1

Filed 10/4/21 (opinion following transfer from Supreme Court)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ESTEBAN ZARATE BRAVO,

Defendant and Appellant.

E072782

(Super.Ct.No. RIF75184)

OPINION

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, 

Judge. Affirmed.

Law Offices of Paul C. Supple and Paul C. Supple, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha 

Cortina and Melissa A. Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
2

I

INTRODUCTION

On June 24, 1997, defendant Estaban Zarate Bravo pleaded guilty to and was 

convicted on a plea bargain agreement of: a felony violation of domestic violence 

(Pen. Code,1 §273.5, subd. (a); count 1) and felony violation of child cruelty (§ 273a, 

subd. (a); count 2). The trial court sentenced defendant to two years’ incarceration, 

suspended, and placed him on formal probation for 36 months on terms and conditions 

including 25 days’ custody, for which he was granted time served. 

On December 11, 2018, defendant filed a motion to vacate the judgment pursuant 

to sections 1016.5 and 1473.7. On March 19, 2019, the trial court denied the motion. On 

December 23, 2020, following defendant’s appeal of the trial court’s decision, this court 

affirmed. (People v. Bravo (2020) 58 Cal.App.5th 1161.) On March 24, 2021, our 

Supreme Court granted review, and on May 3, 2021, issued People v. Vivar (2021) 11 

Cal.5th 510, disapproving of this court’s opinion in Bravo. On June 9, 2021, the 

Supreme Court transferred the appeal in Bravo back to this court with directions to vacate 

the decision and reconsider the matter in light of its decision in Vivar. (People v. Bravo, 

S266777, Supreme Ct. Mins., June 9, 2021.) On June 24, 2021, defendant filed a 

supplemental brief; on July 6, 2021, respondent filed their supplemental brief. 

1 All statutory references are to the Penal Code unless otherwise indicated. 
3

II

FACTUAL BACKGROUND

As we observed in the original opinion, the record on this appeal is slim and 

includes scant records dating back to the original proceedings and plea taken in 1997. It 

does not contain or relate the facts underlying defendant’s pleas and convictions. The 

only records dating to the 1997 proceedings are the felony complaint, two minute orders, 

and the advisement of rights. Most of the record is of proceedings in the trial court at the 

time of defendant’s 2018–2019 motion to vacate the earlier judgment. 

The felony complaint alleged that as to count 1, on June 7, 1997, defendant 

violated section 273.5, subdivision (a), by willfully and unlawfully inflicting a corporal 

injury resulting in a traumatic condition upon Lucy D., who was defendant’s spouse; and, 

as to count 2, also on June 7, 1997, defendant violated section 273a, subdivision (a), by 

willfully and unlawfully, under circumstances and conditions likely to produce great 

bodily harm and death, cause and permit an infant, Esteban Jr., to suffer, and inflicted 

unjustifiable physical pain and mental suffering, and did willfully cause and permit the 

person and health of said infant to be injured. The two minute orders report the felony 

arraignment on June 10, 1997, at which defendant pleaded not guilty, and the preliminary 

hearing on June 24, 1997, at which defendant pleaded guilty to both counts pursuant to a 

plea agreement and the sentence awarded as a result therefrom.

Defendant is a native of Mexico and Spanish is his first language. He appeared in 

custody at a hearing on June 24, 1997, at which he pleaded guilty to both counts with the 
4

use of an interpreter. He was admonished as to his rights, and initialed acknowledgment 

on a form provided therefor.2 These rights included the right to a speedy trial; to face 

and cross-examine witnesses; to ask the court to compel witnesses to attend trial; against 

self-incrimination; and to be represented by a lawyer. He then initialed the statement that 

“I understand that when I enter a plea of guilty, I waive, or give up each of the rights as 

stated above.” 

Immediately following that recitation and waiver, the form enumerates the 

“Consequences of Plea,” stating, “In addition to the consequences discussed in open 

court, and on page two of this form, I am further aware that my guilty plea to a felony 

will have the following consequences:” followed by six specific statements of 

consequences including firearm ownership, restitution fines, and others. The sixth such 

consequence states, “If I am not a citizen of the United States, I understand that this 

conviction may have the consequences of deportation, exclusion from admission to the 

United States, or denial of naturalization pursuant to the laws of the United States.” The 

form was signed by the defendant, defense counsel David Ross, and interpreter Elias 

Uribe. The plea agreement specified that the custody term would be two years 

suspended, with a restitution fine of not more than $200, and that a total of 25 days’ 

credit for time served was computed. Defendant also initialed a block stating, “I have 

had an adequate time to discuss my case with my attorney, including time to discuss 

2 A so-called Tahl form, reflecting the constitutional advisements under In re Tahl

(1969) 1 Cal.3d 122, disavowed on other grounds in Mills v. Municipal Court (1973) 10 

Cal.3d 288 and Boykin v. Alabama (1969) 395 U.S. 238. 
5

(1) my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses 

I may have to the charges against me.” Defendant’s defense counsel, David Ross, also 

signed the form under the block stating, “I am satisfied that (1) the defendant understands 

his/her constitutional rights and understands that a guilty plea would be a waiver of these 

rights; (2) that the defendant has had an adequate opportunity to discuss his/her case with 

me, including any defenses he/she may have to the charges; (3) that the defendant 

understands the consequences of the his/her [sic] guilty plea.” 

Defendant attests by declaration that the immediate advantage of his plea was that 

he was to be released from custody that same day so that he could return to his 

construction job without being fired and could therefore support his spouse and their 

child.3 Of more immediate importance, defendant was informed by counsel and the 

prosecution that Immigration and Customs Enforcement (ICE) would conduct a sweep of 

the county jail where he was being held by the next morning; being released that 

afternoon allowed him to avoid the ICE sweep and likely deportation as a result of that 

encounter. 

Defendant now contends that at the time he executed the plea agreement, pleading 

guilty to sections 273.5, subdivision (a), and 273a, subdivision (a), he was unaware of 

future immigration consequences of his plea. Specifically, he asserts that he recently 

consulted with an immigration attorney for advice as to his intent to renew an application 

for lawful permanent status, for which he contends he is otherwise eligible through his 

3 He refers to his spouse as his girlfriend; it is unclear from this record when or if 

the marital status changed. 
6

wife who is a U.S. citizen; he also contends his convictions resulting from his guilty pleas 

will result in certain denial of his intended citizenship application. Finally, he contends 

that he was never informed that he could be deported at any time after entering these 

pleas. In that light, he claims by his declaration he was never admonished pursuant to the 

requirements of section 1016.5. 

Defendant argues that had he known these consequences, he would not have 

executed the plea agreement but would have relied on his defenses and gone to trial. He 

believes the prosecution’s case was weak based on his then-girlfriend’s alleged statement 

to the court at his arraignment that he had not “touch[ed], hurt or do[ne] any of the things 

to her or our son that I was accused of.” Further, he claims that the police reports with 

witness statements prepared by the police “contained factual allegations that were 

wrong.” 

III

DISCUSSION

A. Standard of Review

Our Supreme Court has clarified the standard of review for motions brought 

pursuant to section 1473.7, subdivision (a)(1), in Vivar, supra, 11 Cal.5th 510. The 

Supreme Court held the independent standard of review applies to all prejudice 

determinations under section 1473.7, subdivision (a)(1). (Vivar, at pp. 523-526.)4 “A 

4 Vivar does not appear to address the standard for motions under section 1016.5. 

However, as discussed herein, a simple reading of the plea bargain form defendant signed 

in 1997 reveals that the language on the form matches the required statutory language in 

section 1016.5. 
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standard of independent review—the same standard governing our review of these claims 

on habeas corpus—is most consistent with section 1473.7’s purpose: to offer relief to 

those persons who suffered ‘prejudicial error’ but are ‘no longer imprisoned or 

restrained’ and for that reason alone are unable to pursue relief on habeas corpus. 

[Citation.]” (Id. at p. 525.) “ ‘[U]nder independent review, an appellate court exercises 

its independent judgment to determine whether the facts satisfy the rule of law.’ 

[Citation.] When courts engage in independent review, they should be mindful that 

‘ “[i]ndependent review is not the equivalent of de novo review . . . .” ’ [Citation.] An 

appellate court may not simply second-guess factual findings that are based on the trial 

court’s own observations. [Citations.]” (Id. at p. 527, italics omitted.) 

In other words, we should “give particular deference to factual findings based on 

the trial court’s personal observations of witnesses.” (Vivar, supra, 11 Cal.5th at pp. 527-

528.) 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, ‘[t]he 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. [Citation.] 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, fn. omitted.)
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B. The Trial Court’s Rulings

As to defendant’s argument under section 1016.5, “(a) Prior to acceptance of a 

plea of guilty or nolo contendere to any offense punishable as a crime under state law, 

except offenses designated as infractions under state law, the court shall administer the 

following advisement on the record to the defendant: [¶] If you are not a citizen, you are 

hereby advised that conviction of the offense for which you have been charged may have 

the consequences of deportation, exclusion from admission to the United States, or denial 

of naturalization pursuant to the laws of the United States.” (§ 1016.5, subd. (a).) 

The trial court found that, “The 1016.5 does fail. [¶] It’s clear in the written 

advisement that Mr. Bravo initialed next to the applicable portions and signed the 

document, and the court minutes, which are attached to each of Mr. Bravo’s motions as 

well as part of the court file, indicate that at the time Judge Thierbach took the plea, he 

found that he understood the constitutional rights, the nature of the charges, and 

consequences of the plea when Mr. Bravo entered his guilty pleas to Count 1 and 2.[5]

 

[¶] So the 1016.5 fails.” 

As to defendant’s argument under section 1473.7, “(a) A person who is no longer 

in criminal custody may file a motion to vacate a conviction or sentence for either of the 

following reasons: [¶] (1) The conviction or sentence is legally invalid due to prejudicial 

error damaging the moving party’s ability to meaningfully understand, defend against, or 

5 The trial court is referring to the findings recorded in the court minutes at the 

June 24, 1997 hearing: “Crt finds plea is free & voluntary. Crt finds deft knows & 

understands constitutional rights, nature of charges & consequences of his/her plea.”
9

knowingly accept the actual or potential adverse immigration consequences of a plea of 

guilty or nolo contendere. A finding of legal invalidity may, but need not, include a 

finding of ineffective assistance of counsel. [¶] (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.” (§ 1473.7, subd. (a).) 

In this case, the trial court addressed both prongs of section 1473.7, 

subdivision (a): “On the 1473.7, there were two issues raised. One was the issue of 

alleged factual innocence, which after reading everything I don’t see any credible 

evidence to support. So on that basis, it’s denied. [¶] Additionally, once again he was 

properly advised of the immigration consequences. He initials the section which does 

state he understands that he has understood each of the above consequences after reading 

them. And I have to take him at his word that he read and understood all of the 

consequences of his plea. [¶] So his 1473.7 is also denied.” 

C. Defendant’s Claim

Here, defendant contends that his guilty pleas were not voluntary, knowing nor 

intelligent and that this court should grant his motion to vacate judgment pursuant to 

sections 1016.5 and/or 1473.7 or, alternatively, remand directing the trial court to grant 

the motion. 

At issue is whether, at his plea hearing on June 24, 1997, he was adequately 

advised of the immigration consequences of his plea of guilty to the charges of spousal 

abuse and child abuse. Because a claim such as defendant’s may be brought without 
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invoking ineffective assistance of counsel, he is not limited to having to prove prejudice 

under the Strickland v. Washington (1984) 466 U.S. 668 (Strickland) standard, which 

requires a showing that counsel’s representation fell below an objective standard of 

reasonableness (id. at p. 688) and demonstrate prejudice with a showing that “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different,” meaning “a probability sufficient to undermine 

confidence in the outcome.” (Id. at p. 694.) He may instead “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.’ 

[Citations.]” (People v. Camacho (2019) 32 Cal.App.5th 998, 1010 (Camacho).) This 

prejudice analysis applies equally to claims under section 1473.7 as to claims under 

section 1016.5. (Ibid.) 

D. Analysis 

As directed by our Supreme Court, we reconsider defendant’s appeal in light of 

Vivar. Accordingly, we employ the standard of independent review in these claims, but 

find that in this circumstance it makes no difference to the outcome we determined before 

the Supreme Court’s transfer of the case back to us. That is at least in part because of the 

limited record presented to us on appeal, little of which dates to the original trial. The 

majority of the record dates to the proceedings in 2018 and 2019 which were under the 

direct observation of the trial court that we review here. That court’s decision was based 

mainly on defendant’s 2018 declaration and the hearing conducted March 19, 2019. To 
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the extent the trial court did not make explicit factual findings, we take that into account 

in our review. 

First, as to defendant’s section 1016.5 claim, the advisement required under 

section 1016.5, subdivision (a), supra, is satisfied by the plain-language admonition on 

defendant’s 1997 plea bargain form: “If I am not a citizen of the United States, I 

understand that this conviction may have the consequences of deportation, exclusion 

from admission to the United States, or denial of naturalization pursuant to the laws of 

the United States.” Certainly, the term “may have” as used in section 1016.5 is itself 

inadequate to properly advise a defendant of the mandatory deportation consequences of 

a given plea, but that is not the point on this claim. The language required in the statute 

was properly stated in defendant’s plea agreement. Accordingly, the section 1016.5 

claim fails. 

Second, on independent review, we find that defendant’s section 1473.7 claim 

fails for failure to show prejudice. 

Notwithstanding its sufficiency to meet the statutory language of section 1016.5, 

the advisement on defendant’s 1997 plea agreement was inadequate to advise him of the 

mandatory immigration consequences of his plea. “[T]he words ‘may have’ in a 

section 1016.5 immigration advisement are not an adequate immigration advisement” for 

defendants with serious offenses mandating deportation or other severe immigration 

consequences. (People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065 (Ruiz).) In such cases, 
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“[d]efendants must be advised that they will be deported, excluded, and denied 

naturalization as a mandatory consequence of the conviction.” (Ibid.) 

Here, at least defendant’s plea to section 273.5 represented such consequences. A 

conviction under section 273.5 is an aggravated felony for the purpose of the federal 

Immigration and Nationality Act (INA). (Moncrieffe v. Holder (2013) 569 U.S. 184, 

187-188; Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1210-1211.)6 One convicted of an 

aggravated felony is presumptively deportable. (8 U.S.C.S., §§ 1227, subd. (a)(2)(A)(iii), 

1228, subd. (c).) 

Therefore, the advisement given defendant in 1997 was inadequate under Ruiz to 

satisfy section 1473.7. Notwithstanding, defendant must also show prejudice from the 

advisement. In that light, he must convince the trial court that it is “reasonably probable” 

that “if properly advised, [the defendant] would have rejected an existing plea offer in the 

hope or expectation that he or she might thereby negotiate a different bargain or, failing 

in that, go to trial.” (People v. Martinez (2013) 57 Cal.4th 555, 567-568 (Martinez) 

[standard for section 1016.5].) “[I]n determining the credibility of a defendant’s claim

[of prejudice], the court in its discretion may consider factors presented to it by the 

parties, such as 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 

6 On the other hand, a violation of section 273a is not an aggravated felony for 

purposes of the INA. (Ramirez v. Lynch (9th Cir. 2016) 810 F.3d 1127, 1133-1134.) 
13

immigration-neutral bargain that a court would accept.” (Martinez, at p. 568; see Vivar, 

supra, 11 Cal.5th at pp. 529-530.) Here, these factors are conspicuously absent. 

For example, in Vivar, the defendant had an opportunity to take an offered

immigration-neutral charge of burglary. (Vivar, supra, 11 Cal.5th at p. 518.) Though he 

rejected it (to his regret later), its existence at all inured to the defendant’s benefit in 

determining prejudice. Here, with regard to the section 273.5 felony domestic violence 

charge, no immigration-neutral charge existed. Nor did defendant request or even 

explore the possibility of an immigration-neutral charge as to this offense. He did plead 

to, and was convicted on, an apparently immigration-neutral felony, namely, the 

section 273a child cruelty charge. The record shows no attempt to negotiate a plea

leveraging the immigration-neutral count by admitting, for example, solely the 

section 273a count in place of the section 273.5 count requiring mandatory deportation. 

Neither does the petition suggest the possibility of having done so. Nor is there any 

indication whatsoever that such a suggestion would have been acceptable in negotiations 

with the People or when presented to the trial court. Furthermore, defendant presents no 

evidence that he ever participated in contemporaneous discussions or negotiations for 

immigration-neutral charges with the People, or even that he discussed the possibility of 

immigration consequences⸺other than described below⸺with his counsel. Absent any 

such record evidence, defendant simply claimed in his declaration, without elaboration or 

explanation of his basis for knowledge, that counsel did not “explore any immigration 

neutral charges.” However, “a defendant’s self-serving statement—after trial, conviction, 
14

and sentence—that with competent advice he or she would have accepted [or rejected] a 

proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of 

proof as to prejudice, and must be corroborated independently by objective evidence.” 

(In re Alvernaz (1992) 2 Cal.4th 924, 938; see In re Hernandez (2019) 33 Cal.App.5th 

530, 547 (Hernandez) [“ ‘[c]ourts 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. Judges should instead look to contemporaneous evidence to substantiate a 

defendant’s expressed preferences. [Citation.]’ ”]; People v. Mejia (2019) 36 

Cal.App.5th 859, 872 (Mejia) [“[i]n a postconviction setting, courts should not simply 

accept a defendant’s statement of regret regarding the plea, courts should also ‘look to 

contemporaneous evidence to substantiate a defendant’s expressed preferences.’ 

[Citation.]”].) Here, notably, defendant offers no statement or declaration by his trial 

counsel or any other contemporaneous evidence other than the statements in his 

declaration to support that claim. Accordingly, there was no supportable reason for 

defendant to believe the court would accept an immigration-neutral alternative charge. 

In that light, an examination of the contemporaneous evidence surrounding 

defendant’s plea reveals his priorities in his plea bargaining and the nature of the aversion 

to immigration consequences he actually displayed. In the absence of a contemporary 

record of the plea negotiations before this court, defendant’s declaration is the main 

substantive source of contemporaneous evidence of his priorities and intent at the time. 

To the extent the trial court did not personally observe and make factual findings of 
15

defendant as a witness, we review the pertinent statements independently. (Vivar, supra, 

11 Cal.5th at pp. 528-529.) Chief among these are defendant’s assertions in his 

declaration of his family in the United States and his need to support them: “At the 

time of this conviction hearing, I was working full-time in construction and I was 

learning many new carpentry skills. I had a young family to take care of that included 

my one-year old son . . . , his mother, my live-in girlfriend and she was caring for them 

on a full-time basis. I was the sole financial provider in the household. All of them 

depended on my income and my job. If I returned to work within the same week of my 

plea, I would not lose my full-time job for abandonment and I could resume paying the 

bills. [¶] . . . Additionally, because my bills were accruing, I was seeking release from 

jail to return to my full-time job to keep my family’s housing and continue to support my 

live-in girlfriend and my infant son.” Otherwise, defendant makes general, otherwise 

unsupported statements that neither counsel nor the interpreter advised him of the 

immigration consequences of his guilty plea and that he would not have taken the plea if 

he had known of eventually being deported and barred from lawful permanent status. 

These statements do not avail defendant. They simply emphasize that he elected 

to take the plea bargain to obtain release and return to his girlfriend and son and resume 

his job. There is nothing to substantiate his claim that had he known of the ultimate 

immigration consequences he would have refused the plea bargain. In fact, although the 

statements are in the declaration, counsel did not address them in either the motion to 

vacate in the trial court, nor in the March 19, 2019 hearing, nor did defendant testify. 
16

(Mejia, supra, 36 Cal.App.5th at pp. 864-865 [defendant testified at § 1473.7 motion 

hearing]; Camacho, supra, 32 Cal.App.5th at p. 1002 [same].) 

To the extent that defendant now appears to address his family status in 1997 in 

his opening brief on appeal, he states that the ultimate immigration consequences 

“manifested at a time when he had a 1-year old son, his child’s dependent mother as a 

live-in girlfriend and a promising career in carpentry. Had he known the true 

immigration consequences, he would have made arrangements for the short-term care of 

his child and [his child’s] mother, rather than risk the ability to care for them in the longterm and be denied the opportunity to raise his son or see him grow up.” Yet, that 

argument by counsel is not supported in defendant’s declaration, in which he made no 

such statement. 

In making this assertion, counsel purports to show defendant’s personal 

attachments to this country in support of his petition. Personal attachments to the United 

States, including family, are evidence of a defendant’s desire to vacate an earlier plea 

based on a lack of understanding of immigration consequences. (Vivar, supra, 11 Cal.5th 

at pp. 530-531.) Yet, the difference here between defendant and Vivar is significant. 

Vivar was brought to the United States from Mexico at age six and remained here for 

40 years before his deportation determination. He had a wife, two children (including 

one about to deploy in the Air Force) and two grandchildren, all of whom were United 

States citizens. At the time of his deportation, his wife was undergoing radiation 

treatment for a thyroid condition. He had no ties to Mexico, spoke Spanish “ ‘like an 
17

American’ ” and was an outsider in Mexico. Further, Vivar also sent a lengthy series of 

letters to the court expressing his interest in avoiding deportation and reasserting his 

desire to remain in the U.S. and become “ ‘an asset to my community and not a 

liability.’ ” (Id. at p. 531.) As our Supreme Court put it, “[t]ime and again, the record 

readily conveys how Vivar would have considered his immigration status ‘the most 

important part’ of his decision to plead.” (Id. at p. 530.) Vivar’s ties to the United States 

and his frequently and openly asserted immigration interests are not reflected in 

defendant’s case here. 

Without minimizing the importance of defendant’s personal life, his ties to the 

United States and the consideration he gave to his immigration status were substantially 

different. He came to the United States at age 18 and had only been in the country four 

and one-half years at the time of his guilty plea. He did not claim in his declaration that 

his relationship with his girlfriend and son would lead him to decline a plea if he had 

known the ultimate immigration consequences of the plea; moreover, the offenses 

making him a candidate for mandatory deportation were domestic violence and child 

cruelty against those very persons. His declaration simply claims he elected to plead and 

get out of jail immediately to return to support them and avoid ICE. There is simply no 

evidence, contemporaneous or otherwise, outside defendant’s self-serving declaration 

that he gave any thought to his immigration status whatsoever other than to avoid an incustody encounter with ICE in 1997. Thus, counsel’s argument in the opening brief is 

unsupported. 
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Additionally, neither in the opening brief nor in his declaration does defendant 

discuss how the costs of rejecting the plea—the potential sentence he faced, his ability or 

lack thereof to make alternative arrangements for his family, and so on—would have 

factored into his analysis. He simply makes a conclusory claim that he would have taken 

the alternative route without consideration as to the opportunity cost of doing so. Yet, to 

determine the reasonable probability that defendant would have rejected a plea offer, a 

court would need to consider not only defendant’s ties to the United States and his family 

situation, but to consider them in light of the consequences of his rejecting the plea and 

proceeding to trial. Without evidence of the probability of an alternate disposition, and 

without evidence of both the negative and positive consequences of the plea and how the 

defendant would have weighed them, a defendant cannot support a showing that it is 

reasonably probable that, if properly advised, he would have rejected the section 273.5 

plea offer “in the hope or expectation that he or she might thereby negotiate a different 

bargain or, failing in that, go to trial.” (Martinez, supra, 57 Cal.4th at p. 567.) As noted 

above, defendant does not even address this point in his declaration. 

Moreover, to put the entire point in context, we reiterate that the events to which 

he pleaded guilty in 1997 were domestic violence and child cruelty felonies against that 

very girlfriend and son, undercutting any claim now that he would have put himself in 

immediate peril of deportation in 1997 by a pending ICE sweep at the jail in order to go 

to trial in an attempt to avoid later immigration consequences. Defendant simply offers 

no contemporaneous evidence here to support such a claim. 
19

Accordingly, we find that the trial court did not abuse its discretion in denying 

defendant’s section 1473.7 application on the consideration of prejudicial error.

Defendant also claims error in the trial court’s analysis of his section 1473.7 claim 

as including an assertion of actual innocence. Defendant attested in his declaration that 

he had certain defenses at the time he entered his plea in 1997. Among these were his 

belief that the prosecution’s case was weak based on his then-girlfriend’s statement to the 

court at defendant’s arraignment that he had not touched, hurt, or done the things he was 

accused of to her or her son and that there were incorrect factual allegations in the police 

reports and witness statements the police prepared. Despite these assertions, defendant 

claims he never raised actual innocence, but simply articulated his defenses in his 

declaration to show that had he been aware of the immigration consequences, he would 

not have taken the offered plea agreement but would have relied on his defenses at trial. 

Accordingly, he contends, the trial court committed “reversible error.” 

The judge’s ruling followed the language of section 1473.7 itself. Subdivision (a) 

provides two reasons that a person no longer in custody who seeks his conviction vacated 

may obtain relief. First, that 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.” Second, that “[n]ewly 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.” (§ 1473.7, subd. (a).) Based on defendant’s assertion of 
20

having defenses to the original charges against him including his girlfriend’s testimony 

and the inaccuracy of the police reports, we find no abuse of discretion in the trial court 

having addressed the second, actual innocence, prong of section 1473.7. 

Defendant’s claims are without merit. 

IV

DISPOSITION

The judgment of the trial court is affirmed. 

CERTIFIED FOR PUBLICATION

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RAPHAEL

J.