, and 150 hours of community service.
1996 Case
At approximately 11:40 p.m. on July 4, 1996, Hernandez was driving a car, turned sharply into an apartment complex, and accelerated toward two adults and three children setting off fireworks. They jumped out of the car's path and avoided being hit. An officer of the Fowler Police Department, who had begun following Hernandez before he turned into the apartment complex, activated his overhead lights and pulled Hernandez over. Hernandez ran from the vehicle. Before being taken into custody, Hernandez threw two bricks toward the officer, hitting the patrol vehicle. With the assistance of a police dog, Hernandez was apprehended. The arresting officer's report stated Hernandez smelled strongly of alcohol and appeared to be extremely drunk or high. A subsequent probation report stated that no one was injured in the incident, except Hernandez "after he got chewed up by K-9 Jacco."
Four days later, a felony complaint was filed against Hernandez, charging him with seven counts, which included assaults with deadly weapons (i.e., the bricks and vehicle), driving under the influence, and driving a vehicle with a blood-alcohol level of 0.08 percent or more. In September 1996, the Fresno County District Attorney filed a first amended information charging appellant with premeditated attempted murder of a peace officer (count 1; §§ 664/187); two counts of assault with a deadly weapon (i.e., the bricks) upon a peace officer (counts 2 & 3; § 245, subd. (c)); resisting an executive officer (count 4; § 69); assault with a deadly weapon (i.e., an automobile) upon two adults and three children (count 5; § 245, subd. (a)(1)); misdemeanor driving with a blood-alcohol level of 0.08 percent or more (count 6; Veh. Code, § 23152, subd. (b)); misdemeanor driving under the influence (count 7; Veh. Code, § 23152, subd. (a)); and misdemeanor vandalism (count 8; § 594, subd. (b)(3)).
On October 3, 1996, pursuant to a negotiated plea agreement, Hernandez pleaded no contest to counts 2, 3, and 6, and all remaining counts were dismissed. Hernandez was represented by Attorney Jack Weiss. That day, Hernandez and his attorney signed a felony plea form that included an advisement stating: "If I am not a citizen my change of plea could result in my deportation, exclusion from admission to the United States, and/or a denial of naturalization."
On October 30, 1996, the superior court held "the hearing on the report of the probation department and pronouncement ofjudgment in the new case, as well as the violation of probation on the earlier case." Hernandez was represented at the hearing by Deputy Public Defender Stephen Quade. On the 1996 charges, the court sentenced Hernandez to an aggregate term of four years and one month. The court also found Hernandez in violation of probation and sentenced him to one year four months in state prison, to run concurrent with the sentence on the 1996 charges. The reporter's transcript contains no discussion of the immigration consequences of the no contest plea to the 1996 charges or the related probation violation. Removal Proceedings
In the mid- 1990's, before the United States Supreme Court decided Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), defense counsel had no Sixth Amendment obligation to affirmatively advise a defendant of the immigration consequences of a conviction. (See Chaidez v. United States (2013) 568 U.S. 342, 353.)
In November 1998, while Hernandez was residing at a processing center in El Centro, California, the Immigration and Naturalization Service issued him a notice to appear in removal proceedings. The notice stated Hernandez was subject to removal because his October 1996 conviction of assault with a deadly weapon in violation of section 245, subdivision (c) was an aggravated felony. In December 1998, an immigration judge issued an order directing Hernandez's removal from the United States to Mexico. Before his removal, Hernandez had been a lawful permanent resident of the United States.
After his removal, Hernandez returned to the United States. He married and had a son and a daughter, who were 16 and 14 years old, respectively, in June 2021. He worked in Fresno County for nearly 20 years. His involvement in the Fowler community is described in letters from the city's mayor, its chief of police, high school coaches, and others. Those details need not be set forth in this opinion.
In May 2019, Hernandez was placed in removal proceedings. His application for asylum was denied by the immigration court and he was removed to Mexico in June 2019. Hernandez's April 2022 declaration states he is living and working in San Luis Rio Colorado, in the State of Sonora, across the border from Arizona. That declaration also asserts that while in Mexico, he began researching his immigration options and read about the possibility of having his convictions vacated because the public defenders did not speak to him about immigration consequences.
Payroll receipts submitted with Hernandez's request for appointed appellate counsel show that his normal daily salary as a mechanic for a company named "Enviroquip" is 335.00 pesos, which is about $16.55 when the exchange rate is 20.242 pesos per U.S. dollar. A payroll receipt for a seven-day period ending July 3, 2022, shows that, with his normal salary, overtime, and other compensation, the net compensation received by Hernandez was 3,801.72 pesos (approximately, $187.13). Hernandez asserts that after he pays his living expenses, he has nothing left to provide for his family in California.
In May 2020, during the COVID-19 pandemic, Hernandez and his wife prepared a handwritten letter to the Fresno County Superior Court requesting files on his cases and his wife sent the letter to the court. It took six months to get copies of the records from the court and the copies were received piecemeal.
Section 1473.7 Motion
In April 2021, Hernandez's wife found an attorney, Richard Cenci, to prepare and file a motion for postconviction relief.
On November 9, 2021, Hernandez's attorney filed a section 1473.7 motion to vacate the May 1995 and October 1996 pleas. The motion was supported by declarations from the attorney and Hernandez. Among other things, Hernandez's declaration stated that, "because I am in Mexico, I would ask the court to allow me to appear by Zoom."
On November 17, 2021-before an opposition was filed and without holding a hearing-the superior court filed an order stating: "Mr. Hernandez's motion is dismissed as untimely." The rationale for this conclusion was that "Mr. Hernandez has been on notice the government of the United States deemed his convictions to be for [] deportable offenses for nearly twenty-three years. Indeed, he was actually deported for those very convictions nearly twenty-three years ago. [¶] Waiting for over two decades to file the present motion demonstrates a failure to exercise reasonable diligence and renders Mr. Hernandez's motion untimely." This determination was clearly erroneous because it contradicted the timeliness provisions in section 1473.7, subdivision (b) and existing case law. (See People v. Alatorre (2021) 70 Cal.App.5th 747 (Alatorre); People v. Perez (2021) 67 Cal.App.5th 1008 (Perez).)
On November 24, 2021, Hernandez filed a motion to reconsider, asserting he was entitled to a hearing and his motion was timely. At a March 24, 2022, hearing, the superior court stated its earlier order concluding the motion was not timely had been set aside and "we need to have a hearing on whether or not this motion is timely." The court also stated that if the motion was found to be timely, a second hearing could be set for the substantive merits of the motion. After discussing availability with the deputy district attorney and Hernandez's counsel, the court set the hearing on the issue of timeliness for April 7, 2022.
During the April 7, 2022 hearing, the superior court acknowledged that section 1473.7 first became effective on January 1, 2017, and stated:
"The Court believes that the plain language of 1473.7(b)(2) would at least trigger a[n] obligation on his part to use due diligence beginning January 1, 2017. That would have been five years prior to when the motion was actually filed. If the Court was to use the even-more lenient standard when he was deported the second time that was 2019, and approximately three years from when he was deported to when he filed the motion -- not quite, but close.
"And I will not be surprised if this code section doesn't get tinkered with some more in Sacramento and things get changed, but this Court believes under the plain reading of 1473.7(b)(2) that Mr. Hernandez had an obligation to exercise reasonable diligence in bringing this motion. That includes exercising reasonable diligence in discovering that motion was available to him, and the Court believes five years is not a reasonable period of time to wait, nor to file that motion. [¶] Quite frankly the Court wouldn't find the three years from the last deportation a reasonable period of time ...."
The court concluded its ruling by stating: "But anyways, as I stated earlier I don't think it's going to come as a surprise to me or anyone else if this gets changed and we're back here again, but at this time the Court doesn't believe the motion was timely filed and for that reason the Court is denying the motion."
Later in April 2022, Hernandez filed a notice of appeal and a request for certificate of probable cause. His application for appointment of appellate counsel was denied by this court on the ground his income exceeded the limit for appointed counsel.
Hernandez's request for reconsideration of the application also was denied.
DISCUSSION
I. TIMELINESS OF THE MOTION
A. Statutory Text
In 2016, the Legislature enacted section 1473.7. (Stats. 2016, ch. 739, § 1; Perez, supra, 67 Cal.App.5th at p. 1013 [effective date January 1, 2017].) Section 1473.7 contains timeliness provisions, which were substantially changed by the Legislature in 2018. (See Stats. 2018, ch. 825, § 2.) Subdivision (b) of section 1473.7 now reads:
"(1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody.
"(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:
"(A) The moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization.
"(B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate." (Italics added.)
This subdivision became effective on January 1, 2019, and was not changed by the amendments enacted in 2020 or 2021. (See Stats. 2020, ch. 317, § 5; Stats. 2021, ch. 420, § 1.) The latter amendment replaced the phrase "plea of guilty or nolo contendere" in subdivision (a)(1) of section 1473.7 with the broader phrase "conviction or sentence."
B. Case Law Interpreting Timeliness Provisions
In August 2021, about three months before Hernandez filed his section 1473.7 motion and about eight months before the superior court denied the motion, this court issued Perez, supra, 67 Cal.App.5th 1008 to explain the meaning and application of the timeliness provisions in subdivision (b) of section 1473.7.
First, we concluded that if the moving party is no longer in criminal custody and the triggering events specified in subdivision (b)(2)(A) and (B) of section 1473.7 have not yet occurred, the motion must be deemed timely under the mandatory rule in subdivision (b)(1) of section 1473.7. (Perez, supra, 67 Cal.App.5th at p. 1016.)
Second, we concluded that if both triggering events have occurred, "the superior court must determine whether the motion was 'filed with reasonable diligence after the later of' the triggering events. (§ 1473.7, subd. (b)(2).)" (Perez, supra, 67 Cal.App.5th at p. 1016.) This conclusion was limited to cases where the triggering events occurred after January 1, 2017, the effective date of the original version of section 1473.7.
In October 2021, the Fourth District addressed "an issue Perez did not reach: how to analyze whether a petitioner exercised reasonable diligence in cases where the petitioner's triggering events predate section 1473.7." (Alatorre, supra, 70 Cal.App.5th at p. 757.)
Third, we concluded that if the superior court determines the moving party acted with reasonable diligence after the last triggering event, the motion is timely under the mandatory rule in subdivision (b)(1) of section 1473.7. (Perez, supra, 67 Cal.App.5th at p. 1016.) Stated from another perspective, where a moving party acted with reasonable diligence, section 1473.7, subdivision (b)(2)'s exception to the mandatory rule does not apply and the superior court has no authority-discretionary or otherwise-to deem the motion untimely. (Perez, supra, 67 Cal.App.5th at p. 1016.)
Fourth, we concluded that when a superior court determines the moving party did not act with reasonable diligence after the last triggering event, the court must exercise its discretionary authority and decide whether to deem the motion untimely. (Perez, supra, 67 Cal.App.5th at p. 1016; see § 1473.7, subd. (b)(2).) We also concluded the superior court must consider the totality of the circumstances when exercising this discretionary authority. (Perez, supra, at p. 1016.) Thus, "the lack of reasonable diligence does not automatically require the superior court to deem the motion untimely." (Id. at p. 1015.)
The Fourth District's summary of the timeliness provisions in section 1473.7 concludes "that the Legislature created a strikingly generous timeliness standard for immigration-related petitions." (Alatorre, supra, 70 Cal.App.5th at p. 759.) This generosity is in harmony with the legislative findings and declarations made in section 1016.2. (See Vivar, supra, 11 Cal.5th at p. 525 [Legislature directed that courts interpret § 1473.7 consistent with the findings and declarations in § 1016.2].)
C. Respondent's Concession
Respondent states the superior court's denial of Hernandez's motion "should be reversed and remanded for two reasons. First, it appears the court misunderstood its discretion in finding the motion untimely based on appellant's lack of due diligence. Second, the record establishes that appellant was reasonably diligent in filing the motion." While respondent's concession is "significant" (see Espinoza, supra, 14 Cal.5th at p. 325), we nonetheless undertake an independent review of the record to confirm the concession is warranted.
Respondent asserts all the evidence presented supported Hernandez's argument that he was reasonably diligent in pursuing the motion. The facts listed by respondent are "(1) appellant first learned of section 1473.7 when he was deported to Mexico in June 2019; (2) in May 2020, with the help of his wife, appellant filed a hand-written request with the superior court for the records relating to his convictions; (3) it took six months to get copies of the records from the superior court and they were received piecemeal; (4) in April 2021, appellant's wife hired an attorney to prepare and file a motion under section 1473.7; and (5) the motion to vacate appellant's conviction was filed in November 2021." Respondent also noted that Hernandez "was in Mexico at the time and much of the elapsed time occurred during the COVID-19 pandemic."
D. Hernandez Acted with Reasonable Diligence Under the Circumstances
We reviewed the appellate record to confirm the facts enumerated by respondent. The second through fifth of those facts are confirmed by the declarations filed. There is a slight discrepancy in the first fact, which states Hernandez first learned of section 1473.7 when he was deported, instead of after he was deported. Hernandez's declaration does not identify a particular date when he learned of section 1473.7, but states that while in Mexico he began researching his immigration options and read about the possibility of having the convictions vacated because the public defenders did not speak to him about immigration consequences.
The distinction between learning of section 1473.7 when he was deported and learning of it after being deported to Mexico is not critical for purposes of analyzing Hernandez's diligence because we agree with respondent's statement "that the triggering event in this case was [Hernandez's] deportation in June 2019." His deportation provided Hernandez with "[n]otice that a final removal order has been issued" for purposes of section 1473.7, subdivision (b)(2)(B). Thus, by June 2019, both triggering events had occurred, which marks the starting point for evaluating whether Hernandez acted with reasonable diligence. (§ 1473.7, subd. (b)(2); see Perez, supra, 67 Cal.App.5th at p. 1016 [if the defendant acted with reasonable diligence after the last triggering event, the motion is timely under the mandatory rule in § 1473.7, subd. (b)(1)].)
As drafted by the Legislature, section 1473.7, subdivision (b) does not start the clock running on a defendant's due diligence until that defendant has lost in the federal immigration proceedings. Thus, the Legislature has relieved defendants (and the state court system) of the burden of simultaneously pursuing relief in immigration court and state court. Here, for example, if Hernandez had managed to prevail on his 2019 request for asylum, his section 1473.7 motion in the superior court would have been unnecessary.
In many contexts, the question of whether a person acted reasonably depends on the surrounding circumstances. (E.g., Ford & Vlahos v. ITT Commercial Finance Corp. (1994) 8 Cal.4th 1220, 1235 [whether a sale is commercially reasonable depends on all the circumstances existing at the time of the sale]; ZC Real Estate Tax Solutions Ltd. v. Ford (2010) 191 Cal.App.4th 378, 385, fn. 5 ["reasonableness must account for the surrounding circumstances"]; People v. Maciel (2003) 113 Cal.App.4th 679, 685-686 [under the objective standard of reasonableness used to evaluate whether a threat was made for purposes of § 422, all the surrounding circumstances are considered].) Another example is provided by a jury instruction on the basic standard of care, which states in part: "A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation." (CACI No. 401, italics added.) Consequently, we conclude that whether a moving party exercised reasonable diligence in pursuing a motion under section 1473.7, subdivision (a)(1) depends on the moving party's situation-that is, the surrounding circumstances.
As a result, reasonable diligence cannot be determined simply by calculating the time between Hernandez's triggering event (June 2019) and when his attorney filed the section 1473.7 motion (November 2021). Instead, his reasonableness must be determined by considering the difficulties that Hernandez faced, which includes being deported to Mexico and the COVID-19 pandemic.
In addition, another factor relevant to reasonable diligence is whether anything occurred after the triggering event and before the section 1473.7 motion was filed that resulted in prejudice to the People. An analogy is provided by a motion for discretionary relief under Code of Civil Procedure section 473, where the moving party has the burden of showing a satisfactory excuse and reasonable diligence. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) Under that statute, a weaker showing will justify relief where there is no real prejudice to the other party in granting the motion. (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 140-141; Rouse v. Underwood (1966) 242 Cal.App.2d 316, 323 [laches applied when a plaintiff's untimely assertion of rights is "accompanied by a period of delay with consequent results prejudicial to the defendant"].) Based on how reasonable diligence is evaluated in other contexts, we conclude that the harm or disadvantage accruing to the prosecution after the last triggering event is relevant to determining whether a motion under section 1473.7, subdivision (a)(1) was pursued with reasonable diligence.
Here, when all the circumstances are considered, including those identified in the respondent's brief, we agree with respondent's concession and find, as a matter of law, that Hernandez acted with reasonable diligence in pursuing his motion.
II. PROPER RELIEF ON APPEAL
Next, we consider what relief to grant Hernandez. Respondent argues that the matter should be reversed and remanded for the superior court to conduct a hearing in accordance with the full provisions of section 1473.7 and then rule on the merits. Respondent refers to section 1473.7, subdivision (d), which states that "[a]ll motions shall be entitled to a hearing." Having taken this stance, respondent did not address the motion's merits.
In Espinoza, the Supreme Court referred to this subdivision in stating: "In addition to submitting declarations, both parties are entitled to request an evidentiary hearing." (Espinoza, supra, 14 Cal.5th at p. 325.)
In contrast, Hernandez contends this court should conduct an independent review of the record and determine he is entitled to have his motion granted. Thus, Hernandez contends the appropriate relief is to remand to the superior court with instructions to grant the motion.
In Alatorre, the Fourth District (1) determined the trial court made an error of law in determining the defendant had not exercised reasonable diligence and (2) considered how to remedy that mistake. (Alatorre, supra, 70 Cal.App.5th at p. 766.) The court stated:
"In many similar scenarios, we would remand for reconsideration by the trial court. Here, however, as a matter of law Alatorre's motion was both timely and legally sufficient to demonstrate his entitlement to relief under section 1473.7. Consequently, there is no need for further consideration in the superior court, and the 'appropriate remedy is to direct the trial court to grant the motion.'" (Alatorre, supra, 70 Cal.App.5th at p. 766.)
Our determination of the appropriate relief on appeal also is guided by our Supreme Court's approach in Espinoza, supra, 14 Cal.5th 311, where the trial court denied the defendant's motions, "each time without an evidentiary hearing." (Id. at p. 319.) The court stated the independent review standard applied, while recognizing that deference was given to the trial court's factual findings based on the credibility of witnesses the court heard and observed. (Id. at pp. 319-320.) The court then stated: "Because the trial court here conducted no evidentiary hearing, there is no basis for deference, and 'it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.'" (Id. at p. 320.)
Based on the approach taken in Espinoza and Alatorre and the amount of time that has passed since Hernandez filed his motion, we conclude it is appropriate for this court to conduct an independent review of the merits of that motion, rather than remanding the matter to the superior court for further consideration.
III. MERITS OF THE MOTION
A. Overview
Here, we briefly summarize five requirements for relief under section 1473.7, subdivision (a)(1). First, the defendant must show he "is no longer in criminal custody." (§ 1473.7, subd. (a).) Second, the motion must be timely in accordance with subdivision (b) of section 1473.7. Third, the conviction being challenged must have actual or potential adverse immigration consequences. (§ 1473.7, subd. (e)(1).) Fourth, the defendant must show he did not meaningfully understand and knowingly accept the adverse immigration consequences. Fifth, the defendant must demonstrate prejudice- that is, establish a reasonable probability he would have rejected the plea if he had correctly understood the immigration consequences.
First, Hernandez has established that he is no longer in criminal custody and is currently living and working in Mexico. Second, as discussed in part I. of this opinion and conceded by respondent, Hernandez's motion must be deemed timely under subdivision (b)(1) of section 1473.7. Third, federal law and Hernandez's two deportations establish his convictions had adverse immigration consequences.Accordingly, we next consider whether Hernandez has established the remaining two requirements.
In December 1998, Hernandez was ordered removed. The November 1998 notice to appear provided to him by the Immigration and Naturalization Service stated Hernandez's 1996 conviction under section 245, subdivision (c) was an aggravated felony as defined in section 1101(a)(43) of title 8 of the United States Code. An alien convicted of an aggravated felony after admission to the United States is deportable under section 1227(a)(2)(A)(iii) of title 8 of the United States Code. Also, Hernandez's 1995 conviction of possession of methamphetamine for sale under Health and Safety Code section 11378 qualifies as a drug trafficking crime and, thus, is an aggravated felony for purposes of section 1101(a)(43)(B) of title 8 of the United States Code. (U.S. v. Verduzco-Rangel (9th Cir. 2018) 884 F.3d 918, 923; U.S. v. Valdavinos-Torres (9th Cir. 2012) 704 F.3d 679, 689; In re Hernandez (2019) 33 Cal.App.5th 530, 533 [deportation is mandatory for a conviction under Health and Safety Code section 11378].)
B. Applicable Legal Principles
To obtain relief under section 1473.7, Hernandez must prove by a preponderance of the evidence that his convictions are "legally invalid due to prejudicial error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence." (§ 1473.7, subds. (a)(1), (e)(1).) "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." (Espinoza, supra, 14 Cal.5th at p. 319.) To establish an error was prejudicial for purposes of section 1473.7, "a defendant must demonstrate a 'reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.'" (Espinoza, supra, 14 Cal.5th at p. 316.)
Appellate court's apply independent review when assessing whether a defendant has demonstrated a prejudicial error. (Vivar, supra, 11 Cal.5th at p. 526.) Under this standard of review, an appellate court exercises its independent judgment to determine whether the facts satisfy the applicable rule of law. (Id. at p. 527.) Although an appellate court must give deference to the superior court's factual findings based on the credibility of witnesses heard and observed by the superior court, there is no basis for deference where the superior court conducted no evidentiary hearing. (Ibid.) Here, as in Espinoza, the superior court conducted no evidentiary hearing and, as a result," 'it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.'" (Espinoza, supra, 14 Cal.5th at p. 320.)
C. Hernandez's Misunderstanding
1. Evidence in the Record
Hernandez's declaration states that in his 1995 case and his 1996 case, "during the brief meetings with my attorneys," they never "mention[ed] anything to me about the negative immigration consequences I would face because I was a [lawful] permanent resident and not a citizen of the United States." His declaration also states that when he entered the pleas in those cases, (1) he did not have any specific or general knowledge of any potential adverse immigration consequences of the pleas, (2) he was not aware that his pleas would have such severe immigration effects, and (3) he did not understand that he would be deported and not allowed back into the United States because he was a lawful permanent resident and not a citizen. The declaration also asserts that, as a lawful permanent resident who grew up in the United States, he did not think he was any different from a citizen and, when he signed the advisement forms in both cases, he believed they were standard forms that everyone signed.
Hernandez corroborated his declaration's assertions about his state of mind at the time of the pleas by attaching to his motion a notice of naturalization interview issued to him by the Immigration and Naturalization Service in July 1996. The notice stated the interview on Hernandez's application for naturalization was scheduled for 1:45 p.m. on August 1, 1996.
Other evidence relevant to Hernandez's understanding of the immigration consequences of his pleas are the plea forms he signed in May 1995 and October 1996. Those forms advised Hernandez that the pleas he entered "could result in" his deportation, exclusion from admission to the United States, and/or a denial of naturalization.
2. Effect of the Immigration Advisement
The advisements in the forms signed by Hernandez in connection with his 1995 and 1996 pleas substantially comply with the requirements of section 1016.5, subdivision (a), which provides: "Prior to acceptance of a plea of guilty . . . to any offense punishable as a crime 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."
Section 1016.5 uses the phrase "may have" and the advisements given to Hernandez used the phrase "could result in." Neither of these phrasing inform the recipient of mandatory immigration consequences. Accordingly, several decisions of the Court of Appeal have concluded the generic advisement in section 1016.5 was insufficient to establish the defendant understood the mandatory immigration consequences of the conviction. (E.g. People v. Lopez (2022) 83 Cal.App.5th 698, 716717 (Lopez); People v. Soto (2022) 79 Cal.App.5th 602, 609; People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065; People v. Mejia (2019) 36 Cal.App.5th 859, 863 [defendant signed plea form stating he understood the conviction may have the consequence of deportation].) More recently, our Supreme Court concluded a defendant did not meaningfully understand the immigration consequences of his plea despite the trial court providing a general advisement under section 1016.5 that his conviction may have adverse immigration consequences. (Espinoza, supra, 14 Cal.5th at p. 320; see Vivar, supra, 11 Cal.5th at p. 519 [defendant signed form stating the conviction may have the consequences of deportation and exclusion for the United States; denial of his § 1473.7 motion reversed].)
The foregoing conclusion is compatible with the published decisions that conclude a more strongly worded written advisement in a Tahl waiver form or oral advisement during the plea colloquy does not bar a defendant from proving that he or she did not meaningfully understand the consequences of a plea. The Second District stated the rationale for this principle is that such advisements do "not absolve defense counsel of the duty to advise of immigration consequences." (People v. Manzanilla (2022) 80 Cal.App.5th 891, 906.) "Even where the [ Tahl ] form says that the defendant 'will' be deported, it does not substitute for the advice of counsel, and it is not a categorical bar to relief." (Ibid.; accord, People v. Lopez (2021) 66 Cal.App.5th 561, 577.) Similarly, a trial court's oral advisement to a defendant that deportation will result is not a substitute for the advice of counsel. (Lopez, supra, at p. 578; see People v. Rodriguez (2021) 60 Cal.App.5th 995, 1003-1004 [defendant did not meaningfully understand immigration consequences despite signing form that stated" 'this plea ... will result in my removal/deportation' "]; People v. Camacho (2019) 32 Cal.App.5th 998, 1011, fn. 8 [even though defendant "was advised that his plea 'will result' ... in adverse immigration consequences," he presented sufficient evidence of his lack of understanding to warrant section 1473.7 relief].)
Based on the foregoing we conclude the general advisements contained in the forms signed by Hernandez at the time of his pleas do not establish he meaningfully understood and accepted the mandatory immigration consequences of his pleas. (See People v. Patterson (2017) 2 Cal.5th 885, 889, 898 [a § 1016.5 advisement does not categorically bar a motion to withdraw the plea under § 1018 on grounds of mistake or ignorance].)
3. Evaluation of the Evidence
Based on our independent review of the record, we find that Hernandez has proven by a preponderance of the evidence that he did not meaningfully understand and accept the mandatory immigration consequences of his pleas. We also find that, under the circumstances, Hernandez's assertion that his attorneys did not discuss the immigration consequences of his pleas is credible.
A defendant's own error in understanding the immigration consequences of the plea is a basis for relief under section 1473.7, subdivision (a)(1). (People v. Alatorre, supra, 70 Cal.App.5th at pp. 768-769; People v. Mejia, supra, 36 Cal.App.5th at p. 871; People v. Camacho, supra, 32 Cal.App.5th at p. 1009.) Thus, Hernandez need not prove that (1) the superior court erred in advising him of the immigration consequences of his pleas or (2) defense counsel provided ineffective assistance during the plea process.
First, Hernandez spoke English fluently, which increases the probability that the attorneys would not have thought he was a noncitizen.
Second, the absence of advice about immigration consequences is consistent with the law as it existed in the mid-1990's. The United States Supreme Court did not decide Padilla, supra, 559 U.S. 356 until a decade and a half later. Before Padilla, the Sixth Amendment was not interpreted as imposing a duty on defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. (See Chaidez v. United States, supra, 568 U.S. at p. 353.) Rather, most courts had determined that no such duty existed. (Ibid.) In Padilla, the United States Supreme Court changed the law and "held that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases." (§ 1016.2, subd. (a).) Consistent with this timeline, the defendant People v. Rodriguez (2021) 68 Cal.App.5th 301 (Rodriguez) supported her challenge to a 2005 conviction by submitting a declaration from "the supervising attorney of the public defender's office where [defense] counsel was employed [which] stated that prior to the Padilla decision in 2010, it was 'not the common practice of defense counsel to research or advise clients regarding the specific immigration consequences of a particular plea.'" (Rodriguez, supra, 68 Cal.App.5th at p. 323.)
Third, it is highly unlikely that Hernandez would have pursued naturalization in 1996 and brought himself to the attention of the Immigration and Naturalization Service if he had understood that his 1995 conviction for an aggravated felony rendered him ineligible for naturalization and subject to deportation. Subjecting oneself to the scrutiny of United States immigration officials is not "the behavior of a person who understood that his convictions effectively ended his lawful resident status. (See People v. Alatorre[, supra, ] 70 Cal.App.5th 747, 770 ['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.'].)" (Espinoza, supra, 14 Cal.5th at p. 320.) Thus, Hernandez has provided objective evidence corroborating his misunderstanding. (See Vivar, supra, 11 Cal.5th at p. 530 [assertions must be corroborated by objective evidence].)
In sum, we independently determine that Hernandez has proven that he did not meaningfully understand the immigration consequences of the pleas he entered in 1995 and 1996. Accordingly, the remaining question is whether Hernandez established that his error was "prejudicial" for purposes of section 1473.7, subdivision (a)(1). (See Espinoza, supra, 14 Cal.5th at p. 320.)
D. Prejudice
Section 1473.7 does not contain a definition of "prejudicial." In Vivar, the Supreme Court concluded an error is prejudicial if the defendant "demonstrates] a reasonable probability that [he] would have rejected the plea if [he] had correctly understood its actual or potential immigration consequences." (Vivar, supra, 11 Cal.5th at p. 529.) The reasonable probability standard does not mean more likely than not. (Rodriguez, supra, 68 Cal.App.5th at p. 324.) Instead, it means merely a reasonable chance, which is more than an abstract possibility. (Ibid.) Stated another way, a reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)
When assessing whether a reasonable probability has been established, courts must consider the totality of the circumstances. (Vivar, supra, 11 Cal.5th at p. 529.) Particularly relevant factors include (1) the defendant's ties to the United States, (2) the importance the defendant placed on avoiding removal, (3) the defendant's priorities in seeking a plea bargain, and (4) whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. (Id. at pp. 529-530.) "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 p. 320.)
Hernandez's declaration states that had he known that his pleas would have such severe immigration consequences-that is, removal from the United States and being barred from admission to the United States-he "would have insisted on proceeding to trial in my cases." He also asserts he would have taken any kind of chance to avoid the immigration consequences, including spending more time in jail to avoid being deported. These statements, if true, would establish Hernandez's failure to meaningfully understand the immigration consequences was prejudicial-that is, if he had correctly understood the consequences, he would have rejected the pleas. (See Vivar, supra, 11 Cal.5th at p. 529.) Courts, however, do not accept at face value a defendant's assertion that he or she would have behaved differently if fully aware of the adverse immigration consequences of the plea. Such assertions must be corroborated with objective evidence. (Espinoza, supra, 14 Cal.5th at p. 321; Vivar, supra, at p. 530.)
Hernandez supports this assertion of prejudice by providing details about his family, friends, and life in the United States and by stating he did not know anything about living in Mexico, he had no family or friends there, and he had no means of supporting himself there. "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." (Espinoza, supra, 14 Cal.5th at p. 321.) "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." (Ibid.)
At the time of his pleas in May 1995 and October 1996, Hernandez was 20 and 21 years old and a lawful permanent resident. He immigrated to the United States when he was three years old and lived here until he was deported in 1998. He attended school in the United States, graduating from Fowler High School in June 1993. He also attended a community college for five semesters. Therefore, it is credible that his friends were in the United States and he had no friends in Mexico. His grandparents, parents, and siblings were in the United States. Also, the fact Hernandez had applied for naturalization in 1996 supports his assertion that he regarded the United States as his home.
Based on our independent evaluation of the evidence in the record, we conclude Hernandez's strong community ties adequately support a finding of prejudicial error- that is, there is a reasonable probability that he would not have entered the pleas if he had known the adverse immigration consequences. Thus, Hernandez has demonstrated he is entitled to have his motion under section 1473.7, subdivision (a)(1) granted. When such a motion to vacate a conviction is granted, "the court shall allow the moving party to withdraw the plea." (§ 1473.7, subd. (e)(3).)
The facts about Hernandez's personal history are similar to those in Lopez, supra, 83 Cal.App.5th 698, a case where the defendant came to the United States when he was 13 years old with his mother and four siblings after his father died. (Id. at p. 706, 715.) The defendant completed middle school and high school, was a lawful permanent resident, lived continuously in the United States until his deportation in 2016, and, even as a teenager, he helped support his mother. (Id. at p. 715.) In 1998, when he was 22 years old, the defendant entered a no contest plea to one count of second degree robbery. (Ibid.) The appellate court characterized the ties the defendant developed in his nine years in the United States as "strong" and stated he had "no ties to Mexico." (Id. at p. 716.) Based on the defendant's personal history and ties to the United States, the appellate court concluded he "carried his burden of establishing prejudicial error and is entitled to relief." (Id. at p. 719.) Hernandez and the defendant in Lopez were similar ages when they entered their pleas, while Hernandez had come to the United States when he was three, instead of 13 years old. Thus, Hernandez had another decade in which to develop and strengthen his ties to the United States. Consequently, our finding that Hernandez's ties to the United States corroborate his assertion that he would have rejected the pleas is compatible with the analysis and finding of prejudice in Lopez, supra, 83 Cal.App.5th 698, and other cases. (See People v. Villabla (2023) 89 Cal.App.5th 659, 668 [prejudicial error established by defendant who came to the United States with his parents when he was 13 years old, attended middle and high school in Los Angeles, met his United States citizen wife in 2003, later married her and raised six children with her]; Alatorre, supra, 70 Cal.App.5th at p. 771 [prejudicial error established as defendant had lived in the United States since he was a preschooler, his entire family lived here, and he eventually married and raised children here]; Rodriguez, supra, 68 Cal.App.5th at p. 307 [prejudicial error established by defendant who came to the United States when she was a year old and was 22 years old in 2005 when she entered a no contest plea to a drug charge]; People v. Mejia, supra, 36 Cal.App.5th at pp. 863, 872 [prejudicial error established by defendant who came to the United States when he was 14 years old and who was 22 years old when he was arrested in 1993]; People v. Camacho, supra, 32 Cal.App.5th at pp. 1002, 1011-1012 [prejudice established by defendant who came to the United States when he was two years old and who was 24 years old when he was arrested in 2009].)
As a result, this matter should be remanded to the superior court with directions to grant Hernandez's section 1473.7 motion to vacate his 1995 and 1996 pleas. (Espinoza, supra, 14 Cal.5th at p. 326; Alatorre, supra, 70 Cal.App.5th at p. 771 [reversed order denying the § 1473.7 motion and remanded with directions to grant the motion] People v. Rodriguez, supra, 60 Cal.App.5th at p. 1006 [reversed order denying defendant's motion to vacate conviction and remanded with directions to grant motion]; People v. Camacho, supra, 32 Cal.App.5th at p. 1012 ["The appropriate remedy is to direct the trial court to grant the motion"].)
DISPOSITION
The order denying the section 1473.7 motion is reversed. The matter is remanded, and the superior court is directed to file, within 10 days after the issuance of remittitur, an order granting the motion, vacating the convictions, and allowing Hernandez to withdraw his pleas.
[*] Before Franson, Acting P.J., Smith, J. and DeSantos, J.