Filed 9/27/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

PABLO GONZALEZ,

Defendant and Appellant.

 D073436

 (Super. Ct. No. SCS152019)

APPEAL from an order of the Superior Court of San Diego County, Theodore M. 

Weathers, Judge. Affirmed.

Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, 

Seth M. Friedman and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and 

Respondent.

In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana. 

(Health & Saf. Code, §11359.) The trial court sentenced Gonzalez to 74 days in custody 
2

and three years' summary probation. After serving his 74 days in custody, Gonzalez was 

deported in October 2000. Gonzalez reentered the United States about a year later. He 

subsequently was convicted of possession of a controlled substance for sale (Health & 

Saf. Code, § 11378), criminal threats (Pen. Code,1 § 422), and domestic battery (§ 243, 

subd. (e)). In June 2002, Gonzalez was deported again. He reentered the United States, 

but was deported yet again in April 2017.

On January 1, 2017, section 1473.7 became effective. That statute allows a person 

no longer imprisoned or restrained to move to vacate a conviction or sentence for one of 

two reasons, including that "[t]he 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).) In August 2017, Gonzalez 

moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing, 

the superior court denied Gonzalez's motion.

Gonzalez appeals, contending the court erred in denying his motion under section 

1473.7. Specifically, he claims he established prejudicial error based on his counsel's 

failure to adequately advise him of the immigration consequences of his plea and failure 

to seek an immigration safe alternative disposition. We conclude Gonzalez's arguments 

lack merit. As such, we affirm.

 

1 Statutory references are to the Penal Code unless otherwise specified.
3

FACTUAL AND PROCEDURAL BACKGROUND

Guilty Plea

In July 2000, Gonzalez was arrested after crossing the border in a vehicle 

containing 74 pounds of marijuana. He was charged with transportation of marijuana 

(Health & Saf. Code, § 11360) and possession of marijuana for sale (Health & Saf. Code, 

§ 11359).

Gonzalez ultimately pled guilty to possession of marijuana for sale at a hearing on 

July 26, 2000 at his arraignment in the high intense drug trafficking area court. At that 

hearing, two other defendants were present. The court asked the defendants if they could 

read and understand English. Gonzalez responded in the affirmative. The court then

informed the defendants of the potential immigration consequences of a guilty plea: 

"Each of you should understand if you're not citizens of the United States, your guilty 

plea will affect your status in this country. And it will result in the departure, denial of 

citizenship or exclusion."2

The court also asked Gonzalez if he read and understood his change of plea form. 

Gonzalez answered, "Yes." Gonzalez's change of plea form appears in the record. As 

 

2 The parties quibble about the court's use of the word "departure." The People 

claim the court misspoke or the court reporter transcribed the wrong word. To this end, 

the People assert the court either meant or actually said "deportation" instead of 

"departure." Gonzalez counters there is no evidence to support the conclusion that the 

appearance of the word "departure" in the reporter's transcript is scrivener's error. This 

disagreement is immaterial to our analysis here. 
4

pertinent here, the form states: "I understand that if I am not a citizen of the United 

States a plea of Guilty or No Contest can or will result in removal or deportation, 

exclusion from admission to this country, and denial of naturalization." Gonzalez's 

initials appear in the box next to that statement.

The form also contained the following statement signed by Gonzalez's attorney:

"I am the attorney for the defendant in the above-entitled case. I 

personally read and explained to the defendant the entire contents of 

this plea form and any addendum thereto. I discussed all charges 

and possible defenses with the defendant, and the consequences of 

this plea. I personally observed the defendant fill in and initial each 

item, or read and initial each item to acknowledge his/her 

understanding and waivers. I observed the defendant date and sign 

this form and any addendum. I concur in the defendant's plea and 

waiver of constitutional rights."

The court subsequently sentenced Gonzalez to custody for 74 days and placed him 

on probation for three years. After serving his time in custody, Gonzalez was deported 

on October 6, 2000.

The Motion to Vacate

On August 29, 2017, Gonzalez filed a motion to vacate conviction based on 

section 1473.7. In his motion, Gonzalez argued that (1) his counsel violated the duty to 

investigate and accurately advise him about the specific immigration consequences of a 

plea and (2) his counsel failed to defend against immigration consequences of a plea 

because he did not attempt to plea bargain for an immigration safe alternative disposition.
5

Among other material submitted in support of his motion, Gonzalez submitted a 

self-declaration. In that declaration, Gonzalez stated that he believed he would have the 

opportunity to challenge his deportation even if he pled guilty. He also declared that, at 

the time he pled guilty, his "English was not very good[,]" which lead to 

"confusion/misunderstanding." Gonzalez did not remember talking to a lawyer or 

speaking to anyone in Spanish. He also claimed that he does not recall if anyone told him 

that he would be deported if he pled guilty. Gonzalez represented that had he been told 

of the deportation consequences of pleading guilty, he would have "fought" his case and 

let his "lawyer try for a better deal or to win the case."

The People opposed Gonzalez's motion, contending Gonzalez could not prove by a 

preponderance of the evidence that there was a prejudicial error damaging his ability to 

meaningfully understand, defend against, or knowingly accept the actual or potential 

adverse immigration consequences of a guilty plea.

At the hearing on Gonzalez's motion, Gonzalez's counsel offered the testimony of 

two witnesses: Jose Luis Guerrero and Leticia Gonzalez (Leticia).

Guerrero, who was a deputy public defender at the time, represented Gonzalez 

when he pled guilty. Guerrero had no independent recollection of Gonzalez's case. 

However, after reviewing his office's case management system, he acknowledged that it

appeared he had been assigned Gonzalez's case in 2000. Guerrero stated that, in 2000, a 

criminal defense attorney would provide a defendant with a standard immigration advisal, 
6

but would not consider the immigration consequences of a particular crime. Guerrero 

testified that he would have provided Gonzalez with immigration advice like what was 

outlined on the change of plea form at that time. Guerrero explained that a defense 

counsel's approach to advising a criminal defendant of immigration consequences 

changed in 2010 after the United States Supreme Court issued its decision in Padilla v. 

Kentucky (2010) 559 U.S. 356 (Padilla). After that case, the Office of the Public 

Defender began training its attorneys regarding the immigration consequences relating to 

the charged crimes. 

For example, after Padilla, supra, 559 U.S. 356, the Office of the Public Defender 

would instruct its attorneys that a defendant who has a permanent record should plead not 

guilty at the initial arraignment so the attorney can investigate the immigration 

consequences and then try to obtain a more favorable disposition (relating to immigration 

if applicable). Additionally, Guerrero confirmed that in 2000, the Office of the Public 

Defender had no specific policy with respect to how immigration consequences should be 

investigated or handled. At that time, the custom was for an attorney to advise a 

defendant consistent with the language on the change of plea form. Guerrero explained it 

was his practice to review the change of plea form with a defendant and make sure the 

defendant understood each section before initialing and signing the form.

Also, Guerrero testified that he had no reason to believe that Gonzalez was told 

anything regarding the immigration consequences of pleading guilty beyond what was 
7

contained in the change of plea form. Guerrero noted that Gonzalez's pretrial services 

form indicated that an immigration hold existed. Guerrero explained that the 

immigration hold would have alerted him to the fact that Gonzalez was not a citizen, and 

thus, he would have advised Gonzalez about the immigration consequences as set forth in 

the change of plea form. Guerrero stated that he would tell a group of defendants that an 

immigration hold indicates that a defendant could be deported if he or she pled guilty. 

Then, on an individual basis, Guerrero would have informed Gonzalez that he would be 

deported if he pled guilty.

Guerrero stated that he did not believe Gonzalez had much of a defense because he 

confessed. As such, Guerrero considered the offer from the prosecutor was the best one 

Gonzalez would receive.

Leticia, Gonzalez's wife, also testified at the hearing on Gonzalez's motion to 

vacate. Gonzalez explained that at the time of Gonzalez's arrest, they had twins, who 

were suffering from a variety of ailments and needed frequent medical attention. The 

income Gonzalez was earning at the time was essential to the well-being of his family 

because Leticia was not working. 

Leticia stated that she attempted multiple times since Gonzalez was arrested to 

secure legal assistance to help with immigration issues. However, no attorney would 

help. To the extent an attorney responded to Leticia's request for representation, the 

attorney would inform Leticia there was nothing to be done for Gonzalez. Only after 
8

Gonzalez was deported in April 2017 did an attorney tell Leticia there was a chance she 

could fight Gonzalez's deportation.

Leticia testified that she would have supported a longer custody period in 2000 if 

it allowed Gonzalez an opportunity to stay in the United States legally.

Leticia admitted that, in 2002, Gonzalez was convicted of possession of 

methamphetamine for sale, criminal threats, and domestic violence. He then was 

deported shortly after his conviction.3

The parties stipulated that, if called to testify, Gonzalez would state that he would 

not have pled guilty in this case had he known he was pleading to an aggravated felony 

guaranteeing his deportation to Mexico with no avenue for relief.

After hearing the witnesses' respective testimony, the court permitted counsel to 

argue the matter. In addition to emphasizing Gonzalez's family situation, Gonzalez's 

counsel stated that Gonzalez did not appreciate or understand the consequences of 

pleading guilty. He pointed out that Gonzalez was told he would be deported, but he was 

not informed that he would be permanently barred from reentering the United States and 

would never be able to become a citizen. Counsel argued that it was reasonably probable 

that, if Gonzalez understood the immigration consequences of pleading guilty, he would 

not have done so. Gonzalez's counsel also maintained that in representing Gonzalez, 

 

3 Gonzalez was deported on or about June 26, 2002.
9

Guerrero had the obligation to try to secure a better immigration consequence for 

Gonzalez.

The prosecutor argued that Gonzalez was properly informed of the immigration 

consequences of his guilty plea. She also asserted that Gonzalez had not satisfied the 

evidentiary requirements under section 1473.7.

The court denied the motion. In doing so, the court stated that it found Guerrero's 

testimony "more than credible." The court determined that Guerrero informed Gonzalez 

on at least two occasions, once in a group setting and another individually, that he would 

be deported. The court also noted that the change of plea form expressed that a plea of 

guilty would " 'result in removal, deportation or exclusion from admission to this country, 

and a denial of naturalization.' " The court found Gonzalez understood that if he pled 

guilty, then he would be deported. In addition, the court determined that count 2, which 

the prosecution dismissed under the plea agreement, carried a four-year sentence and was 

a factor defense counsel would have considered in negotiating a plea agreement.

DISCUSSION

Section 1473.7, subdivision (c) provides: "A person no longer imprisoned or 

restrained may prosecute a motion to vacate a conviction or sentence" for one of two 

reasons, including that "[t]he conviction or sentence is legally invalid due 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 plea of 
10

guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) The motion must be made with 

"reasonable diligence" after the party receives notice of pending immigration proceedings 

or a removal order. (§ 1473.7, subd. (b).) The court must hold a hearing on the motion, 

and if the moving party establishes by a preponderance of the evidence that he or she is 

entitled to relief, the court must allow the person to withdraw his or her plea. (§ 1473.7, 

subd. (e).)4

 

4 In full, section 1473.7, states: "(a) A person no longer imprisoned or restrained 

may prosecute a motion to vacate a conviction or sentence for either of the following 

reasons: [¶] (1) The conviction or sentence is legally invalid due 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 plea of 

guilty or nolo contendere. [¶] (2) Newly discovered evidence of actual innocence exists 

that requires vacation of the conviction or sentence as a matter of law or in the interests 

of justice. [¶] (b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed 

with reasonable diligence after the later of the following: [¶] (1) The date 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. [¶] (2) The date 

a removal order against the moving party, based on the existence of the conviction or 

sentence, becomes final. [¶] (c) A motion pursuant to paragraph (2) of subdivision (a) 

shall be filed without undue delay from the date the moving party discovered, or could 

have discovered with the exercise of due diligence, the evidence that provides a basis for 

relief under this section. [¶] (d) All motions shall be entitled to a hearing. At the request 

of the moving party, the court may hold the hearing without the personal presence of the 

moving party if counsel for the moving party is present and the court finds good cause as 

to why the moving party cannot be present. [¶] (e) When ruling on the motion: [¶] 

(1) 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). [¶] (2) In granting or denying the motion, the court 

shall specify the basis for its conclusion. [¶] (3) If the court grants the motion to vacate a 

conviction or sentence obtained through a plea of guilty or nolo contendere, the court 

shall allow the moving party to withdraw the plea. [¶] (f) An order granting or denying 

the motion is appealable under subdivision (b) of Section 1237 as an order after judgment 

affecting the substantial rights of a party."
11

Here, Gonzalez appeals the denial of his section 1473.7 motion. As a threshold 

matter, the parties disagree regarding the applicable standard of review. Gonzalez urges 

us to follow People v. Ogunmowo (2018) 23 Cal.App.5th 67 (Ogunmowo) and apply a de 

novo review, including making independent findings of fact. The People contend 

Ogunmowo was wrongly decided and assert an abuse of discretion is the proper standard.

In Ogunmowo, the court held "[d]e novo review is the appropriate standard for a 

mixed question of fact and law that implicates a defendant's constitutional right." 

(Ogunmowo, supra, 23 Cal.App.5th at p. 76.) Such a pronouncement is not controversial. 

(See People v. Cromer (2001) 24 Cal.4th 889, 894 [courts use independent, de novo 

review for mixed questions of fact and law that implicate constitutional rights].) 

However, the court in Ogunmowo implicitly suggested that an appellate court, on direct 

appeal, can make independent findings of fact, especially when the trial court makes 

factual findings based on declarations. (Ogunmowo, supra, at p. 79 [concluding the trial 

court's factual determination was not entitled to deference because it was based on 

statements made in declarations]; ibid. ["The trial court and this court are in the same 

position in interpreting written declarations."].) The court based this conclusion on In re 

Resendiz (2001) 25 Cal.4th 230 (Resendiz). Yet, that case did not involve a direct appeal, 

but was an original proceeding (petition for writ of habeas corpus). Our high court noted 

that where the superior court denied habeas corpus relief after an evidentiary hearing and 

a new habeas petition was filed with the Court of Appeal, the appellate court is not bound 
12

by the factual determinations made below, but independently evaluates the evidence and 

makes its own factual determinations. (Id. at p. 249.) Nevertheless, even in the context 

of a habeas petition, the court observed that factual determinations made below " 'are 

entitled to great weight . . . when supported by the record, particularly with respect to 

questions of or depending upon the credibility of witnesses the [superior court] heard and

observed.' " (Ibid.)

Here, we are not faced with a petition for writ of habeas corpus. Thus, we do not 

find Resendiz, supra, 25 Cal.4th 230 helpful in establishing the appropriate standard of 

review. Further, to the extent that the court in Ogunmowo, supra, 23 Cal.App.5th 67 

relied on Resendiz to conclude that it could make independent factual findings on a direct 

appeal, we do not find the court's reasoning persuasive. And Gonzalez does not cite to 

any other case where a court determined that an appellate court should make independent 

factual findings when addressing an appeal from an order denying a change of plea.

A decision to deny a motion to withdraw a guilty plea rests in the sound discretion 

of the court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) However, we are 

mindful that such a motion based on a claim of ineffective assistance of counsel 

implicates a constitutional right. This is not unique to motions to withdraw guilty pleas. 

For example, an appellate court reviews a trial court's denial of a motion for new trial for 

an abuse of discretion. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.) Yet, in 

cases in which a trial court denies a motion for new trial raising ineffective assistance of 
13

counsel claims, we uphold the trial court's factual findings if they are supported by 

substantial evidence and we exercise our independent judgment on the legal issues. (See, 

e.g., People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) These "differing" standards 

of review are easily reconciled. A trial court may be found to have abused its discretion 

on the issue of ineffective assistance of counsel if its factual findings are not supported by 

substantial evidence or if it misinterprets or misapplies the applicable legal standard. 

This is the standard we shall apply here.

A defendant who seeks to vacate a conviction on a claim of ineffective assistance 

of counsel must establish two things: (1) counsel's performance was deficient in that it 

fell below an objective standard of reasonableness and (2) he or she was prejudiced by 

that deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 

(Strickland).) Section 1473.7, under which this action was brought, seemingly codifies 

this requirement by placing the burden on the defendant to establish cause for relief by a 

preponderance of the evidence. (§ 1473.7, subd. (e).) Although existing case law does 

not use the phrase "preponderance of the evidence" in its formulation of the test for 

ineffective assistance of counsel, section 1473.7's requirements essentially track the 

showings that were required prior to the enactment of section 1473.7. (See In re Cordero

(1988) 46 Cal.3d 161, 180.)

Here, Gonzalez maintains if Guerrero advised him consistent with the change of 

plea form, Guerrero's advice would have been "constitutionally deficient." To this point, 
14

he relies on a pair of federal cases: Padilla, supra, 559 U.S. 356 and United States v. 

Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781 (Rodriguez-Vega). Neither case supports 

Gonzalez's position here.

In Padilla, supra, 559 U.S. 356, the United States Supreme Court addressed what 

constitutes deficient performance under the Strickland test with respect to advising a 

defendant on the deportation consequences of pleading guilty. In that case, the 

defendant, a lawful permanent resident, pled guilty to drug charges involving the 

transportation of a large amount of marijuana in his tractor trailer. The court noted the 

defendant's "crime, like virtually every drug offense except for only the most 

insignificant marijuana offenses, is a deportable offense under 8 U.S.C. 

§ 1227(a)(2)(B)(i)." (Padilla, supra, at p. 359, fn. 1.) However, before he pled guilty, 

the defendant's counsel did not advise him of the immigration consequences of his plea, 

and in fact, told him he " ' "did not have to worry about immigration status because he 

had been in the country so long." ' " (Id. at p. 359.) The court explained:

"In the instant case, the terms of the relevant immigration statute are 

succinct, clear, and explicit in defining the removal consequence for 

Padilla's conviction. [Citation.] . . . Padilla's counsel could have 

easily determined that his plea would make him eligible for 

deportation simply from reading the text of the statute, which 

addresses not some broad classification of crimes but specifically 

commands removal for all controlled substances convictions except 

for the most trivial of marijuana possession offenses. Instead, 

Padilla's counsel provided him false assurance that his conviction 

would not result in his removal from this country. This is not a hard 

case in which to find deficiency: The consequences of Padilla's plea 

could easily be determined from reading the removal statute, his 
15

deportation was presumptively mandatory, and his counsel's advice 

was incorrect." (Id. at pp. 368-369.)

The court determined that to provide effective assistance of counsel, "counsel must 

inform her client whether his plea carries a risk of deportation." (Padilla, supra, 

559 U.S. at p. 374.) 

In Rodriguez-Vega, supra, 797 F.3d 781, the Ninth Circuit, following Padilla, 

concluded where a defendant's conviction of a removable offense renders deportation 

"practically inevitable," counsel is required to advise his or her client that the "conviction 

rendered [his or her] removal virtually certain, or words to that effect," advising of a 

possibility is not sufficient. (Id. at pp. 786-787, 790.) In other words, "where the law is 

'succinct, clear, and explicit' that the conviction renders removal virtually certain, counsel 

must advise his client that removal is a virtual certainty." (Id. at p. 786, quoting Padilla, 

supra, 559 U.S. at pp. 368-369.)

The instant matter is not analogous to Padilla, supra, 559 U.S. 356 or RodriguezVega, supra, 797 F.3d 781. Unlike Padilla, Guerrero did not advise Gonzalez that he did 

not have to worry about the immigration consequences of pleading guilty. Nor did 

Guerrero run afoul of Rodriquez-Vega. Below, the superior court found that Guerrero 

told Gonzalez twice that he would be deported if he pled guilty. Substantial evidence 

supports this finding. 

In addition to finding Padilla, supra, 559 U.S. 356 and Rodriguez-Vega, supra, 

797 F.3d 781 factually distinguishable from the instant matter, we also conclude they are 
16

not instructive here because Gonzalez pled guilty almost 10 years before the opinion in 

Padilla was issued. Before Padilla, the immigration ramifications of guilty or no contest 

pleas were generally considered indirect or " 'collateral' " consequences of those pleas, 

about which a defendant need not be advised. (People v. Superior Court (Zamudio)

(2000) 23 Cal.4th 183, 198; People v. Limones (1991) 233 Cal.App.3d 338, 344.) 

Therefore, failure to advise a defendant about those ramifications could not support a 

claim of ineffective assistance of counsel under the first prong of the Strickland analysis 

because such a failure did not fall below a general standard of reasonableness.

Padilla, supra, 559 U.S. 356 changed this as explained in Chaidez v. United States

(2013) 568 U.S. 342 (Chaidez). In that case, the United States Supreme Court explained

that Padilla had had the effect of suddenly changing the nature of immigration issues 

from being "collateral consequences" of pleas to something unique, roughly akin to direct 

consequences. (Chaidez, supra, at p. 349.) The United States Supreme Court concluded 

that Padilla had created a new affirmative obligation on trial counsel to understand and 

accurately explain the immigration consequences of a plea to a defendant before the entry 

of that plea where no such duty had existed before. This rule was not based on prevailing 

professional standards but, rather, on a determination that immigration consequences 

were potentially so profound that trial counsel had an obligation to accurately advise their 

clients about them. (Chaidez, supra, at p. 353.) Therefore, the court in Chaidez held 

that, under the rules set out in Teague v. Lane (1989) 489 U.S. 288, the Padilla opinion
17

could not be applied retroactively to cases that were final at the time the opinion in 

Padilla was issued. (Chaidez, supra, at pp. 344, 358.)

As such, Guerrero had no affirmative obligation, under Padilla, supra, 559 

U.S. 356, to advise Gonzalez of the immigration consequences of his plea at the time that 

plea was taken. That said, Guerrero did advise Gonzalez that he would be deported if he 

pled guilty. However, Gonzalez insists that was insufficient because: (1) Guerrero had 

the obligation to advise Gonzalez that a guilty plea also would result in his exclusion 

from the United States and the denial of naturalization; and (2) Guerrero had the 

obligation to negotiate a more immigration favorable plea. Gonzalez nevertheless does 

not provide any authority that required Guerrero, in August 2000, to provide this type of 

advice or negotiate this kind of plea. As such, Guerrero's representation of Gonzalez did 

not fall below the then-contemporary reasonable objective standard of practice. Thus, 

Gonzalez has failed to satisfy the first prong of the Strickland test and his claim of 

ineffective assistance of counsel must fail.

Perhaps in recognition that Padilla, supra, 559 U.S. 356 does not apply 

retroactively to his case, Gonzalez also argues that California imposed an independent 

pre-Padilla duty on trial counsel to inform their clients of the immigration consequences 

of their pleas. This argument is unavailing.

Gonzalez's reliance on recently enacted sections 1016.2 and 1016.3, which were 

intended to codify both the Padilla requirements and any existing California decisional 
18

law, is misplaced. These provisions cannot apply to the instant matter for two reasons. 

First, these statutes, which were added in 2015 by Assembly Bill No. 1343 (2015-2016 

Reg. Sess.), were, by their terms, enacted to codify the Padilla ruling (§ 1016.2, 

subd. (h)). This would include the restriction on retroactivity, which occurred in 2013 in 

Chaidez, supra, 568 U.S.342, under the familiar rule that the Legislature is presumed to 

be aware of decisional law and to have enacted statutes considering that decisional law. 

(People v. Giordano (2007) 42 Cal.4th 644, 659.)

Second, section 3 creates a strong presumption that changes to the Penal Code are 

to be applied prospectively only, unless it is " 'very clear' " from either the language of 

the statute or extrinsic sources that the Legislature intended retroactive application. 

(People v. Brown (2012) 54 Cal.4th 314, 324.) Sections 1016.2 and 1016.3 contain no 

such statement of legislative intent and, given section 1016.2's repeated references to the 

Padilla decision (559 U.S. 356), it is clear that the Legislature did not intend that sections 

1016.2 and 1016.3 apply retroactively. Moreover, we find it telling that, although 

Gonzalez cites to sections 1016.2 and 1016.3 as support for his position here, he offers no 

argument that those statutes should be applied retroactively. 

Similarly, we conclude Gonzalez's reliance on People v. Soriano (1987) 194 

Cal.App.3d 1470, People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio), and People v. 

Bautista (2004) 115 Cal.App.4th 229 (Bautista) is misplaced. In Soriano, the defendant 

claimed that he asked his attorney if he would be deported if he pled guilty. The attorney 
19

responded in the negative. Subsequently, the defendant asked his attorney whether a 

guilty plea would prohibit him from obtaining citizenship. The attorney responded that it 

would not and reiterated that he would not be deported. (Soriano, supra, at p. 1478.) 

The defendant's attorney asserted that she told her client that he " 'could' " be deported if 

he pled guilty. (Id. at p. 1479.) The court concluded the attorney's advice was erroneous 

and counsel had undertaken no effort to obtain accurate information, despite being asked 

about the immigration consequences of a guilty plea. (Id. at p. 1482.) The court 

determined that this erroneous advice constituted ineffective assistance of counsel 

because, when asked, trial counsel had an obligation to research further and provide 

accurate information. (Ibid.) However, Soriano did not establish that defense counsel 

had a duty to research and advise the defendant of his immigration consequences.

Instead, it stands for the proposition that when asked by a client about the immigration 

consequences of a plea, the attorney has an obligation to obtain correct information and 

advise the client based on that information. Here, there is no indication in the record that 

Gonzalez asked his counsel repeatedly, let alone once, about the immigration 

consequences of a guilty plea.

Barocio, supra, 216 Cal.App.3d 99, similarly did not create an independent prePadilla duty to advise defendants of immigration consequences of their pleas. In that 

case, the defendant's trial attorney failed to seek a judicial recommendation against 

deportation. (Barocio, supra, at p. 103.) There was no issue about counsel's advice to 
20

the defendant. Indeed, the court in Barocio specifically concluded that while section 

1016.5 imposed a duty on the court to warn of the possible immigration consequences of 

a plea, counsel had no corresponding duty because immigration concerns were "collateral 

consequence[s]" of the plea. (Barocio, supra, at pp. 107-108.) The only deficiency 

found in Barocio was trial counsel's failure to advise the defendant of the right to a 

recommendation against deportation. (Id. at pp. 109-110.) The case was remanded to the 

trial court for resentencing to allow counsel to confer with his client regarding requesting 

a judicial recommendation against deportation and carry out the client's wishes. (Id. at 

p. 111.) Gonzalez makes no similar complaint here.

Finally, we conclude that Bautista, supra, 115 Cal.App.4th 229 is not helpful to 

Gonzalez. The evidence in Bautista showed that the defense attorney's strategy was 

simply to bargain for "the most lenient sentence possible." (Id. at p. 238.) However, an 

immigration attorney provided a declaration as an expert witness that in at least five cases 

in which he was personally involved, the prosecutor agreed to allow a defendant charged 

with drug sales to " 'plead upward,' " defined as pursuing a negotiated plea for a violation 

of a greater offense that would carry a longer prison sentence but not result in 

deportation. (Ibid.) The defense attorney never contemplated such a strategy. (Ibid.)

And the expert witnesses opined that the defense attorney's representation of the 

defendant fell below objective standards of reasonableness. (Id. at pp. 239-240.) The 

appellate court issued an order to show cause to the trial court for a reference hearing to 
21

take evidence and resolve factual issues relating to defense counsel's legal advice at the 

time of the defendant's guilty plea. (Id. at p. 242.) In contrast, Gonzalez has presented 

no evidence that a more immigration favorable disposition was available in his case. Nor 

did he offer an expert opinion that Guerrero's representation of him fell below an 

objective standard of reasonableness at the time Gonzalez pled guilty. Moreover, there is 

no suggestion in Bautista that trial counsel had a pre-Padilla duty to research and explain 

immigration consequences to their clients.

In summary, this case highlights the difficulties of a motion under section 1473.7 

challenging a guilty plea that was made almost 20 years earlier. Gonzalez's declaration 

contains little helpful information as he does not recall what advice he received. He does 

not claim that he asked his attorney about the immigration consequences of his plea. He 

does not assert that his attorney provided him incorrect advice about the immigration 

consequences of his plea. Gonzalez does not offer any evidence that a more immigration 

favorable plea was available to him in August 2000. There is no indication that Gonzalez 

asked his attorney to obtain such a plea. Although Gonzalez's attorney, Guerrero, does 

not have any independent recollection regarding representing Gonzalez, Guerrero 

testified to what his practices were in August 2000 and what he was likely to have done. 

According to Guerrero, he would have advised Gonzalez at least twice that he would be 

deported if he pled guilty. The superior court found Guerrero very credible. Gonzalez 

offers no evidence to contradict Guerrero's testimony. On the record before us, Gonzalez 
22

has not carried his burden of establishing the first prong of the Strickland test, and thus, 

he has not shown by a preponderance of the evidence that he is entitled to relief under 

section 1473.7. (§ 1473.7, subd. (e).)

DISPOSITION

The order is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.