Filed 3/8/23 P. v. Villalba CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CESAR ALFREDO VILLALBA,

Defendant and Appellant.

 B318353

 (Los Angeles County

 Super. Ct. No. VA143872)

APPEAL from an order of the Superior Court of Los 

Angeles County, LaRonda J. McCoy, Judge. Reversed and 

remanded.

Douglas Jalaie for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle, Steven D. Matthews and 

David F. Glassman, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Defendant and appellant Cesar Alfredo Villalba (defendant) 

appeals the denial of his motion brought pursuant to Penal Code 

section 1473.7, subdivision (a)1 to withdraw his 2017 no contest 

plea to a violation of section 273.5 and to vacate his conviction. 

He contends that he did not meaningfully understand the actual 

adverse immigration consequences of the conviction because his 

counsel misadvised him, and the sentencing court gave a 

contradictory advisement. He also contends that he would not 

have agreed to the plea if he had understood, and thus the trial 

court erred in denying the motion. As we find that defendant’s 

undisputed evidence demonstrated a reasonable probability that 

if he had been properly advised of the immigration consequences 

of his plea, he would not have pled no contest to an offense 

requiring mandatory deportation, we reverse the order and 

remand with directions to the trial court to grant the motion and 

vacate the conviction pursuant to section 1473.7, subdivision (e).

BACKGROUND

Defendant’s plea and conviction

On January 26, 2017, defendant was charged by felony 

complaint with inflicting corporal injury on his spouse, in 

violation of section 273.5, subdivision (a). The complaint also 

alleged pursuant to section 12022.7, subdivision (c) that 

defendant inflicted great bodily injury on the victim. The 

probation report explained that defendant and his wife, Jessica 

Martinez began arguing while dining and intoxicated. Arguing in 

the parking lot of the restaurant, defendant punched his wife in 

the face twice and threw her to the pavement, where she struck 

1 All further unattributed code sections are to the Penal Code 

unless otherwise stated.
3

her face and head. Another couple intervened, and police were 

called. Martinez was treated at the hospital and released. She 

told the probation officer that she and defendant had been 

together for 14 years, married for three, and together they were 

raising one child in common and her three children. She denied 

any prior instances of domestic violence or other issues in their 

relationship and did not want a restraining order.

Three months later, on April 26, 2017, defendant waived 

preliminary hearing and negotiated a plea agreement under 

which he would plead no contest to the charge and admit the 

special allegation in exchange for a suspended imposition of 

sentence, conditioned upon 365 days in county jail, five years of 

felony probation, a protective order, 52 weeks of domestic 

violence classes and fines. After questions relating to defendant’s 

understanding of the terms and conditions, the court asked 

defendant, “. . . I don’t know if this applies to you or not. I don’t 

need to know. I just need to advise you that if you’re not a citizen 

of the United States, your plea of no contest will result in your 

deportation, denial of naturalization, denial of citizenship, denial 

of reentry into the country.” The court then asked, “Do you 

understand that?” and defendant replied, “Yes, Your Honor.”

The trial court also asked about the plea form that 

defendant had initialed and signed. Defendant was asked 

whether he had signed and dated the form and initialed the 

boxes, and whether he had read, understood, considered and gone

over with his attorney each of the constitutional rights that he 

would be waiving and the consequences of his plea. Defendant 

agreed that he had. The trial court accepted the plea, sentenced 

defendant on June 16, 2017, as agreed and struck the great 

bodily injury allegation.
4

In March 2021, defendant’s request to modify probation 

and for early termination was denied, and in November 2021, his 

request for a nunc pro tunc order reducing the jail time imposed 

to 364 days was denied.2

Section 1473.7 and related legal principles

In 2018, the Legislature passed Assembly Bill No. 2867 

(2017-2018 Reg. Sess.), amending section 1473.7 effective 

January 1, 2019, and declaring that section 1473.7 “shall be 

interpreted in the interests of justice and consistent with the 

findings and declarations made in Section 1016.2 of the Penal 

Code.” (Stats. 2018, ch. 825, § 1(c).) Among other things, section 

1016.2 provides:

“(g) The immigration consequences of criminal 

convictions have a particularly strong impact in 

California. One out of every four persons living in the 

state is foreign-born. One out of every two children 

lives in a household headed by at least one foreignborn person. The majority of these children are 

United States citizens. It is estimated that 50,000 

parents of California United States citizen children 

were deported in a little over two years. Once a 

2 “[W]hen, as in the present case, the parties negotiate a plea 

agreement that, among other express provisions, grants 

probation incorporating and conditioned upon the service of a 

specified jail term, the resulting term of incarceration is not—and 

may not be treated as—a mere standard condition of probation. 

Rather, the term of incarceration is in the nature of a condition 

precedent to, and constitutes a material term of, the parties’ 

agreement. As such, the jail term is not subject to subsequent 

modification without the consent of both parties, and cannot be 

altered solely on the basis of the trial court’s general statutory 

authority to modify probation during the probationary period.” 

(People v. Segura (2008) 44 Cal.4th 921, 935, fn. omitted.)
5

person is deported, especially after a criminal 

conviction, it is extremely unlikely that he or she ever 

is permitted to return.

“(h) It is the intent of the Legislature to codify 

Padilla v. Kentucky [(2010) 559 U.S. 356] and related 

California case law and to encourage the growth of 

such case law in furtherance of justice and the 

findings and declarations of this section.” (Italics 

added.)

Accordingly, “defense counsel [must] provide affirmative 

and competent advice to noncitizen defendants regarding the 

potential immigration consequences of their criminal cases [and]

must investigate and advise regarding the immigration 

consequences of the available dispositions . . . .” (§ 1016.2, subd. 

(a).)

As our Supreme Court stated in People v. Vivar (2021) 11 

Cal.5th 510 (Vivar), Padilla explained that “[b]ecause the 

prospect of deportation ‘is an integral part,’ and often even ‘the 

most important part,’ of a noncitizen defendant’s calculus in 

responding to certain criminal charges [citation], both the 

Legislature and the courts have sought to ensure these 

defendants receive clear and accurate advice about the impact of 

criminal convictions on their immigration status, along with 

effective remedies when such advice is deficient.” (Vivar, supra, 

at p. 516, quoting and citing inter alia, Padilla v. Padilla, supra, 

559 U.S. at pp. 360, 364 (Padilla).)

As relevant here, section 1473.7 authorizes a defendant 

who is no longer in criminal custody to file a motion to vacate a 

conviction or sentence where “[t]he conviction or sentence is 

legally invalid due to prejudicial error damaging the moving 

party’s ability to meaningfully understand, defend against, or 
6

knowingly accept the actual or potential adverse immigration 

consequences of a conviction or sentence.” (§ 1473.7, subd. (a)(1).)

The statute provides that “[a] finding of legal invalidity 

may, but need not, include a finding of ineffective assistance of 

counsel.” (§ 1473.7, subd. (a)(1).) Thus, although the motion to 

vacate may be based on errors by counsel, the moving party need 

not demonstrate ineffective assistance under the Sixth 

Amendment principles enunciated in Strickland v. Washington

(1984) 466 U.S. 668, 688. (People v. Camacho (2019) 32 

Cal.App.5th 998, 1008 (Camacho).)

Section 1473.7 requires a court to “vacate a conviction or 

sentence upon a showing, by a preponderance of the evidence, of 

‘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, subds. (e)(1), 

(a)(1).) . . . [Citation.] If the motion is meritorious, ‘the court 

shall allow the moving party to withdraw the plea.’ (Id., subd. 

(e)(3).)” (Vivar, supra, 11 Cal.5th at p. 523.)

Immigration consequences of a section 273.5 conviction

Under federal law, a noncitizen convicted of a crime of 

domestic violence is deportable. (8 U.S.C. § 1227, (a)(2)(E)(i).) A 

crime of violence for which the term of imprisonment is at least 

one year is an “aggravated felony.” (8 U.S.C. § 1101(a)(43)(F).) A 

noncitizen who is convicted of an aggravated felony at any time 

after admission is conclusively presumed deportable and is 

subject to mandatory removal. (8 U.S.C. § 1228(c); see id., 

§ 1227(a)(2)(A)(iii).) An aggravated felony conviction renders a 

noncitizen “ineligible for cancellation of removal, a form of 

discretionary relief allowing some deportable aliens to remain in 

the country. See [8 U.S.C. §] 1229b(a)(3), (b)(1)(C). Accordingly, 
7

removal is a virtual certainty for an alien found to have an 

aggravated felony conviction, no matter how long he has 

previously resided here.” (Sessions v. Dimaya (2018) 584 U.S. __ 

[138 S.Ct. 1204, 1210-1211].) A violation of Penal Code section 

273.5, subdivision (a) is a crime of violence. (Banuelos-Ayon v. 

Holder (9th Cir. 2010) 611 F.3d 1080, 1083, 1085.) It is thus an 

“aggravated felony” if it carries term of imprisonment of at least 

one year. (8 U.S.C. § 1101(a)(43)(F).)

As relevant here, section 273.5, subdivision (a) provides: 

“Any person who willfully inflicts corporal injury resulting in a 

traumatic condition upon [the offender’s spouse] is guilty of a 

felony [which is punishable] by imprisonment in the state prison 

for two, three, or four years, or in a county jail for not more than 

one year . . . .” Section 273.5, subdivision (a) is known as a 

wobbler. (People v. Jackson (2000) 77 Cal.App.4th 574, 576.) It 

is thus punishable either as a felony or a misdemeanor in the 

discretion of the sentencing court. (People v. Vessell (1995) 36 

Cal.App.4th 285, 288.) Where an offense is a wobbler and the 

court suspends imposition of sentence and grants probation, as 

the sentencing court did here, the offense is deemed a felony 

unless and until the court subsequently reduces it to a 

misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877, 890.) 

If not reduced, the offense remains “a felony for all purposes until 

judgment or sentence and if no judgment is pronounced it 

remains a felony [citations].” (People v. Esparza (1967) 253 

Cal.App.2d 362, 364-365.)

However, “whether a state classifies an offense as a 

‘misdemeanor’ is irrelevant to determining whether it is an 

‘aggravated felony’ for purposes of federal law.” (Habibi v. Holder

(9th Cir. 2011) 673 F.3d 1082, 1088.) For a crime of violence the 

determinative factor is “‘the term of imprisonment [of] at least 
8

one year.’ 8 U.S.C. § 1101(a)(43)(F).” (Arellano Hernandez v. 

Lynch (9th Cir. 2016) 831 F.3d 1127, 1132.)3 Moreover, it does 

not matter that defendant was not sentenced to prison or even 

that no sentence was imposed, as “‘[a]ny reference to a term of 

imprisonment or a sentence with respect to an offense is deemed 

to include the period of incarceration or confinement ordered by a 

court of law regardless of any suspension of the imposition or 

execution of that imprisonment or sentence in whole or in part.’

[8 U.S.C.] § 1101(a)(48)(B).” (Arellano Hernandez, at pp. 1132-

1133.) Thus, a suspended imposition of sentence and a grant of 

probation conditioned upon one year (365 days) in jail will render 

a violent crime an aggravated felony.

Defendant’s section 1473.7 motion4

In January 2022, defendant filed a motion under section 

1473.7 to have his conviction vacated. In support of the motion, 

defendant submitted his declaration as well as the declarations of 

Attorney Erick Munoz, who represented him at the time of his 

plea, and an immigration attorney regarding federal law.5

3 “[F]or purposes of [8U.S.C.] § 1101(a)(43)(F), a sentence of 

365 days qualifies as a ‘term of imprisonment [of] at least one 

year’ . . . .” (Habibi v. Holder, supra, 673 F.3d at p. 1088.)

4 The motion was heard by the Honorable LaRonda McCoy, 

who was not the judge who presided over defendant’s 2017 plea 

and conviction.

5 Munoz’s declaration was signed, but not under penalty of 

perjury. The clerk’s transcript contains page 1 of defendant’s 

declaration, which ends with paragraph 6 at the bottom of the 

page. There is no page 2. The People indicate that the signature 

page with defendant’s verification was omitted from the record. 

If it was not before the trial court, the prosecutor did not object 
9

Attached exhibits included letters of support from his wife, a 

United States citizen, his stepdaughters, in-laws, a niece, friends, 

and employer. Also attached were his marriage certificate, the 

birth certificates of his United States citizen children and 

stepchildren, and other exhibits documenting his longtime 

residence in the United States, including that he had become a 

lawful permanent resident of the United States in 2014.

In his declaration defendant averred that he was born in 

Mexico in 1979, came to the United States as a child with his 

parents in 1992, grew up in Los Angeles, met his wife in 2003, 

and they raised six children together.6 Defendant declared he 

had complied with all conditions of probation, including fees and 

all classes, and that he was detained by Immigration and 

Customs Enforcement (ICE), summoned to deportation 

proceedings due to conviction of an aggravated felony, and was 

currently incarcerated at a detention facility in Aldelato, 

California. Defendant described his plea experience as follows: 

“On April 26, 2017, my attorney Erick Munoz 

brought a plea deal offer from the District Attorney 

and thereby waived the irregularity. (See People v. Johnson

(2013) 222 Cal.App.4th 486, 493.) In any event, the trial court 

did not deny the motion for this reason, nor even mention the 

problem. Motion counsel told the court that he had expected to 

offer testimony at a later scheduled hearing on the section 1473.7 

motion and that this hearing, which took place just one week 

after the motion was filed, was a hearing on a request for nunc 

pro tunc resentencing. The trial court disagreed and ruled on the 

1473.7 motion without hearing testimony. Defendant does not 

assign error to the court’s refusal to set the matter for a later 

hearing.

6 In her letter of support Martinez stated that their six 

children were two of his, three of hers, and one of theirs together.
10

for me to plead no contest to the charge of domestic 

violence and serve 364 days [in] county jail. 

Mr. Munoz took me into the hallway outside the 

courtroom and had me sign and initial a document 

regarding my plea. Mr. Munoz had me sign a part of 

the form labeled, ‘immigration consequences.’ I did 

not read that portion, but I asked Mr. Munoz if my 

green card would be affected by the plea. Mr. Munoz 

told me that if I completed the probation and reduced 

the felony to a misdemeanor, then I could keep my 

green card. Mr. Munoz did not tell me that the felony 

domestic violence would be an aggravated felony and 

result in mandatory deportation. When we got into 

the courtroom with the Judge and the Prosecutor, I 

heard them say the sentence of 365 days.

“. . . Had I known that my guilty plea would 

certainly render me deported from the United States, 

I would have chosen to take my chances with a jury 

verdict or seek an alternate plea deal at the least. I 

had my wife and children and my right to be in the 

United States permanently. I would have risked a 

jury verdict [to] save myself from deportation. I 

know no other life than my life here in the United 

States. I would have taken additional jail or prison 

time in order to avoid deportation as well. I am 

willing to take additional time of incarceration even 

now to avoid deportation.”

Defendant declared that his only prior arrest was for 

driving under the influence of alcohol.

In his declaration, Attorney Munoz stated that he did not 

recall the case, but it was “likely possible” that he told defendant 

that immigration consequences would be avoided with a sentence 

of 364 days or with a reduction to a misdemeanor after 

completion of probation, and that it was also “likely possible” that
11

he did not request alternate pleas such as violations of section 

136.1 or 236.

The prosecutor did not oppose the motion, which was 

argued and denied on January 21, 2022. At the hearing, the 

prosecutor told the court that her supervisor had no objection to 

reducing the time in custody to 364 days (as defendant had 

unsuccessfully requested in November 2021).

7 Defense counsel 

clarified that the motion was to vacate the judgment under 

section 1473.7, and in the ensuing discussion with the court, 

counsel explained Munoz’s erroneous advice, defendant’s 

misunderstanding, and his statement that he would not have 

taken the plea bargain. During the discussion the court stated: 

“Counsel, I think we’re getting beyond the scope of what this 

motion is about. I understand that there are reasonable 

alternatives that would not lead to deportation. I get all of that. 

The only . . . issue before the court is what the advisements 

were.” The court continued: “If you’re talking about ineffective

assistance of counsel, that’s a different issue. That’s not a 1473.7. 

The question is, was he properly advised? And the answer is, 

yes, he was properly advised.”8

7 See footnote 2, ante, and People v. Segura, supra, 44 

Cal.4th at page 935.

8 When it denied the motion, the trial court was required to 

specify the basis for its conclusion (§ 1473.7, subd. (e)(4)). Here

the trial court’s basis was unclear. Early in the hearing the court 

stated, “The only issue the court is focused on is what the 

attorney said, what his understanding was, what the court 

advised, et cetera.” However, we discern no focus by the trial 

court on defendant’s understanding. We infer from the court’s 

comments that its ruling was based upon a finding that 
12

The prosecutor did not oppose the motion. Nevertheless, 

the motion was denied by the court.

9

Defendant filed a timely notice of appeal.

DISCUSSION

I. Timeliness of motion

Defendant was still on probation (until June 15, 2022) 

when he filed his motion in January 2022. The People’s sole 

contention in opposition to this appeal is that the order denying 

the motion must be affirmed because it was prematurely filed 

when defendant was still on probation, as a motion under section 

1473.7 is available only to a person who is no longer in criminal 

custody. (See § 1473.7, subd. (a).) The People rely on People v. 

Cruz-Lopez (2018) 27 Cal.App.5th 212, 220-221, and People v. 

DeJesus (2019) 37 Cal.App.5th 1124, 1130-1131, which held that 

a person on parole or probation for the subject offense is in 

“constructive custody” for purposes of a section 1473.7 motion. 

The People suggest that these two cases require affirming the 

denial of defendant’s premature motion regardless of the lower 

court’s reasoning. However, in the cited cases the appellate 

courts reviewed the denial of the premature motions on the 

merits, as the lower courts had done. (People v. De Jesus, supra, 

at pp. 1132-1137; People v. Cruz-Lopez, supra, at pp. 222-224.) 

Therefore we do not read them as providing authority for 

defendant had been properly advised by counsel and the court at 

the time of the plea.

9 “If the prosecution has no objection to the motion, the court 

may grant the motion to vacate the conviction or sentence 

without a hearing.” (§ 1473.7, subd. (d).)
13

affirming the denial of the motion based solely on its premature 

filing.

The trial court here heard the motion and decided it on the 

merits without mention of the time requirement. Nor did the 

prosecutor object to the motion or raise any issue of timeliness. 

The People have not cited any authority indicating that section 

1473.7, subdivision (a) limited the trial court’s jurisdiction, and 

as defendant was still on probation, the trial court did not lack 

fundamental jurisdiction over the subject matter and the parties.

(People v. Chavez (2018) 4 Cal.5th 771, 780; see § 1203.2.) “When 

a trial court fails to act within the manner prescribed by 

[statute], it is said to have taken an ordinary act in excess of 

jurisdiction. [Citation.] Such ‘ordinary’ jurisdiction, unlike 

fundamental jurisdiction, can be conferred by the parties’

decisions—such as a decision not to object to any perceived 

deficiency—and so is subject to defenses like estoppel, waiver, 

and consent.” (Chavez, at p. 780.)

“Whether the party should be estopped depends on a 

weighing of equities in the particular case, the effect of estoppel 

on the functioning of the courts, and considerations of public 

policy.” (People v. Ford (2015) 61 Cal.4th 282, 287, citing In re 

Griffin (1967) 67 Cal.2d 343, 348.) When the Legislature 

amended section 1473.7, it “explicitly stated its intended purpose 

was to make relief more broadly available to deserving 

defendants, given the critical interests at stake.” (Vivar, supra, 

11 Cal.5th at p. 525.) As relevant here, it is the express public 

policy of this state and the United States to avoid the harmful 

impact of deportation of foreign-born residents and their families, 

particularly their United States citizen children, based upon 

incorrect or insufficient information. (§ 1016.2, subds. (g), (h); 
14

Vivar, supra, at p. 516; see Padilla, supra, 559 U.S. at pp. 360, 

364.)

Given the circumstances, here, including the lack of 

objection from the prosecutor, the fact that the expiration of 

defendant’s probation was just five months away, allowing that if 

the prosecutor had objected, the trial court could have either 

dismissed without prejudice or continued the matter to a suitable 

time after that. (See In re Griffin, supra, 67 Cal.2d at p. 349.) 

We conclude that public policy supports going forward. We do not 

discern that the irregularity substantially affected the 

functioning of the courts, and we find that the prosecutor 

impliedly consented to the hearing on the premature motion. We 

thus reject the People’s contention.

II. Erroneous advice and defendant’s misunderstanding

Defendant contends that his defense counsel misadvised 

him by saying he would not be deported if his offense were later

reduced to a misdemeanor, and that the sentencing court 

misadvised him by stating that the deportation consequences 

may not apply to him. He asserts that he misunderstood the 

immigration consequences of the plea and would not have agreed 

to it if he had correctly understood them.

Defendant may be entitled to relief under section 1473.7 by 

showing that he accepted a plea due to an error that damaged his

“‘ability to meaningfully understand, defend against, or 

knowingly accept the actual or potential adverse immigration 

consequences’ of the plea. (§ 1473.7, subd. (a)(1).)” (Vivar, supra, 

11 Cal.5th at p. 528.) As the facts supporting defendant’s motion 

derive entirely from written declarations and other documents,

and the trial court did not make credibility or other factual 

findings, we independently review the denial of the 1473.7 
15

motion. (Vivar, at pp. 525-529; see People v. Lopez (2022) 83 

Cal.App.5th 698, 710-711 (Lopez).)

Munoz stated that it was likely (and) possible that he told 

defendant that “if he completed probation and reduced the felony 

to a misdemeanor that his conviction would no longer be 

deportable because it would be a misdemeanor with a maximum 

sentence of 364 days in jail.” It is probable that Munoz gave

defendant this advice, as he did not deny doing so. From that 

defendant brought the unsuccessful motion in November 2021 for 

a nunc pro tunc order reducing the jail time imposed to 364 days.

Even if the trial court had retroactively reduced 

defendant’s felony conviction to a misdemeanor and if defendant’s 

motion to reduce the jail time imposed to 364 days had been 

successful, it may not have changed his immigration status. 

“[F]ederal immigration law does not recognize a state’s policy 

decision to expunge (or recall or reclassify) a valid state 

conviction. ‘A conviction vacated for reasons “unrelated to the 

merits of the underlying criminal proceedings” may be used as a 

conviction in removal proceedings whereas a conviction vacated 

because of a procedural or substantive defect in the criminal 

proceedings may not.’” (Prado v. Barr (9th Cir. 2020) 949 F.3d 

438, 441.) Thus, “‘[a] conviction vacated for rehabilitative or 

immigration reasons remains valid for immigration purposes, . . . 

one vacated because of procedural or substantive infirmities does 

not.’” (Camacho, supra, 32 Cal.App.5th at p. 1005.) A retroactive 

reduction of the maximum misdemeanor sentence to 364 days

under section 18.5 would have no effect, as section 18.5 was 

enacted by the California Legislature for the purpose of 

mitigating mandatory removal under federal law. (See 

Velasquez-Rios v. Wilkinson (9th Cir. 2021) 988 F.3d 1081, 
16

1089.)10 “It is clear that federal statutes can specify when 

removal is permissible and also when a cancellation of removal is 

warranted. [T]hose federal law standards cannot be altered or 

contradicted retroactively by state law actions, and cannot be 

manipulated after the fact by state laws modifying sentences that 

at the time of conviction permitted removal or that precluded 

cancellation.” (Velasquez-Rios, at p. 1089.)11

We agree that defendant was misadvised, and the evidence 

supports his claim that he believed he would not be subject to 

adverse immigration consequences if he later had the offense or 

time in custody reduced and that he was able to do so. As no 

evidentiary objections were made to the evidence and the People 

have proffered no argument in opposition to the merits of the 

motion, the uncontroverted evidence has established a reasonable 

basis for his erroneous belief. The errors thus damaged 

defendant’s “‘ability to meaningfully understand, defend against, 

or knowingly accept the actual or potential adverse immigration 

consequences of [his] plea of’ nolo contendere. (§ 1473.7, subd. 

10 Section 18.5 provides that “[e]very offense which is 

prescribed by any law of the state to be punishable by 

imprisonment in a county jail up to or not exceeding one year 

shall be punishable by imprisonment in a county jail for a period 

not to exceed 364 days.” Despite the term “every offense” it 

applies to misdemeanors. (See Assem. Com. on Public Safety, 

Analysis of Sen. Bill No. 1310 (2013-2014 Reg. Sess.) as 

introduced Feb. 21, 2014, p. 2.)

11 Thus immigration consequences may have been avoided if

the offense had been declared a misdemeanor with custody of 364 

days or less imposed at the time of defendant’s plea and 

conviction. (See People v. Manzanilla (2022) 80 Cal.App.5th 891, 

907.)
17

(a)(1); see Camacho, supra, 32 Cal.App.5th at p. 1009; 

[citations].)” (Lopez, supra, 83 Cal.App.5th at p. 713.)

III. Prejudice

“What someone seeking to withdraw a plea under section 

1473.7 must show is more than merely an error ‘damaging [his]

ability to meaningfully understand, defend against, or knowingly 

accept the actual or potential adverse immigration consequences’ 

of the plea. (§ 1473.7, subd. (a)(1).) The error must also be 

‘prejudicial.’” (Vivar, supra, 11 Cal.5th at p. 528.) “[S]howing 

prejudicial error under section 1473.7, subdivision (a)(1) means 

demonstrating a reasonable probability that the defendant would 

have rejected the plea if the defendant had correctly understood 

its actual or potential immigration consequences.” (Id. at p. 529.)

In assessing whether the defendant has shown that reasonable 

probability, we consider the totality of the circumstances. (Ibid.) 

We independently review not only questions of law: “Ultimately 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. 528.) In assessing defendant’s showing, we 

also focus on what defendant would have done, not whether he 

would have achieved a more favorable result. (Id. at pp. 528-

529.)

Defendant stated that because his wife and children were 

here and he knew no life other than in the United States, he 

would have risked trial and additional jail or prison time in order 

to avoid deportation; and that he was still willing to take 

additional incarceration time to avoid deportation.

It is not enough for defendant simply to declare that he 

would not have accepted any plea that would result in 

deportation; he must corroborate such assertions with objective 

evidence. (Vivar, supra, 11 Cal.5th at p. 530.) Particularly 
18

relevant corroboration is evidence of the defendant’s ties to the 

United States. (Id. at pp. 529-530, citing Jae Lee v. United States

(2017) 582 U.S. __ [137 S.Ct. 1958, 1967-1969] and People v. 

Martinez (2013) 57 Cal.4th 555, 568.) In Vivar, the defendant’s 

ties to the United States were considerable, as he “was brought to 

this country at age six as a lawful resident, and he attended 

schools, formed a family, and remained here for 40 years. At the 

time of his plea, he had two children, two grandchildren, and a 

wife, all of whom are citizens and all of whom resided in 

California. By the time he was deported, his wife was undergoing 

radiation treatment for a thyroid condition.” (Vivar,. at p. 530.) 

In the California Supreme Court’s view, “these objective and 

contemporaneous facts corroborate, in a most convincing way, the 

statement in Vivar’s declaration that he ‘would never have 

plead[ed g]uilty’ if his attorney had informed him of the plea’s 

consequences.” (Id. at p. 531.)

The Vivar court pointed to People v. Mejia (2019) 36 

Cal.App.5th 859 and Camacho, supra, 32 Cal.App.5th 998 as 

other examples providing convincing corroboration of the 

defendant’s claim that he would not have taken the plea deal. 

(Vivar, supra, 11 Cal.5th at pp. 530-531.) In Camacho, the 

defendant was brought to the United States from Mexico as a 

child, attended school through high school in Los Angeles County, 

married a United States citizen, had one American citizen child 

at the time of his plea and two at the time of his motion, was 

employed, and had no other adult criminal convictions. 

(Camacho, supra, pp. 1011-1012.) In Mejia, the defendant came 

to the United States at age 14 from Mexico to be with his six 

siblings, mother, and other family members except his father, 

and within three days, was working in his brother’s paint shop. 

(People v. Mejia, supra, at p. 864.) At the time of his guilty plea, 
19

he was 22 years old, married with an infant child, and had a 

steady job, and no ties to Mexico, as his father had died. (Ibid.) 

At the time of his section 1473.7 motion, his two children were 

grown, and he was still married to his wife. (People v Mejia, at

p. 865.)

Here, too, defendant’s ties to the United States, which bear 

similarities to Vivar and its two examples, provide convincing 

corroboration of defendant’s claim that if he had correctly 

understood the consequences of his plea, he would have risked 

trial and additional jail or prison time in order to avoid 

deportation, and was still willing to take additional time of 

incarceration to avoid deportation. Defendant was born in 

Mexico in 1979, came to the United States as a child with his 

parents, attended middle and high school in Los Angeles, met his 

United States citizen wife in 2003, later married her and became 

a lawful permanent resident, raised six children with her, all

United States citizens. They remain married. His single prior

offense was driving under the influence of alcohol. In addition to 

defendant’s deep ties to the United States, his minimal 

experience with the criminal justice system, his legal residency, 

as well as the support from family, friends, and his employer also 

corroborate his claim that his ability to remain in the United 

States with his family was a paramount concern. (See People v. 

Lopez, supra, 83 Cal.App.5th at p. 715.)

In our independent judgment after viewing the totality of 

the circumstances, we find that defendant’s uncontradicted 

evidence has established by a preponderance of the evidence that 

due to his counsel’s misadvisement and inadequate research, 

coupled with the sentencing court’s confusing and contradictory 

advisement that its warning of certain deportation might not 

apply to him, he misunderstood the dire immigration 
20

consequences that would follow from his plea. It is also 

reasonably probable that he would have rejected the plea had he 

correctly understood its actual immigration consequences. We 

conclude that defendant has thus established prejudicial error

such that he is entitled to relief under section 1473.7.

DISPOSITION

The order denying the motion to vacate defendant’s 

conviction is reversed and the matter is remanded to the superior 

court with instructions to grant the motion and to vacate the 

conviction.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.