Filed 5/12/21; certified for publication 6/1/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS CASTILLO

Defendant and Appellant.

B303413

(Los Angeles County

Super. Ct. No. BA002067)

APPEAL from an order of the Superior Court of 

Los Angeles County. Frederick N. Wapner, Judge. Affirmed.

Christopher L. Haberman, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Roberta L. Davis, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

INTRODUCTION

In 2019, appellant Carlos Castillo filed a motion to vacate 

his 1989 conviction for possession for sale of cocaine. He claims 

his defense counsel failed to advise him about the adverse 

immigration consequences of entering a guilty plea and, as a 

result, he did not understand that he was facing deportation on 

the basis of his conviction and plea. The trial court denied 

appellant’s motion, and he appealed.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. 1989 Felony Conviction

On April 30, 1989, appellant was arrested for possession for 

sale of a controlled substance (Health & Saf. Code, § 11351)—a 

felony. Officers retrieved 13 bindles of cocaine totaling 

3.6 grams, an air pistol, a pipe with cocaine residue, and $190 in 

cash in various denominations.

On October 17, 1989, a pre-trial hearing took place before 

Judge Bernard J. Kamins; appellant was represented by Diane 

Wiseman (Wiseman). The People offered appellant a sentence of 

six to 12 months if he pled guilty as charged. The court noted

appellant faced four years in prison but stated it would sentence 

him to a minimum of six months if he took the plea at this “very 

early stage of the case,” so long as he did “not hav[e] any prior 

felonies. If [he did], the penalty goes up.”

Appellant told the court he “wasn’t selling [cocaine].” The 

court explained he was charged with possession of cocaine in a 

quantity sufficient to sell and that the prosecutor was “not 

charging you with selling it.”
3

Wiseman advised the court appellant “would like to proceed 

to trial [and] would request the court order that the police 

fingerprint the bag.” The court explained it was “up to” the 

prosecution whether to have the bag fingerprinted. The court 

cautioned appellant that if he opted for trial, he “may be looking 

at four years” instead of six months. The court further cautioned 

appellant that the evidence at trial “[is] really going to be your 

word against the policeman’s.”

The record reflects appellant and Wiseman conferred off 

the record. Wiseman then advised the court that appellant 

authorized her to disclose he recently pled guilty to possession or 

possession for sale of marijuana. The court told appellant it 

won’t “punish him for his honesty” and if appellant “wants to 

plead at this time, [the court] would still keep [appellant’s 

sentence] under a year.” Wiseman then informed the court 

appellant “wishes to accept.” The court instructed the prosecutor 

to take the plea.

The record reflects appellant and Wiseman again conferred. 

Appellant, who had appeared in this matter as Richard Rivas and 

later as Carlos Castillo, told the court his true name was Hugo 

Zelaya. The court commended appellant, stating “[i]t’s very 

refreshing to see someone come forward and be as honest.”

Wiseman then informed the court it is “possible” appellant 

had two prior convictions; she explained appellant “was on 

probation on one case” when he had a second case, but was 

unsure whether these two prior cases were consolidated. The 

court commented “this is getting to be a real nightmare” and 

asked whether they could proceed to “just take the plea now.” 

The court indicated appellant was “the first guy that’s been 

honest at this point” and that “most [defendants] keep holding 
4

out and it turns out they are under all kinds of probation under 

different names.”

The prosecutor took the plea, and advised appellant of his 

rights and the consequences of the plea, including: “If you’re not 

a citizen of the United States, pleading guilty could result in your 

deportation, denial of reentry, or denial of naturalization as a 

United States citizen. [¶] Do you understand that?” Appellant 

responded, “Yes.” Appellant confirmed he had time to talk about 

this case with his attorney and was “pleading guilty freely, 

voluntarily, and because [he is] guilty.” Appellant waived his 

rights and pled guilty.

The court found “a knowing and intelligent waiver.”

II. 2019 Motion to Vacate the 1989 Conviction

On March 25, 2019, appellant, under the name Hugo 

Zelaya, filed a motion to vacate his 1989 conviction pursuant to 

Penal Code1 section 1473.7, on the ground he “did not 

meaningfully understand, was unable to defend against and did 

not knowingly accept the actual or potential adverse immigration 

consequences of a plea of guilty.” He alleged his counsel “failed to 

investigate and advise him about the immigration consequences 

that he was facing.”

In support of his motion, appellant submitted a declaration 

signed under penalty of perjury, detailing the following:

Appellant was born in El Salvador. He participated in the 

Fuerzas Populares de Liberacion (FPL)—an opposition political 

party—for six to eight months, where he occasionally painted 

banners; he also participated in an armed takeover and shutdown 

1 All further undesignated statutory references are to the 

Penal Code.
5

of a local church. He soon discovered the government was 

“spying” on him and that his name was on a list of people whom 

the government wanted to kill. In 1979, appellant learned the 

Salvadoran government, army, national guard, and 

commissioners killed some of his friends and associates “because 

of their involvement in the FPL opposition party.” In 1981, 

appellant (then 15 years old) “fled El Salvador” and arrived

unaccompanied in the United States.

He explained he started using the name Mario GonzalezBeltran after he witnessed the killing of a MS-13 gang leader

known as El Ratta in Los Angeles. MS-13 gang members 

questioned him about the killing and beat him up with a bat. In 

1990, MS-13 gang members shot him in the stomach. In 1992 or 

1993, appellant changed his name and moved to San Diego, “in 

the hope that they could not find me.” He met his wife thereafter 

and they have three children together.

On July 3, 2012, appellant was detained at an immigration 

detention facility and held for four years based on his 1989 

conviction. In 2016, he was released pending conclusion of his 

immigration case. He is now “in immigration proceedings and 

[is] seeking asylum” as he is “terrified of the prospect of being 

deported to El Salvador.” While detained, he wrote three letters 

to Wiseman asking for help.

Appellant asserted Wiseman never asked him about his 

immigration status in 1989 and did not inform him that a 

conviction for violating Health and Safety Code section 11351 is 

an aggravated felony that necessarily results in deportation from 

the United States. Appellant further asserted had he known 

such information, he would not have pled guilty because he did 
6

not wish to be deported to El Salvador, “a country [he] fled 

because of violence and the death threats [he] received.”

Appellant, now 53 years old, stated he wishes to stay with 

his family in the United States, which he considers his home.

Appellant included as exhibits to his declaration the three 

letters he sent to Wiseman in 2015, pleadings related to the 1989 

case, and the reporter’s transcript of relevant proceedings held in 

1989. He also provided a declaration by E. Katharine Tinto

(Tinto), a clinical professor of law and the director of the Criminal 

Justice Clinic at the University of California, Irvine School of 

Law. After review of the court file, defense counsel’s file, 

appellant’s criminal history, and the reporter’s transcript of 

relevant hearings, Tinto opined Wiseman’s representation of 

appellant “fell below the standards for reasonable effective 

assistance of counsel with regard to advice and defending against 

the immigration consequences of the conviction.”

Appellant also submitted a letter he received from 

Wiseman dated January 9, 2019. In this letter, Wiseman stated 

she represented appellant 29 years prior, and did not have an 

“independent recollection” of the specifics of the case, including 

whether she negotiated with the prosecutor for a more 

immigrant-neutral conviction and whether she advised appellant 

about the immigration consequences of the plea.

Wiseman stated it was her general custom and practice to 

interview, advise, and speak with her clients before court 

appearances. Wiseman’s file indicated she met with appellant on 

September 12, 1989, since the date “9/12” is written next to her 

case interview notes. Based on her review of the notes, Wiseman 

believed she “met with [appellant] two to three times before doing 
7

his preliminary hearing” and “at least three times between his 

preliminary hearing and guilty plea.”

Wiseman also stated it was her practice to review probation 

reports with clients; thus, it would be her “practice to review with 

[appellant] the discussion in the [probation] report regarding 

[his] prior deportation under the name of Hugo Cortez-Gonzalez, 

his use of many aliases” and that immigration authorities were 

notified via letter on March 14, 1988. A Spanish-language 

interpreter was used during Wiseman’s meetings with appellant. 

Wiseman ceased representing appellant sometime in December 

1989, when a conflict of interest was discovered.

The People opposed appellant’s motion. In support, they 

attached as an exhibit the CLETS printout and criminal history 

for appellant, which showed he had several felony convictions 

prior to the 1989 case: possession of marijuana for sale (Health & 

Saf. Code, § 11359) in 1986; possession of a controlled substance 

(id., § 11350, subd. (a)) in 1987; and sale/furnishing of marijuana 

(id., § 11360, subd. (a)) in 1988. The CLETS printout also 

showed appellant had pled guilty to multiple crimes after his plea 

in the 1989 case, including transportation/sale of a controlled 

substance (id., § 11352, subd. (a)) in 1990; possession for sale of a 

controlled substance (id., § 11351) in 1992; use/under the 

influence of a controlled substance (id., § 11550, subd. (a)) in 

2001; and driving under the influence with a prior (Veh. Code,

§ 23152, subd. (a)) in 2010. Appellant’s criminal history record 

also showed he had used between 10 and 15 different names and 

between five and seven different birthdays within the last 

30 years.
8

Based on appellant’s criminal history, the People argued 

appellant had previously been given immigration advisements 

and was put on notice of potential immigration consequences.

III. Hearing and Ruling on Motion to Vacate

The hearing on appellant’s motion took place August 15, 

2019 and October 17, 2019.

Appellant testified on his own behalf. For the most part, he 

repeated the information in his declaration and provided the 

following additional relevant information. When appellant left El 

Salvador, he went to Guatemala, then Mexico, and then “crossed

the border in Nuevo Leon, Tamaulipas to Laredo, Texas.” He 

remained in Texas from 1981 until 1985, then moved to Los 

Angeles. In 1985, he was deported by the Immigration and 

Naturalization Service (INS) to Mexico. He returned to the 

United States. In 2012, he was picked up again and detained in 

immigration custody.

During cross examination, appellant denied ever being 

advised about immigration consequences during his other felony 

cases; he was asked specifically about his 1986 conviction by plea 

for possession of marijuana for sale, his 1987 conviction by plea 

for possession of a controlled substance, his 1990 conviction by 

plea for transportation/sale of a controlled substance, and his 

2001 conviction by plea for use or being under the influence of a 

controlled substance. He said that in the last 30 years, 

throughout the dozen or so cases and different counsel he has 

had, “no lawyer ha[d] told [him] . . . [he] was gonna suffer 

immigration consequences.” He said he was “positive” he was 

never told about immigration consequences. He admitted, 

however, that the courts had notified him of immigration 
9

consequences, stating “that’s the proceeding of the court, and I 

think [that] they do it every time.”

Notably, when asked by the prosecutor if, in the course of 

the last 30 years, he “used those 12 to 15 names or five to six 

different birth dates because [he] knew that [he was] in danger of 

being deported due to [his] convictions,” appellant responded,

“Yes.”

As to the 1989 case, appellant recalled only one 

conversation with counsel. Appellant said Wiseman never 

discussed immigration consequences that might arise from a 

conviction. He said he “felt cornered” by Wiseman “because she 

didn’t want to help” him. He recalled having a Spanish 

interpreter present with Wiseman during the 1989 case.

Appellant testified he does not wish to be deported to El 

Salvador, where he is afraid for his life. He wants to remain in 

the United States with his wife and adult children. He has a 

half-brother still residing in El Salvador.

Following argument, the trial court denied the motion to 

vacate. The court commented that motions such as appellant’s 

“tug at [the] heart strings,” but was not convinced by appellant’s 

declaration and testimony. The court found appellant “was 

emphatic that there was never a lawyer who told him anything 

about the immigration consequences. Not one. . . . [¶] And I just 

don’t believe it.”

The court made further findings: “I think what was going 

on is what’s all too typical in the American criminal justice 

system What’s the best deal I can get? I’m sure it was horrible 

in El Salvador, but I do not believe in the forefront of his mind at 

that moment when he was sitting in front of Judge Kamins, as 

bad as that plea sounds, that he was thinking to himself, no way 
10

am I doing this to take this chance. I don’t care what they offer 

me. I’m going to trial. No. [¶] Judge Kamins kept telling you, 

this is the best deal. [E]ven though he . . . made the nightmare 

comment, he kept complimenting [appellant] on his honesty, 

which is ironic, I think, in light of this finding. And the more he 

complimented, the more other things came out.”

Appellant timely appealed.

DISCUSSION

Appellant contends his conviction must be vacated because 

defense counsel failed to advise him of the actual immigration 

consequences of his plea and failed to defend against such 

immigration consequences by pursuing an immigration-neutral 

plea deal. He argues Wiseman rendered ineffective assistance of 

counsel. He argues this prejudicial error damaged his ability to 

understand and knowingly accept the actual/potential adverse 

immigration consequences of his plea. He also contends the trial 

court applied “an incorrect test” in denying the motion.

I. Standard of Review

Our Supreme Court recently determined the standard of 

review for section 1473.7 motion proceedings. In People v. Vivar, 

(May 3, 2021, S260270) ___Cal.5th ___[2021 WL 1726827] 

(Vivar), the Court endorsed the independent standard of review. 

(Id. at p. *6.) Under independent review, an appellate court 

exercises its independent judgment to determine whether the 

facts satisfy the rule of law. (Id. at p. *8.) When courts engage in 

independent review, they should be mindful that independent 

review is not the equivalent of de novo review. (Ibid.) An 

appellate court may not simply second-guess factual findings that 

are based on the trial court’s own observations. (Ibid.) Factual 
11

determinations that are based on the credibility of witnesses the 

superior court heard and observed are entitled to particular 

deference, even though courts reviewing such claims generally 

may reach a different conclusion from the trial court on an 

independent examination of the evidence even where the 

evidence is conflicting. (Ibid.) In section 1473.7 motion 

proceedings, appellate courts should similarly give particular 

deference to factual findings based on the trial court’s personal 

observations of witnesses. (Ibid.) Where the facts derive entirely 

from written declarations and other documents, however, there is 

no reason to conclude the trial court has the same special 

purchase on the question at issue; as a practical matter, the trial 

court and this court are in the same position in interpreting 

written declarations when reviewing a cold record in a section 

1473.7 proceeding. (Ibid.) Ultimately it is for the appellate court 

to decide, based on its independent judgment, whether the facts 

establish prejudice under section 1473.7. (Ibid.)

II. Applicable Law

Mandatory removal from the United States is a 

consequence of being convicted of a crime deemed an aggravated 

felony under federal immigration law. (Moncrieffe v. Holder

(2013) 569 U.S. 184, 187–188 (Moncrieffe); 8 U.S.C. § 1228, 

subd. (c) [aggravated felon is “conclusively presumed” 

deportable].) Thus, an aggravated felony conviction renders a

defendant ineligible for relief such as asylum and cancellation of 

removal. (Moncrieffe, at p. 187.) A violation of Health & Safety 

Code section 11351 is an aggravated felony. (People v. 

Ogunmowo (2018) 23 Cal.App.5th 67, 77 (Ogunmowo); see 

Fonseca v. Fong (2008) 167 Cal.App.4th 922, 925, fns. 1, 2.)
12

Section 1473.7 authorizes a person who is no longer in 

criminal custody to move to vacate a conviction or sentence where 

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 plea of guilty or 

nolo contendere.” (§ 1473.7, subd. (a)(1), italics added.)

“Ineffective assistance of counsel that damages a 

defendant’s ability to meaningfully understand, defend against, 

or knowingly accept the actual or potential adverse immigration 

consequences of a guilty plea, if established by a preponderance 

of the evidence, is the type of error that entitles the defendant to 

relief under section 1473.7. [Citation.] To establish ineffective 

assistance of counsel, a defendant must demonstrate that his 

counsel’s performance fell below an objective standard of 

reasonableness under prevailing professional norms and that he 

was prejudiced by the deficient performance.” (Ogunmowo, 

supra, 23 Cal.App.5th at p. 75; see Strickland v. Washington

(1984) 466 U.S. 668 (Strickland).)

Effective January 1, 2019, the Legislature amended section 

1473.7 to clarify that a “finding of legal invalidity may, but need 

not, include a finding of ineffective assistance of counsel.” 

(§ 1473.7, subd. (a)(1).) Therefore, a defendant asserting error 

based on an attorney’s erroneous advisement need not prove the 

elements of a claim for ineffective assistance of counsel. (People 

v. Camacho (2019) 32 Cal.App.5th 998, 1008.) Instead, a 

defendant seeking relief via a motion under section 1473.7 must 

show prejudicial error which is “not limited to the Strickland test 

of prejudice, whether there was reasonable probability of a 

different outcome in the original proceedings absent the error.” 
13

(Id. at p. 1009.) To establish prejudice, a defendant must show 

by a preponderance of the evidence that he would not have 

entered the plea had he known about the immigration 

consequences. (Id. at pp. 1010–1011; see People v. Martinez

(2013) 57 Cal.4th 555, 565 (Martinez) [defendant may show 

prejudice by “convinc[ing] the court [that he] would have chosen

to lose the benefits of the plea bargain despite the possibility or 

probability deportation would nonetheless follow”]; see Lee v. 

U.S. (2017) 137 S.Ct. 1958, 1965 [a defendant can show prejudice 

by demonstrating a reasonable probability he would not have

pled guilty and would have insisted on going to trial, but for 

counsel’s errors].)

III. Defendant Failed to Establish He is Entitled to Relief

A. No Ineffective Assistance of Counsel

Appellant argues his counsel Wiseman failed to advise of 

the actual immigration consequences of his plea and failed to 

investigate and defend against such immigration consequences 

by pursuing an immigration-neutral plea deal, resulting in 

ineffective assistance of counsel. Relying on Padilla v. Kentucky

(2010) 559 U.S. 356 (Padilla), appellant argues his trial counsel’s 

performance was defective.

We find Padilla not instructive because appellant pled 

guilty 21 years before the Padilla opinion was issued. In Chaidez 

v. United States (2013) 568 U.S. 342, the Supreme Court 

concluded that Padilla “announced a new rule” by imposing an 

obligation on trial counsel to understand and accurately explain 

the immigration consequences of a plea to a defendant before the 

entry of that plea. (Id. at p. 358.) The Supreme Court further 

held Padilla could not be applied retroactively to cases that were 
14

final at the time the opinion in Padilla was issued. (Id. at 

pp. 344, 358.) Therefore, appellant’s trial counsel had no 

affirmative duty in 1989 to research and advise appellant of the 

actual immigration consequences of his plea. (See id. at 

pp. 356-358.) Wiseman’s representation did not fall below the 

then-contemporary objectively reasonable standard of practice.

Appellant argues that even prior to Padilla, California 

courts imposed a duty on trial counsel to inform clients of the 

immigration consequences of their pleas. He relies on People v. 

Soriano (1987) 194 Cal.App.3d 1470 (Soriano). We do not read 

Soriano to so hold. In that case, the defendant submitted a 

declaration stating he had informed his attorney he was an 

immigrant, and his attorney told him if he pled guilty, he would 

serve only eight months in county jail. (Id. at p. 1478.) The 

defendant in Soriano had asked his attorney if he would be 

deported if he pled guilty, and she said he would not. (Ibid.) The 

defendant stated he pled guilty based on these express 

assurances. (Ibid.) The Soriano court determined trial counsel’s 

erroneous advice—that the guilty plea would not make him 

deportable—in response to the defendant’s specific inquiries 

about immigration consequences constituted ineffective 

assistance of counsel. (Id. at p. 1482.)

Appellant’s reliance on Soriano is misplaced because the 

facts here are distinguishable. Unlike the defendant in Soriano, 

it is not appellant’s position that he specifically asked his counsel 

if his guilty plea would make him deportable and in response he

received erroneous advice. In other words, appellant did not 

enter his guilty plea based on false assurances by Wiseman. We 

believe Soriano is properly limited to its facts. We base this on 

the Soriano court’s invocation of the commentary to the American 
15

Bar Association’s Standards for Criminal Justice, standard 

14-3.2, which states “ ‘[w]here the defendant raises a specific 

question concerning collateral consequences (as where the 

defendant inquiries about the possibility of deportation), counsel 

should fully advise the defendant of these consequences.’ ” 

(Soriano, supra, 194 Cal.App.3d at p. 1481.) We find no 

ineffective assistance where, as here, counsel allegedly failed in 

1989 to give unsolicited advice.

B. No Prejudice

Next, we find no merit to appellant’s assertion that it was 

reasonable to expect he could have pled to an alternative, 

immigration-neutral offense had Wiseman pursued one. There is 

no evidence in the record indicating the prosecutor would have 

considered, or the trial court would have accepted, a different 

plea. Appellant’s speculation that another plea could have been 

negotiated “ ‘is not evidence, less still substantial evidence.’ ” 

(People v. Waidla (2000) 22 Cal.4th 690, 735; see People v. Tapia

(2018) 26 Cal.App.5th 942, 953–954.)

Even if Wiseman’s advisement was insufficient, we 

independently find appellant’s claim fails because he has not 

shown prejudice. At the outset, we note appellant’s motion to 

vacate was based primarily on his declaration and then oral 

testimony that he did not understand the consequences of the 

plea. However, the trial court expressly found appellant not 

credible. We do not reevaluate witness credibility. (In re 

Resendiz (2001) 25 Cal.4th 230, 249, abrogated in part on other 

grounds in Padilla, supra, 559 U.S. at p. 370.)

In addition, appellant’s assertion that he would not have 

pled but for Wiseman’s failure to advise him of adverse 

immigration consequences is not enough. (Lee v. U.S., supra, 
16

137 S.Ct. at p. 1967.) “Courts should not upset a plea solely 

because of post hoc assertions from a defendant about how he 

would have pleaded but for his attorney’s deficiencies.” (Ibid.) 

There must also be “contemporaneous evidence to substantiate a 

defendant’s expressed preferences.” (Ibid.) Among the many 

factors to be considered are defendant’s ties to the United States, 

the presence or absence of other plea offers, the seriousness of the 

charges in relation to the plea bargain, the defendant’s criminal 

record, the defendant’s priorities in plea bargaining, the 

defendant’s aversion to immigration consequences, and whether 

the defendant had reason to believe that the charges would allow 

an immigration-neutral bargain that a court would accept. 

(Martinez, supra, 57 Cal.4th at p. 568.) A defendant’s probability 

of success at trial also forms part of this inquiry, as a defendant 

would be less likely to insist on going to trial if the consequences 

of trial lead to a worse sentence than compared to the plea. (See 

Lee v. U.S., at p. 1966.)

Our review of the Lee and Martinez factors does not 

convince us appellant would have opted for trial had he been 

properly advised of the immigration consequences. There was a 

significant disparity between the sentence he received on his plea 

and the lengthier sentencing exposure he faced had he been 

convicted at trial; the trial court had noted the People’s offer of 

six months was “the minimum” and that he “may be looking at 

four years” in prison if he opted for trial. The court also indicated

his sentence would “go up” if appellant had prior convictions, and 

appellant soon disclosed the existence of two priors. Based on our 

review of the record, appellant had more than two priors under 

several different names. That fact may have motivated appellant 
17

to agree to a quick plea rather than risk discovery of the full 

extent of his prior convictions.

“It is up to the trial court to determine whether the 

defendant’s assertion is credible, and the court may reject an 

assertion that is not supported by an explanation or other 

corroborating circumstances.” (Martinez, supra, 57 Cal.4th at 

p. 565.) Here, the trial court found appellant not credible when 

he testified he had no idea of the adverse immigration 

consequences because no attorney had ever told him so. The trial 

court’s finding is supported by the record. Notably, when asked 

by the prosecutor if he “used those 12 to 15 names . . . because 

[he] knew that [he was] in danger of being deported due to [his] 

convictions,” appellant said yes.

Against this backdrop is appellant’s countervailing fear of 

violence against him if he returned to El Salvador. But he does 

not state that he told his attorney anything about this fear so 

that she could have tried to mitigate the consequences of the plea 

or at least given him more explicit advice. This evidentiary gap

bolsters the trial court’s conclusion that appellant was not 

credible when he declared he would not have pled guilty had he

not been ignorant of the immigration consequences of the plea.

We also note the transcript of the 1989 pre-trial hearing 

before Judge Kamins shows appellant felt comfortable enough to 

interrupt the court proceedings to ask questions and he conferred 

off the record with defense counsel multiple times. The record 

also shows appellant voiced things he was unsure about: he 

asked about fingerprinting the bag of cocaine, he clarified 

whether he was charged with sale of cocaine as opposed to 

possession for sale. However, after the prosecutor advised him of 

the immigration consequences of the conviction, the record shows 
18

appellant did not interrupt to ask questions or confer with 

counsel. Instead, when asked if he understood, appellant 

affirmatively stated he did. This serves as substantial evidence 

supporting the trial court’s finding that appellant’s priority at the 

time of the plea was not to avoid immigration consequences.

Undoubtedly, removal from the United States after 

creating a life and family here for over three decades is a 

nightmare. However, the test for prejudice considers what 

appellant would have done had he been properly advised of 

immigration consequences at the time of the plea, and not the 

consequences appellant faces now in 2021. (See Martinez, supra, 

57 Cal.4th at p. 564.)

Exercising our independent review while deferring to the 

trial court’s credibility determinations and factual findings, we 

conclude appellant did not meet his burden for relief under 

section 1473.7.

IV. The Trial Court Did Not Use an Incorrect Standard in 

Denying the Motion

In his briefing, appellant sporadically argues the trial court 

did not use a preponderance of the evidence standard in making 

its findings and instead held appellant to a different standard of 

proof by using an “incorrect test.” Without explaining the term, 

appellant argues the trial court ignored “the overwhelming 

evidence that favored granting the motion.” However, the 

evidence, in a nutshell, was 1) appellant did not ask about 

immigration consequences; 2) his counsel did not recall and her 

notes did not show whether she advised him about the 

immigration consequences at a time when such unsolicited advice 

was not deemed ineffective assistance; 3) he entered a guilty plea 

in a bargain which saved him three years in state prison; 4) he 
19

had sustained similar convictions before and after this plea; 5) he 

unconvincingly averred without supporting independent evidence 

that he never would have taken the plea because of his ignorance. 

Under the Martinez factors, this evidence is neither 

overwhelming nor indicative that the trial court held appellant to 

an incorrect test.

DISPOSITION

The order is affirmed.

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES, J.
Filed 6/1/21

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS CASTILLO

Defendant and Appellant.

B303413

(Los Angeles County

Super. Ct. No. BA002067)

ORDER CERTIFYING OPINION 

FOR PUBLIATION

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on May 12, 2021, was not 

certified for publication in the Official Reports. For good cause, it now 

appears that the opinion should be published in the Official Reports and it is 

so ordered.

There is no change in the judgment.

________________________________________________________________________

BIGELOW, P. J. GRIMES, J. STRATTON, J.