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Filed 1/25/24 P. v. Durand CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO FRANCISCO DURAND,

Defendant and Appellant.

E080800

(Super. Ct. No. RIF1403818)

OPINION

APPEAL from the Superior Court of Riverside County. Sean P. Crandell, Judge. 

Reversed.

Garrick Byers, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General; Lance E. Winters, Chief Assistant Attorney 

General; Charles C. Ragland, Assistant Attorney General; Daniel Rogers, Deputy 

Attorney General, for Plaintiff and Respondent.
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Defendant and appellant Pedro Francisco Durand appeals from the trial court’s 

order denying his motion to withdraw his plea and vacate his conviction under 

Penal Code1section 1473.7. He contends that the trial court erred when it denied his 

motion for failing to state a prima facie case for relief before a full hearing on the merits.

The People concede this issue. We agree with the parties, and therefore reverse the trial 

court’s denial order and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On February 23, 2015, defendant pled guilty to attempted murder under 

section 187, subdivision (a), and section 664, and was sentenced on March 27, 2015, to 

the upper term of nine years. Upon completing this sentence, defendant was taken into 

federal custody for deportation proceedings. 

Using a copy of Judicial Council Form CR-187 dated November 7, 2022, but filestamped by the trial court on February 27, 2023, defendant moved to vacate his 

conviction and withdraw his plea. In his motion, he attested under penalty of perjury that 

his attorney did not sufficiently advise him of the immigration consequences of his guilty 

plea. He argued that, as a result, he did not meaningfully understand the attendant

immigration consequences.

The People filed an opposition to defendant’s motion. On February 27, 2023, the 

matter was called for hearing, at which the trial court denied the motion based on a 

finding that “no prima facie [case was] made.” Defendant timely appealed this denial.

1 All further statutory references are to the Penal Code unless otherwise specified.
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We note that defendant’s notice of appeal also refers to a denial of a motion to 

vacate made under section 1016.5; and, in his opening brief, defendant states that he 

“does contend that section 1016.5 was violated.” Despite this, the brief as a whole 

suggests that this sentence accidentally misstates defendant’s position, and he “is not 

contending on appeal that section 1016.5 was violated.” Therefore, we treat this as an 

appeal of a motion to vacate made solely under section 1473.7.

DISCUSSION

A. STANDARD OF REVIEW AND APPLICABLE LAW

Defendant filed his motion to vacate his conviction and withdraw his guilty plea

under section 1473.7, which permits “[a] person who is no longer in criminal custody” to 

move to vacate a conviction that was “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.” (§ 1473.7, subd. (a)(1).) The statute specifically states that “[a]ll motions” are 

entitled to a hearing. (§ 1473.7, subd. (d).) To prevail on the motion, the moving party

must show an entitlement to relief by a preponderance of the evidence. (§ 1473.7, 

subd. (e)(1).)
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A defendant sufficiently proves a prejudicial error by “demonstrating a reasonable 

probability that the defendant would have rejected the plea if the defendant had correctly 

understood its actual or potential immigration consequences.” (People v. Vivar (2021) 11 

Cal.5th 510, 529 (Vivar).) This showing is assessed under the totality of the 

circumstances. (Ibid.)

The court employs an independent standard of review when examining the denial 

of a motion under section 1473.7. (Vivar, supra, 11 Cal.5th at p. 525.) Thus, the court 

defers to the trial court’s credibility determinations but “exercises its independent 

judgment to determine whether the facts satisfy the rule of law.” (In re George T. (2004) 

33 Cal.4th 620, 634.)

B. THE FEBRUARY 27, 2023 HEARING DID NOT SATISFY THE 

REQUIREMENTS OF SECTION 1473.7, SUBDIVISION (d)

The record before us indicates that the trial court applied the wrong standard when 

it ruled on defendant’s motion to vacate his conviction. The trial court denied the motion

because defendant had not made a “prima facie” case for relief. It prefaced its ruling 

with the explanation that it had observed “the plea form where [defendant] appears to 

have initialed and signed the plea form, which specifically advised him of his 

immigration consequences. So for those reasons, the Court is going to find that 

[defendant] has not made a prima facie showing that this would be sufficient to have an 

order to show cause hearing, and so his petition is denied.”
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Certain motions to vacate a conviction, namely those made under section 1172.6,

indeed require the court to first find that the moving party made a prima facie showing of 

entitlement to relief, i.e., a showing that is “sufficient to support the position of the party 

in question” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851); and, only 

after reaching that finding would the court then issue an order to show cause on the

evidentiary merits of the motion. However, a motion to vacate under section 1473.7 is 

not one such motion. Nowhere does section 1473.7 refer to or suggest a prima facie 

standard, two-part analysis, or prerequisite finding to qualify for an evidentiary hearing. 

Instead, the statute requires a hearing and relief is based on a finding of prejudicial error

by a preponderance of evidence.

Here, the trial court mistakenly applied a “prima facie” standard rather than a 

“preponderance of evidence” standard. This application of a “prima facie” standard 

indicates that the trial court did not weigh the evidence. Its finding that the petition was 

insufficient to warrant an “order to show cause” invokes the language used in 

section 1172.6, suggesting that the court instead held a truncated hearing such as those

contemplated by section 1172.6, rather than the full evidentiary hearing on defendant’s 

entitlement to relief as is required by section 1473.7.

Hence, defendant is entitled to a new hearing on his motion under the correct 

standard of proof.
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DISPOSITION

The trial court’s order is reversed. The case is remanded to the trial court for 

further proceedings in accordance with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.