Filed 3/9/22 P. v. Angeles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL SILVA ANGELES,

Defendant and Appellant.

F079714

(Tulare Super. Ct.

No. TCM074428-01)

OPINION

APPEAL from an order of the Superior Court of Tulare County. Jennifer Shirk, 

Judge.

Lisa Bertolino, Public Defender, Thomas McGuire, Assistant Public Defender, 

and Judyanne Rogado, Deputy Public Defender for Defendant and Appellant.

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

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. 

Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

In 2001, appellant Manuel Silva Angeles (appellant) pleaded no contest to felony 

possession of cocaine (Health & Saf. Code, § 11550) and misdemeanor driving with a 

blood-alcohol content of 0.08 percent or greater (Veh. Code, § 23152, subd. (b)) and was 

placed on probation.

Appellant was not a citizen of the United States. At the time of his plea, according 

to postconviction declarations filed by his immigration attorney, appellant was “the 

derivative beneficiary” of a visa petition filed in 1992 by his father, and the petition had 

been “approved” but was “pending.”

Appellant declared that he became the subject to removal proceedings in 2014. In 

2018, appellant filed a motion to vacate his 2001 plea pursuant to Penal Code section 

1473.71, a statute that was enacted in 2016 and became effective on January 1, 2017. 

(People v. Mejia (2019) 36 Cal.App.5th 859, 861 (Mejia).) Section 1473.7 provides a 

basis for a noncitizen who is no longer in custody to move to vacate a conviction because 

of prejudicial error regarding adverse immigration consequences. If the court grants the 

motion, it shall permit the moving party to withdraw his plea. (§ 1473.7, subd. (e)(3).) 

Section 1473.7 applies retroactively and allows challenge to pleas and final convictions 

that occurred before the statute was effective. (People v. Rodriguez (2021) 68 

Cal.App.5th 301, 309–310.) The initial version of section 1473.7 was interpreted to 

require the moving party to establish prejudicial ineffective assistance of counsel at the 

time of the plea under the standard of Strickland v. Washington (1984) 466 U.S. 668. 

(People v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho); People v. Ruiz (2020) 

49 Cal.App.5th 1061, 1063 (Ruiz).)

Appellant’s section 1473.7 motion asserted the attorney who represented him at 

the plea hearing was prejudicially ineffective for failing to advise him that he was 

1 All further citations to “section 1473.7” are to the statute in the Penal Code.
3.

pleading to an offense that would result in his mandatory deportation and essentially 

nullify his pending visa petition. The court denied the motion based on the transcript of 

the plea hearing and found appellant’s postconviction declarations were not credible. It 

held the court discussed the immigration consequences with appellant and his attorney 

before it accepted his plea, and that discussion complied with section 1016.5. Appellant 

filed the instant appeal from that ruling.

Amendment of Section 1473.7

While this appeal was pending, the provisions of section 1473.7 were substantially 

amended, effective in 2019, to clarify the moving party is no longer required to establish 

ineffective assistance to obtain relief and vacate his conviction. Instead, the moving 

party must show by a preponderance of the evidence that his conviction “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 conviction or sentence.” (§ 1437.7, subds. (a)(1), (e)(4); 

People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar).)

Both appellant and the People acknowledge the 2019 version of section 1473.7 

applies to appellate review of the merits of appellant’s section 1473.7 motion to vacate, 

and that appellant is no longer required to prove prejudicial ineffective assistance to 

obtain relief. (See, e.g., Camacho, supra, 32 Cal.App.5th at p. 1009; Mejia, supra, 36 

Cal.App.5th at pp. 865–866, 871.)

Appellate Issues

In this appeal, appellant contends the court committed error when it denied his 

section 1473.7 motion for relief because he met his burden of proof as to both ineffective 

assistance as set forth in his motion, and the showing required by the 2019 amendments 

to section 1473.7 that he was not advised by either his attorney or the court that he faced 

mandatory deportation if he pleaded no contest to felony possession of cocaine, and the 
4.

failure to so advise was prejudicial because it affected his pending petition for lawful 

permanent resident status.

The People respond that appellant’s motion was not meritorious under either 

ineffective assistance or the 2019 version of section 1473.7. The People assert that at the 

plea hearing in 2001, the court complied with section 1016.5 and advised appellant of the 

immigration consequences, and both appellant and his attorney stated they had discussed 

such consequences before he entered the plea. The People further assert that at the time 

of the plea, the court made implied factual findings that accepted the credibility of these 

statements from appellant and his attorney since the court accepted appellant’s plea, and 

this court must defer to those factual findings and reject appellant’s subsequent 

declarations filed in support of his postconviction motions to vacate.

We find that appellant met his burden of proving his own subjective error about 

the mandatory immigration consequences resulting from his plea to felony possession of 

cocaine, as required by the 2019 amendments to section 1473.7. (Vivar, supra, 11 

Cal.5th at p. 529.) As to prejudice, we remand the matter for further appropriate 

proceedings for the superior court to address the nature and the status of visa petition 

filed by his father, and appellant’s knowledge about the status of that petition, at the time 

of his plea in 2001.

FACTS2

Around 9:00 p.m. on May 6, 2001, an officer with the California Highway Patrol 

responded to a dispatch about a solo vehicle spinout on southbound Highway 99 in 

Tulare. The officer arrived at the scene and spoke with appellant, who had been driving 

the vehicle. He detected a strong odor of alcohol from appellant’s breath. The officer 

asked appellant if he consumed any alcohol. Appellant said he drank two or three beers 

between 3:00 p.m. and 6:00 p.m. Appellant failed field sobriety tests.

2 Given appellant’s plea, the only facts about the offenses in the appellate record 

are from the law enforcement reports, as summarized in the probation report.
5.

Appellant was arrested and gave breathalyzer tests that registered blood-alcohol 

levels of 0.22 and 0.21 percent. Appellant was searched and a small baggie with a white 

powdery substance was found in his front shirt pocket. The substance was later 

determined to be 0.25 grams of cocaine.

PROCEDURAL BACKGROUND

The Charges

On May 8, 2001, a felony complaint was filed in the Superior Court of Tulare 

County charging appellant with count 1, felony possession of a controlled substance, 

cocaine (Health & Saf. Code, § 11350, subd. (a)); count 2, misdemeanor driving under 

the influence of alcohol and drugs (Veh. Code, § 23152, subd. (a)); and count 3, 

misdemeanor driving with a blood-alcohol content of 0.08 percent or greater (Veh. Code, 

§ 23152, subd. (b)). As to counts 2 and 3, it was alleged he had a blood-alcohol content 

of 0.20 percent and higher (Veh. Code, § 23578).

The Plea Hearing3

On May 15, 2001, Judge Allen convened a hearing on appellant’s case. Appellant 

was present and represented by David Rendahl, a deputy public defender.

According to the transcript, the parties stated that appellant was prepared to enter a 

plea, and they discussed possible dispositions with the court. Mr. Rendahl requested 

electronic monitoring in Los Angeles County. Ms. Price, the deputy district attorney, 

wanted pleas on all three counts, and said appellant’s blood-alcohol level was 0.21 or 

0.22 percent. The parties also discussed how much time he should serve.

Thereafter, the following exchange ensued:

“THE COURT: There might be only one problem though ... if 

he’s an alien and not a citizen and he’s out on the electronic monitor you 

know Immigration and Naturalization can snatch him up ... off the street 

and deport him for this type of offense even if he’s on the electronic 

3 Appellant filed the reporter’s transcript of the May 15, 2001, plea hearing as an 

exhibit in support of his 2014 motion to dismiss his convictions (§ 1385).
6.

monitor because he’s not in custody, physical custody. I think you need to 

warn him that if Immigration decided to, they could deport him, refuse him 

reentry or refuse him the right to become an American citizen because of 

this.

“Mr. RENDAHL: Yes, I did discuss that with him.

“THE COURT: He understands those possibilities?

“[APPELLANT]: Yes.”4 (Italics added.)

The court and the parties determined appellant’s maximum exposure was three 

years. The court advised appellant and obtained his waivers of his constitutional rights.

Appellant pleaded no contest to count 1, felony possession of cocaine, and 

count 3, misdemeanor driving with a blood-alcohol content greater than 0.08 percent; and 

admitted the allegation that he had a blood-alcohol content of 0.20 percent and higher. 

The court granted the People’s motion to dismiss count 2. The parties stipulated to a 

factual basis.

4 As will be discussed, post, section 1016.5 “requires that before accepting a plea 

of guilty or nolo contendere to any criminal offense, the trial court must advise the 

defendant that if he or she is not a United States citizen, conviction of the offense may 

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

naturalization pursuant to the laws of the United States. [Citation.]” (People v. Martinez

(2013) 57 Cal.4th 555, 558, italics added, fn. omitted.) Section 1016.5 only requires the 

court to advise of possible and not mandatory immigration consequences. (Ibid.)

“[A] validly executed waiver form is a proper substitute for verbal admonishment 

by the trial court. [Citation.]” (People v. Ramirez (1999) 71 Cal.App.4th 519, 521.) As 

we will also discuss, post, the California Supreme Court recently held that in determining 

the merits of a section 1473.7 motion to vacate, a section 1016.5 advisement on a plea 

form may be insufficient to mitigate the prejudice from the defendant’s erroneous beliefs 

about the impact of his plea on mandatory immigration consequences, since the statutory 

advisement states that deportation is a possibility. (Vivar, supra, 11 Cal.5th at p. 533.)

The court’s exchange with appellant and his attorney, quoted above, is the only 

evidence in the record about the section 1016.5 advisements in this case. The instant 

record does not include a change-of-plea form or any document signed by appellant that 

contained the section 1016.5 advisement.
7.

The court referred the matter to the probation department for a determination of 

whether to place appellant on felony probation. Defense counsel said appellant decided 

he would serve “the straight time here” and not go on electronic monitoring.

Sentencing

On August 7, 2001, the court held the sentencing hearing. Appellant was present 

with a different public defender. The court placed appellant on probation for three years 

subject to certain terms and conditions.

Probation Violation

On April 21, 2004, appellant appeared at a probation violation hearing with 

another deputy public defender and was assisted by an interpreter. Appellant admitted 

the allegations that he violated probation because he failed to make required payments of 

fines and fees, report to the probation officer, submit to testing, attend substance abuse 

counseling, register as a narcotics offender, and a new arrest for driving under the 

influence. The court reinstated him on probation, extended the period for two more 

years, and ordered him to serve 90 days in jail.

MOTION TO DISMISS (§ 1385)

On January 8, 2014, appellant, represented by retained counsel Anthony Pullara, 

filed a motion to dismiss his 2001 convictions for felony possession of cocaine and 

misdemeanor driving under the influence in furtherance of justice pursuant to 

section 1385.

Appellant’s Declaration

Appellant’s motion was supported by his sworn declaration, that he was “currently 

in removal proceedings before the United States Immigration Court,” and that his current 

immigration attorney, Katherine Lewis, told him that “if I had not admitted to violating 

probation, I would be eligible to adjust status (get a green card) and I would be eligible 

for relief from deportation.”
8.

Appellant declared that a visa petition had filed by his father on his behalf, and it 

was pending at the time of his plea:

“When I admitted to violating probation, my immigration status was 

already extremely important because I had been living in the United States 

for 11 years and I had every intention of remaining in the U.S. and 

eventually become a citizen.

“I immigrated to the United States with my entire family. When we 

left Mexico, my father was a permanent legal resident (green card holder). 

My intention was to eventually become a United States citizen in the same 

fashion that my father became a citizen years later. In fact, my father, who 

already had his green card, filed a visa petition on my behalf in 1992. 

However, there was a long wait time for visas filed by lawful permanent 

resident parents on behalf of their adult children from Mexico.

“If I had understood that I was giving up all possible immigration 

remedies by admitting to violating probation, I would not have admitted. I 

would have fought the case through the hearing and would have requested 

for my attorney to try to negotiate a modification of probation with 

additional punishments without having to admit the violation.” (Italics 

added.)

Appellant declared he came to the United States in search of a better life. He was 

married to a citizen, and they had two children who were also citizens. He had been 

employed for the past three years by a company as a pipelayer and was the main source 

of income for his family.

Ms. Lewis’s Declaration

Appellant’s motion was supported by a sworn declaration from Katherine Lewis, 

appellant’s immigration attorney. She did not represent him at the time of his plea, and 

he retained her when he filed his postjudgment motions for relief.

Ms. Lewis stated that appellant was 37 years old, and his felony conviction for 

possession of cocaine was considered “a controlled substance offense” under federal 

immigration law. As a result of his conviction and probation violation, appellant was 

deportable and inadmissible to the United States, he was unable to adjust his status of 
9.

being a lawful permanent resident even though he was married to a citizen, and he was 

ineligible for cancellation of his removal.5

“If [appellant] had not admitted to violating probation and expunged his 

case, his conviction would not have rendered him ineligible for nearly all 

relief under immigration law. But for this conviction, he would have been 

eligible to adjust [his] status ... and thus would be able to prevent 

deportation. However, there is no waiver available for his conviction and, 

therefore, he is barred from ever obtaining lawful permanent resident status 

and if he is deported, he will never be permitted to immigrate to the United 

States.”

The People’s Opposition

On January 21, 2014, the district attorney filed opposition, and stated that since the 

grant of probation in this case in 2001, appellant was arrested in 2003 for driving under 

the influence and placed on probation for four years. In April 2004, he was arrested on a 

bench warrant in the instant case, admitted violating probation, his probation was 

reinstated and extended for two years, and he was sentenced to 90 days in jail. In August 

2012, he was arrested for driving under the influence, and again placed on probation for 

four years.

The People argued appellant was properly advised at the plea hearing as required 

by section 1016.5 that he could be deported as a result of his plea to felony possession of 

cocaine, and it was a controlled substance offense that made him subject to mandatory 

deportation under federal law, regardless of the probation violation.

The Court’s Denial of the Motion

On January 24, 2014, the superior court held a hearing on the motion. Appellant 

was present with counsel. The court accepted the prosecution’s opposition, it did not 

5 A subsequent declaration filed by Ms. Lewis stated appellant was married in 

2005, after his plea in this case. The existence of the visa petition filed by his wife is 

irrelevant to the question raised by his section 1473.7 motion – his subjective knowledge 

about the nature and the circumstances of his plea in 2001.
10.

hear any evidence, and it took the motion under consideration. On March 3, 2014, the 

court declined to exercise its discretion and denied defendant’s motion to dismiss.

MOTION TO VACATE (§ 1016.5)

On May 8, 2015, appellant filed a motion to vacate his 2001 convictions pursuant 

to section 1016.5. Appellant was represented by a new retained counsel, Daniel Prado. 

Appellant’s motion asserted the court failed to advise him of any possible immigration 

consequences prior to entering his plea, as required by section 1016.5.6

“[Appellant] was not advised by the court of potential immigration 

consequences at the time that he entered his plea of no contest. [Appellant] 

does not recall signing a change of plea form wherein immigration 

consequences were mentioned or explained to him. [Appellant] does not 

recall that his attorney ever mentioned the possibility that [he] could be 

deported or excluded from admission, or denied naturalization due to the 

guilty plea. As stated above, had the issue been raised, [appellant] would 

have informed his attorney that he currently had an approved visa petition 

that had been filed by his father, and that remaining eligible to apply for 

lawful permanent resident status was of utmost importance.

“Moreover, as there is no change of plea form in the court file that 

[appellant] was properly advised, he is presumed not to have received the 

required advisement.”7 (Italics and bold omitted.)

6

If the court fails to give the section 1016.5 advisement during a plea hearing, 

“and the defendant shows that conviction of the offense to which he or she pleaded guilty 

or nolo contendere may result in adverse immigration consequences, the court, on the 

defendant’s motion, is required to vacate the judgment and permit the defendant to

withdraw his or her plea and enter a plea of not guilty. [Citation.] Relief will be granted, 

however, only if the defendant establishes prejudice. [Citation.]” (People v. Martinez, 

supra, 57 Cal.4th at pp. 558–559, italics added.)

7 As noted above, the section 1385 motion to dismiss was filed in 2014 by 

appellant’s retained counsel, Mr. Pullara, and supported by the reporter’s transcript of 

appellant’s plea hearing. The motion acknowledged the court’s comments at the plea 

hearing about the possible immigration consequences, and argued the court failed to 

advise appellant that he was going to be subject to mandatory deportation as a result of 

the plea.

The section 1016.5 motion to vacate was filed in 2015 by a different retained 

attorney, Mr. Prado. The entirety of the motion and supporting declarations strongly 

imply that counsel either was unaware, or did not have, the reporter’s transcript of 
11.

Appellant asserted his trial attorney was prejudicially ineffective because he failed 

to advise appellant of the mandatory deportation consequences of his plea as required by

Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), counsel failed to negotiate a plea that 

would not result in his mandatory deportation, and he did not recall the court giving him 

the proper advisement of immigration consequences of his plea as required by section 

1016.5.

Appellant’s Supporting Declaration

Appellant filed a supporting declaration and stated that at the time of his plea, his 

attorney told him not to fight the case “because there was a chance that I could lose the 

case. I was told that I should pled [sic] no contest so that there would be no change of 

losing and getting more time. So I did as I was instructed and pled no contest.”

“I did not know and was not informed that my conviction would cause me to 

be deported. My attorney did not mention anything about immigration and 

what would happen to my status by pleading no contest. My attorney and I 

did not consider my immigration status and the effects of my convictions 

because my attorney and I never talked about it. If we had had a discussion 

about the immigration consequences of the conviction I would have 

informed him that I currently had an approved visa petition filed by my 

lawful permanent resident father that I planned to use to apply for lawful 

permanent resident status in the future. However, no such discussion was 

had.” (Italics added.)

Appellant declared he did not remember reviewing or signing a form that 

explained the immigration consequences of his plea, or the effect the plea would have on 

the petition that his father filed on his behalf. Appellant further declared he pleaded no 

contest because his attorney told him to do it. He would not have entered the plea if he 

had known of the “horrible immigration consequences” that resulted, requiring his 

deportation and preventing him from returning to the United States and becoming a

appellant’s plea hearing, because of the allegations that the court never gave any 

immigration advisements prior to the plea. As will be seen, however, the People and the 

court reviewed the plea transcript in addressing the merits of appellant’s motion.
12.

lawful permanent resident or citizen. “I thought that this conviction had no effect on my 

immigration status.” If he had known, he would not have entered the plea and “would 

have fought the case like I really wanted to but for my attorney’s advice that I not.”

Ms. Lewis’s Declaration

Ms. Lewis, appellant’s immigration attorney, again filed a sworn declaration and 

stated appellant had lived in the United States for over two decades and was currently in 

removal proceedings. She declared appellant was “the derivative beneficiary” of a visa 

petition filed on May 21, 1992, by his father, who was a lawful permanent resident at the 

time.

Ms. Lewis declared that any controlled substance violation, except for possession 

of 30 grams or less of marijuana for personal use, rendered a noncitizen deportable and 

inadmissible under federal immigration law. “Any individual applying to adjust his 

status to that of a lawful permanent resident must demonstrate that he is admissible to the 

United States.” It would have been advisable for appellant to plead to a different penal 

violation to avoid these harsh immigration consequences.

Ms. Lewis declared that if she had represented appellant, she would have advised 

him not to plead to possession of cocaine because it was a deportable offense with 

virtually no form of relief available to a noncitizen.

“This [was] particularly relevant and critical in [appellant’s] case, because 

even at the time that he entered the plea, he had an approved visa petition 

filed by his then-lawful permanent resident father, which had already been 

pending for almost 10 years and would have rendered him eligible to apply 

for lawful permanent resident status as soon as the priority date become 

current, so long as he was not inadmissible.”

Ms. Lewis declared that any reasonably competent attorney representing a 

noncitizen would have known that a controlled substance offense “would likely constitute 

a removable offender and that such a conviction would render a noncitizen ineligible for 

virtually all forms of relief that would otherwise have been available. At the time that 
13.

[appellant] plead [sic] he had an approved visa petition filed by his father, so it would 

have been foreseeable that he would [have] an avenue to apply for lawful permanent 

resident status in the near future, and thus, was critical that his lawyer explain the very 

tangible collateral consequences.”

The People’s Opposition

On May 14, 2015, the district attorney filed opposition, and agreed that appellant’s 

plea made him subject to deportation. The district attorney asserted the court advised 

appellant of the immigration consequences as required by section 1016.5 when he entered 

his plea, his attorney stated at the plea hearing that appellant had been so advised, and 

appellant pleaded to a controlled substance offense that made him deportable. The 

People further asserted the ineffective assistance standards set forth in Padilla in 2010 

were not retroactive and inapplicable to appellant’s plea hearing in 2001.

The Court’s Hearing

On May 20, 2015, the court held a hearing on appellant’s motion and heard 

arguments from the parties; no evidence was taken. Appellant was not present but 

represented by his attorney, Mr. Prado.

Appellant’s counsel argued there was no evidence appellant’s attorney at the plea 

hearing in 2001 knew about appellant’s immigration status, that he had a petition pending 

before immigration court filed by his father, or the impact of his plea on that pending 

petition. The prosecutor replied that the transcript of the plea hearing showed that 

appellant and his attorney discussed the immigration consequences of his plea.

The court denied the motion based on the plea transcript:

“[B]ased on the statement that the judge had made previously [at the plea 

hearing] describing the different ways that he could be picked up and taken 

into custody and then [appellant’s] response after Mr. Rendahl indicated 

that he had discussed the citizenship and the immigration ramifications with 

him that [appellant] then spoke up and indicated that he did, in fact, 

understood those ....”
14.

MOTION TO RECLASSIFY FELONY CONVICTION

In June and August 2015, appellant, represented by Mr. Prado, filed a petition to 

reclassify his felony conviction to a misdemeanor. In response, the People asserted 

appellant was ineligible for relief because he had a disqualifying felony conviction. The 

court denied the petition, presumably because of the alleged disqualifying conviction. 

The Court’s Decision to Grant the Renewed Motion

On June 7, 2016, appellant, again represented by Mr. Prado, filed another motion 

to reclassify his conviction for possession of cocaine from a felony to a misdemeanor 

pursuant to Proposition 47 and section 1170.18.

On July 7, 2016, the court held a hearing on the motion. Appellant was not 

present but represented by Mr. Prado. Appellant’s attorney stated his previous motion to 

reclassify had been denied because the prosecutor erroneously believed appellant had a 

disqualifying prior felony conviction. Appellant’s attorney stated the conviction was for 

someone with the same name but a different birthdate. The prosecutor did not oppose the 

motion and agreed that appellant did not suffer a disqualifying conviction.

The court granted appellant’s motion and reduced appellant’s conviction from 

felony to misdemeanor possession of cocaine, pursuant to section 1170.18 and 

Proposition 47.

MOTION FOR DISMISSAL/EXPUNGEMENT (§ 1203.4)

On June 9, 2017, appellant, again represented by Mr. Prado, filed a petition for 

dismissal and expungement of his misdemeanor convictions for possession of cocaine 

and driving with a blood-alcohol content of 0.08 percent or greater, pursuant to 

section 1203.4, because he had successfully completed probation.

On June 30, 2017, the People filed opposition and asserted that appellant was 

ineligible for relief because he had a disqualifying conviction for commission of a lewd 

act with a child under the age of 14 years (§ 288, subd. (a)) in 2008.
15.

On August 1, 2017, the court held a hearing on the motion. The prosecutor 

withdrew its prior opposition and stated that it no longer opposed the motion.8 The court 

granted appellant’s motion to expunge and dismiss both misdemeanor convictions.9

ENACTMENT OF SECTION 1473.7

In 2017, section 1473.7 became effective and provided that a person no longer 

imprisoned or restrained may file a motion to vacate a conviction for the following 

reason:

“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.” (Former § 1473.7, 

subd. (a)(1); Stats.2016, c. 739 (A.B. 813), § 1, eff. Jan. 1, 2017.)10

All section 1473.7 motions are entitled to a hearing. In ruling on the motion, the 

court shall specify the basis for its conclusion. It “shall grant the motion ... if the moving 

party establishes, by a preponderance of the evidence, the existence of any grounds for 

relief specified in subdivision (a).” (Former § 1473.7, subds. (d), (e).)

As relevant to the grounds stated in subdivision (a)(1), “... California courts 

uniformly assumed ... that moving parties who claim prejudicial error was caused by 

having received erroneous or inadequate information from counsel, must demonstrate 

that counsel’s performance fell below an objective standard of reasonableness under 

prevailing norms, as well as a reasonable probability of a different outcome if counsel 

had rendered effective assistance. Those courts either expressly or impliedly followed 

8 The record suggests the prosecution withdrew its initial opposition based on the 

determination that appellant did not have a disqualifying conviction.

9 After 2011, the dismissal and expungement for rehabilitation purposes under 

section 1203.4 of a conviction for simple possession, as an offense relating to a controlled 

substance, has no effect on the federal immigration consequences of that conviction. 

(Nunez-Reyes v. Holder (2011) 646 F.3d 684, 689–690, 692–694.)

10 The second statutory basis for a motion to vacate, contained in both the 2017 

and 2019 versions of the statute, is not raised in this case – that there was “[n]ewly 

discovered evidence of actual innocence....” (§ 1473.7, subd. (a)(2).)
16.

the guidelines enunciated” in Strickland v. Washington, supra, 466 U.S. 668. (Camacho, 

supra, 32 Cal.App.5th at p. 1005, italics added.) Thus, the moving party who brought a 

motion to vacate under the 2017 version of section 1473.7, subdivision (a) was required 

to prove a claim of prejudicial ineffective assistance of counsel. (Mejia, supra, 36 

Cal.App.5th at p. 861.)

APPELLANT’S SECTION 1473.7 MOTION TO VACATE

This appeal is based on appellant’s motion to vacate filed on January 23, 2018, by 

Judyanne Rogado, a senior deputy public defender. Appellant’s motion asserted his 2001 

plea to possession of cocaine should be vacated, based on the court’s alleged violation of 

section 1016.5 at the plea hearing, and the 2017 version of section 1473.7 and ineffective 

assistance of counsel under the Sixth and Fourteenth Amendments.

Appellant’s motion restated the arguments raised in his prior motions for relief –

he was placed in removal proceedings and faced deportation because he pleaded to a 

controlled substance offense in 2001, he subsequently consulted an immigration attorney 

and learned about the specific immigration consequences resulting from his plea to felony 

possession of cocaine, and that it was a controlled substance offense under federal 

immigration law that subjected appellant to mandatory removal, and he was inadmissible 

to return and ineligible to obtain lawful permanent resident status.

Appellant argued his section 1473.7 motion should be granted and his attorney at 

the plea hearing in 2001 was prejudicially ineffective because he failed to advise him that 

his conviction for felony possession of cocaine would result in his mandatory deportation 

and make him ineligible for the approved visa petition submitted on his behalf by his 

father. Appellant argued that under Padilla, an attorney’s general advisement about 

possible immigration consequences was insufficient to satisfy the duty to fully advise 

about mandatory removal.

“[Appellant] did not get advisement by the Court, by his defense counsel or 

by the court interpreter of the specific immigration consequences to his 
17.

particular plea. In fact, had the issue been brought to his attention, 

[appellant] would have informed his attorney that the aforementioned visa 

petition had been filed on his behalf and he therefore had a viable means to 

apply for lawful permanent resident status. He does not recall signing a 

plea form, which discussed immigration effects and consequences to his 

plea of no contest. [Appellant] felt pressured by this counsel to enter a 

guilty plea because he was faced with a possible lengthy jail term. 

[Appellant] was informed that if he did not plead no contest the 

consequences would be significantly worse.”

Appellant asserts his attorney’s error was prejudicial because it was reasonably 

probable that he would not have pleaded to the controlled substance offense, and instead 

would have risked going to trial, if he knew that he would become ineligible for 

immigration relief.11

11 As we will discuss below, we need not address appellant’s renewed claims of 

ineffective assistance in this appeal. Even if we did, however, appellant relies on a series 

of cases that are not applicable to the circumstances of his case. First, Padilla, supra, 559 

U.S. at p. 368 held the Sixth Amendment’s guarantee of effective counsel requires 

attorneys to advise clients if their guilty plea would make them “subject to automatic 

deportation,” and an attorney is ineffective in failing to so advise. (Id. at pp. 357, 364, 

374.) As noted by the district attorney, the rule announced in Padilla does not apply 

retroactively to convictions that were final at the time Padilla was decided in 2010. 

(Chaidez v. United States (2013) 568 U.S. 342, 344, 357–358; Camacho, supra, 32 

Cal.App.5th at pp. 1004–1005 & fn. 4.) As a result, Padilla’s ineffective assistance 

standard was not applicable when appellant entered his plea in 2001.

In subsequent briefing, appellant acknowledged Padilla was not retroactive but 

instead relied on several state cases to argue counsel was required to affirmatively advise 

him about the mandatory immigration consequences at the time of his plea in 2001, even 

before Padilla was decided. These cases are also inapplicable to the circumstances of his 

plea. In re Resendiz (2001) 25 Cal.4th 230 held that “affirmative misadvice regarding 

immigration consequences may, depending on the circumstances of the particular case, 

constitute ineffective assistance of counsel” (id. at pp. 235, 240), but expressly declined 

to address “whether a mere failure to advise could also constitute ineffective assistance” 

or whether defense counsel was obligated to research immigration consequences but 

doubted the Sixth Amendment imposed “a blanket obligation on defense counsel, when 

advising pleading defendants, to investigate immigration consequences or research 

immigration law.” (Id. at pp. 240, 249–250.) There is no evidence that appellant 

received “affirmative misadvice” from his attorney before he entered his plea. (Cf. 

People v. Espinoza (2018) 27 Cal.App.5th 908, 911–918, [defendant entered plea in 

2012, when Padilla was effective, and counsel’s warning of possible immigration 
18.

Appellant further argued that in addition to his attorney failing to research or 

advise him about the specific immigration consequences, the court failed to comply with 

section 1016.5 and did not properly advise him of the severe immigration consequences 

prior to entering his plea to a controlled substance offense.

Appellant’s Declaration

Appellant filed a sworn declaration that he had lived in the United States since 

1996, he married a citizen in 2005, they had two children who were also citizens, and his 

“whole life is here.” His father had become a citizen and his mother was a lawful 

permanent resident.

Appellant’s declaration stated Mr. Rendahl, his attorney at the plea hearing told 

him not to fight the case because there was a chance that he could lose, and he did as he 

was instructed. Appellant declared that he did not remember seeing, reviewing, or 

signing a form that explained the immigration consequences of his plea.12

“I did not know and was not informed that my conviction would cause me 

to be deportable and would render me ineligible to apply for a lawful 

permanent resident status. I do not recall my attorney telling me that there 

would be any immigration impact due to my conviction. If we had had a 

discussion about the specific immigration consequences of the conviction, I 

would have informed him that I currently had an approved visa petition 

filed by my lawful permanent resident father that I planned to use to apply 

consequences was constitutionally inadequate since he was subject to mandatory 

removal].)

In People v. Soriano (1987) 194 Cal.App.3d 1470, 1481–1482, and People v. 

Ogunmowo (2018) 23 Cal.App.5th 67, 76–77, the defense attorneys were found 

prejudicially ineffective for giving erroneous information in response to their clients’ 

repeated and specific questions about the impact of their pleas on their immigration 

status. In this case, there is no evidence appellant asked any of his attorneys, prior to the 

plea, about the immigration consequences. (Cf. People v. Barocio (1989) 216 

Cal.App.3d 99, 107–108 [trial court required to give section 1016.5 at plea hearing, but 

defense attorney not required to give section 1016.5 advisement to client because 

immigration concerns were “collateral consequence[s]” of the plea].)

12 As previously noted, the instant record does not contain a change-of-plea form 

or any written document stating the section 1016.5 immigration advisement.
19.

for lawful permanent resident status in the future. I understand from my 

current criminal defense attorney that my prior attorney, Mr. Rendahl 

discussed immigration issues generally with the judge in 2001 and 

Mr. Rendahl said he discussed this with me. While I do not have a 

recollection of any discussions with Mr. Rendahl regarding immigration 

consequences of my plea, if he did tell me anything, it must have been 

something very generic. I am sure he did not tell me the specific 

consequences of the plea. If he had explained the plea would make me 

ineligible for lawful permanent resident status, which I planned to pursue 

through the petition my father filed, I would have not taken the plea.” 

(Italics added.)

Appellant declared he had no memory of the judge discussing immigration 

consequences at the time of his plea hearing. His current attorney showed him the 

transcript from the plea hearing, and appellant assumed he “didn’t want to contradict my 

attorney in court about the fact that he didn’t discuss the immigration consequences or 

that my attorney would have told me if there had been some specific immigration 

consequence that was applicable to my plea. Had I understood that the plea would make 

me ineligible to apply for lawful permanent resident status, I would certainly have asked 

more questions and explained my father had petitioned for me. I would not have taken 

the plea if I understood it made me ineligible for lawful permanent resident status.”

Appellant’s motion was also supported by a declaration from his employment 

supervisor, that appellant had worked for the same construction company for five years, 

and he was hardworking, reliable, and responsible; and declarations from other family 

members, that he was the main source of their income. He had attended classes on 

drug/alcohol problems, and his counselor declared he was an “exceptional” group 

member.

Ms. Lewis’s Declaration

Ms. Lewis, appellant’s immigration attorney, filed another supporting declaration 

and stated appellant was now 41 years old. She again declared that at the time of his 

plea, appellant was “the derivative beneficiary” of a visa petition filed on May 21, 1992, 
20.

by his father, who was a lawful permanent resident of the United States at that time, and 

now was a citizen.

“[A]t the time he entered the plea, [appellant] had an approved visa petition 

filed by his then-lawful permanent resident father, which had already been 

pending for almost 10 years and would have rendered him eligible for 

lawful permanent resident status as soon as the priority date become 

current, so long as he was not inadmissible.” (Italics added.)

According to her declaration, a reasonably competent attorney would have known 

that a controlled substance offense was a removable offense and left him ineligible “for 

virtually all forms of relief that would otherwise have been available.”

“At the time that [appellant] ple[d], he had an approved visa petition 

filed by his father, so it would have been foreseeable that he would an 

avenue to apply for lawful permanent resident status in the near future, and 

thus, was critical that his lawyer explain the very tangible collateral 

consequences.”

Ms. Lewis declared appellant’s attorney should have explored alternate pleas 

without the same immigration consequences, such as being accessory to simple 

possession, or hit and run.

“[Appellant] is currently in removal proceedings before the San Francisco 

Immigration Court, and is facing a very real possibility of a removal order 

from the United States. Because of this conviction, the Immigration Judge 

found appellant inadmissible [under federal immigration law] for a 

controlled substance offense violation, and ineligible for adjustment of 

status to that of a lawful permanent resident (obtain his ‘green card’) based 

on his marriage to a U.S. citizen ..., relief for which he otherwise is 

eligible. In addition, because of his conviction, he is not eligible for 

cancellation of removal ..., relief for which he would be otherwise eligible. 

[¶] The actual immigration consequences of [appellant’s] conviction are 

that he is unable to seek almost any relief from removal in immigration 

court.”

The People’s Opposition

On February 13, 2018, the district attorney filed opposition and, as in prior 

pleadings, agreed that appellant’s plea made him subject to deportation. The district 
21.

attorney argued the court gave appellant the appropriate immigration advisement as 

required by section 1016.5 at the time of the plea hearing, possession of cocaine is a 

deportable offense under federal immigration law, and he knowingly accepted the 

consequences of his conviction when he entered his plea.

As for his ineffective assistance claim, the People stated the standard set forth in 

Padilla in 2010 was not retroactive to pleas and convictions entered prior to the decision 

in that case, and appellant failed to provide any evidence of ineffective assistance because 

he “was advised by the court and by Mr. Rendahl [his attorney at the plea hearing] that 

his pleas may result in deportation consequences.”

13

 (Italics added.)

The Court’s Denial of the Motion

On March 6, 2018, the court held a hearing on appellant’s section 1473.7 motion 

to vacate. Appellant was present with his attorney, Ms. Rogado, and assisted by an 

interpreter.

Appellant’s counsel argued the same equities which led the court to grant the 

section 1203.4 motion to expunge his convictions should also support the section 1473.7 

motion to vacate. Appellant’s counsel acknowledged there was a discussion about 

immigration consequences at the plea hearing, but argued the court only addressed the 

possibility of deportation and did not state that appellant was pleading to an offense that 

was going to result in his mandatory deportation, and appellant’s attorney failed to so 

advise him prior to entering the plea.

The court denied appellant’s motion without prejudice and found the plea 

transcript showed that appellant was advised about the immigration consequences, and 

13 The People’s opposition again claimed that appellant was convicted of child 

molestation in 2008 and sentenced to prison. In reply, Ms. Lewis filed a new declaration 

and stated she reviewed appellant’s criminal records and documents from the FBI, he was 

never convicted of such an offense or ordered to register as a sex offender, and federal 

immigration authorities had not alleged such a conviction in the course of the pending 

removal proceedings. The People did not contest this declaration.
22.

his attorney at that hearing acknowledged they had discussed the subject. “If you have a 

declaration from Mr. Rendell [sic] that he misunderstood the law or that he failed to 

advise his client of the consequences ... [t]hat would put it in a different position. But 

based on the evidence that’s been presented, your motion is denied.”

ADDITIONAL PROCEEDINGS ON THE SECTION 1473.7 MOTION

On May 15, 2018, appellant filed a declaration from David Rendahl, the attorney 

who represented him at the plea hearing, and requested the court reconsider its denial of 

his section 1473.7 motion.

Mr. Rendahl’s Declaration

Mr. Rendahl declared he represented appellant as a deputy public defender at the 

plea hearing in 2001, but he did not have any independent recollection of his case. His 

representation occurred before the United States Supreme Court’s ruling in Padilla in 

2010, about the standards of representation.

“In 2001, the usual advisement I gave to clients would be to advise them 

that their plea may have immigration consequences and this case can cause 

you to be deported, however it is unknown if you will actually be deported.

“At the time, it was my practice to provide clients with the 

immigration consequences of their plea in relation to their status that they 

informed me of, i.e., totally undocumented up to a resident alien with green 

card and in the process of seeking to legally stay in this country and seek to 

be a citizen.

“Since I have no independent recollection of my specific 

conversations with [appellant] or the information he provided me at the 

time, I don’t know the extent of the actual advisement I gave [appellant] of 

the immigration consequences of his plea.” (Italics added.)

The Court’s Second Hearing on the Section 1473.7 Motion

On July 2, 2018, the court held a hearing to reconsider appellant’s motion based 

on Mr. Rendahl’s declaration. Appellant was present with his attorney, Ms. Rogado, and 

assisted by an interpreter. No witnesses appeared, and the court heard the parties’ 

arguments on appellant’s renewed ineffective assistance claim.
23.

Appellant’s counsel argued that Mr. Rendahl’s declaration showed that in 2001, 

“he would tell clients it’s unknown if they will actually be deported.” Appellant’s 

counsel argued that it was a certainty that a plea to a controlled substance offense in 2001 

would result in his mandatory removal, deportation, and exclusion. Counsel stated that if 

the court granted the motion to vacate, appellant was prepared to enter a plea to 

“something other than what he had originally pled to.”

The prosecutor replied that the rest of Mr. Rendahl’s declaration showed it was 

also his practice to tell clients about the immigration consequences of their plea “in 

relation to what they told him.” (Italics added.) The prosecutor argued that the entirety 

of Mr. Rendahl’s declaration, together with the statements from Mr. Rendahl and 

appellant at the plea hearing that they had discussed the immigration consequences of the 

plea, showed appellant was fully advised before he entered his plea.

Appellant’s counsel replied that it was unreasonable to expect appellant would 

have entered the plea if his attorney told him that he would be deported if he pleaded to 

the charge, which would have been the proper advice since he was pleading to a 

controlled substance offense under federal law. Counsel further argued it was not clear 

whether Mr. Rendahl knew about appellant’s immigration status at the time of the 

hearing, or the consequences of admitting a controlled substance offense. “It would be 

different if the transcript read, ‘[appellant] informed me of his status, which was XYZ. I 

have informed him, therefore, that if he pleads to this charge, he will therefore be 

deported.’ [W]ith that specificity, you can rely more sufficiently on the transcript....” 

The court took the matter under submission.

The Court’s Denial of the Motion

On July 3, 2018, the court filed a written order and again denied appellant’s 

section 1473.7 motion to vacate based on his claim of ineffective assistance. The court 

set forth the lengthy history of the case and noted appellant’s prior motions for relief 
24.

were denied, except the motions to reclassify and expunge. The court cited the transcript 

of the plea hearing:

“The record reflects that the Court asked the Public Defender and 

[appellant] if [appellant] had been advised of the immigration 

consequences. At that time, Mr. Rendahl represented that he advised him 

of the immigration consequences. [Appellant] also responded to the Court 

that he was aware of the immigration consequences.”

The court found Mr. Rendahl’s recent declaration “indicates that he does not recall 

this specific case, but that his usual practice was to advise defendants that their plea can 

have immigration consequences, but that it was unknown if they actually would be 

deported.”

The court rejected the credibility of appellant’s declaration filed in support of his 

section 1473.7 motion, and found it was inconsistent with the declaration he filed in 

2015, in support of his section 1016.5 motion to dismiss:

“[Appellant] filed a declaration dated April 30, 2015, stating[,] ‘My 

attorney did not mention anything about immigration and what would 

happen to my status by pleading no contest. My attorney and I did not 

consider my immigration status and the effects of my convictions because 

my attorney and I never talked about it.’ Based on the transcripts and 

declaration of Mr. Rendahl, submitted in conjunction with the current 

motion, the court finds that the [appellant] was less than candid in that 

[2015] declaration. [¶] Although the Court is sympathetic to the 

[appellant’s] situation, the Court cannot find that the law or evidence 

presented supports the [appellant’s] request.” (Italics added.)

Thereafter, appellant filed the instant appeal from the trial court’s denial of his 

section 1473.7 motion for relief.14

14 Appellant initially filed a timely notice of misdemeanor appeal with the 

appellate division of superior court, but it was dismissed for lack of jurisdiction because 

appellant’s original conviction was for a felony.

On February 4, 2019, appellant attempted to file a felony notice of appeal with the 

Tulare County Superior Court, but the clerk declined to file the notice as untimely. This 

court granted appellant’s petition for writ of mandate for leave to file a belated notice of 

appeal of this matter under the doctrine of constructive filing.
25.

THE 2019 AMENDMENTS TO SECTION 1473.7

In 2018, while this appeal was pending, the Legislature amended section 1473.7,

effective on January 1, 2019. (Mejia, supra, 36 Cal.App.5th at p. 869; Stats. 2018, 

c. 825, § 2 (A.B. 2867).) “The California Legislature knew defendants ... had been 

misadvised on immigration consequences, yet they were losing section 1473.7 motions to 

vacate convictions in 2017 and 2018. The Legislature passed Assembly Bill No. 2867 

(2017–2018 Reg. Sess.) to ‘provide clarification to the courts regarding Section 1473.7’ 

to ‘ensure uniformity throughout the state and efficiency in the statute’s implementation.’ 

[Citation.] It intended to change the law to give defendants a new right to prevail using 

an easier new standard to retroactively challenge invalid prior convictions. [Citations.]” 

(Ruiz, supra, 49 Cal.App.5th at p. 1067.)

Subdivision (a)(1) of section 1473.7 was amended in 2019 to clarify that a motion 

to vacate is no longer subject to an ineffective assistance analysis:

“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. A finding of legal

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

counsel.” (§ 1473.7, subd. (a)(1), italics added.)15

The 2019 legislation again stated that the court shall grant the motion if the 

moving party establishes, by a preponderance of the evidence, the existence of any 

ground for relief specified in subdivision (a). (§ 1473.7, subd. (e)(1).) The Legislature 

also clarified exactly what the court was required to find for a motion brought under 

subdivision (a)(1):

15 The 2019 amendments restated the second basis for a motion to vacate, based 

on newly discovered evidence of actual innocence. (§ 1437.7, subd. (a)(2).) Section 

1473.7, subdivision (a) was again amended, effective January 1, 2021, to include a third 

statutory basis for a motion to vacate that is not at issue in this case – that a conviction or 

sentence was “sought, obtained, or imposed on the basis of race, ethnicity, or national 

origin ....” (§ 1473.7, subd. (a)–(e); Stats. 2020, c. 317, § 5.)
26.

“When ruling on a motion under paragraph (1) of subdivision (a), 

the only finding that the court is required to make is whether the conviction 

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. (e)(4), italics added.)

As a result of the 2019 legislation, the amended version of section 1473.7, 

subdivision (a)(1) “eliminated the Strickland requirements. [Citation.] Now the trial 

court may set aside a conviction based on counsel’s immigration advisement errors

without a ‘finding of ineffective assistance of counsel.’ [Citation.]” (Ruiz, supra, 49 

Cal.App.5th at p. 1067; Vivar, supra, 11 Cal.5th at p. 523.) The 2019 version of section 

1473.7 has been held to apply to appellate review of motions to vacate that were pending 

and not yet final when the amendments became effective. (Camacho, supra, 32 

Cal.App.5th at p. 1009; Mejia, supra, 36 Cal.App.5th at pp. 865–866, 871.)

DISCUSSION

I. Section 1016.5

In 2015, appellant filed a motion to vacate based on section 1016.5, and claimed 

he never received any immigration advisements at the plea hearing as required by the 

statute; this motion was denied. Appellant’s instant motion for relief was based on both 

section 1473.7 and the court’s alleged violation of section 1016.5 at the plea hearing.

In this appeal, appellant asserts his current section 1473.7 motion should have 

been granted based on the court’s alleged violation of section 1016.5 at the plea hearing. 

In doing so, appellant raises the same arguments as in his motion filed in 2015: that the 

trial court violated section 1016.5 at the plea hearing because it failed to advise him that 

he was pleading to an offense that would make him inadmissible, excludable, and 

ineligible for adjustment of his status based on the pending visa petition already filed by 

his father.

As noted by the People, appellant raised these same issues in his motion for relief 

filed under section 1016.5 in 2015. The superior court denied his motion in 2015 and he 
27.

did not file an appeal from that order. An appeal may be brought from the denial of a 

section 1016.5 motion (People v. Totari (2002) 28 Cal.4th 876, 879), and appellant’s 

failure to do so prevents him from raising the identical section 1016.5 issues again as part 

of his appeal from the denial of his section 1473.7 motion.

Even if we were to address this issue on the merits, the record refutes appellant’s 

claim on this ground. Section 1016.5 “requires that before accepting a plea of guilty or 

nolo contendere to any criminal offense, the trial court must advise the defendant that if 

he or she is not a United States citizen, conviction of the offense may result in 

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

pursuant to the laws of the United States.” (People v. Martinez, supra, 57 Cal.4th at 

p. 558, italics added, fn. omitted.)

If the court fails to give the section 1016.5 advisement at a plea hearing, “and the 

defendant shows that conviction of the offense to which he or she pleaded guilty or nolo 

contendere may result in adverse immigration consequences, the court, on the 

defendant’s motion, is required to vacate the judgment and permit the defendant to

withdraw his or her plea and enter a plea of not guilty. [Citation.] Relief will be granted, 

however, only if the defendant establishes prejudice. [Citation.] [P]rejudice is shown if 

the defendant establishes it was reasonably probable he or she would not have pleaded 

guilty if properly advised. [Citation.]” (People v. Martinez, supra, 57 Cal.4th at p. 558–

559, italics added.)

At the plea hearing in 2001, the superior court complied with section 1016.5 and 

advised appellant that “if” he was not a citizen, the Immigration and Naturalization 

Service “can snatch him up ... and deport him for this type of offense,” and “if

Immigration decided to, they could deport him, refuse him reentry or refuse him the right 

to become an American citizen....” (Italics added.) Section 1016.5 only requires the 

court to advise the party about the possibility of deportation, and the advisement at 

appellant’s plea hearing complied with section 1016.5. (Vivar, supra, 11 Cal.5th at 
28.

p. 533.) As we will address below, however, the court’s compliance with the section 

1016.5 advisement about possible immigration consequences may not bar relief under 

section 1473.7, under certain circumstances, if the defendant pleaded to an offense that 

would result in mandatory deportation. (Vivar, supra, 11 Cal.5th at pp. 533–534.)

Appellant further argues that at the plea hearing, the court’s alleged failure to 

comply with section 1016.5 made his plea involuntary and unconstitutional in violation 

of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The 

purpose of Boykin/Tahl, however, is to ensure that before a criminal defendant enters a 

plea, the court must inform him of three constitutional rights – the privilege against 

compulsory self-incrimination, the right to trial by jury, and the right to confront one’s 

accusers – and obtain the defendant’s personal waiver of each right. (People v.

Cross (2015) 61 Cal.4th 164, 170.) Boykin/Tahl does not support appellant’s claim that 

his waiver of constitutional rights was not knowing, intelligent, and voluntary based on 

the court’s alleged violation of section 1016.5.

II. Appellant’s Section 1473.7 Motion for Relief

We turn to the merits of appellant’s section 1473.7 motion based on the 2019 

amendments to the statute, because the amendments represented “a clarification of 

existing law and therefore appl[y] to nonfinal judgments [denying relief under section 

1473.7 motions], including this appeal,” and the parties have not disputed this point.

(Mejia, supra, 36 Cal.App.5th at p. 865; Camacho, supra, 32 Cal.App.5th at pp. 1006–

1008.)

“Unlike the Padilla rule, section 1473.7 applies retroactively, allowing challenges 

to pleas entered into before it was adopted. [Citations.]” (People v. Rodriguez, supra, 68 

Cal.App.5th at pp. 309–310.) The 2019 version of section 1473.7, subdivision (a)(1) 

states the basis to bring a motion to vacate that is now applicable to this case:

“The conviction or sentence is legally invalid due to prejudicial error 

damaging the moving party’s ability to meaningfully understand, defend 
29.

against, or 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.” (§ 1473.7, subds. (a)(1), (e)(4).)

“[T]he 2018 amendment of section 1473.7 ‘made it easier to retroactively 

challenge convictions’ where the defendant was not properly advised of immigration 

consequences by removing judicially created ‘barriers’ to relief. [Citation.] Since the 

2018 amendment, courts have adopted a more expansive interpretation of section 1473.7, 

subdivision (a)(1).” (People v. Rodriguez, supra, 68 Cal.App.5th at p. 311.) “Now the 

trial court may set aside a conviction based on counsel’s immigration advisement errors 

without a ‘finding of ineffective assistance of counsel.’ [Citation.]”

16

A. Camacho and Mejia

We begin with two cases that first interpreted the 2019 version of section 1473.7. 

In Camacho, supra, 36 Cal.App.5th 859, the court held that after the 2019 amendment, a 

moving party need only show that there were “one or more” errors that “were prejudicial 

and damaged [his] ‘ability to meaningfully understand, defend against, or knowingly 

accept the actual or potential adverse immigration consequences of [his or her] plea ....’ 

[Citation.]” (Id. at p. 1009.) Camacho held the moving party’s declaration and hearing 

testimony in that case demonstrated by a preponderance of the evidence his “own error in 

believing that a negotiated plea calling for no time in custody would avoid making him 

deportable, and in not knowing that his plea would subject him to mandatory deportation 

and permanent exclusion from the United States.” (Ibid.) Camacho further held that 

based on defendant’s strong ties to the country from his childhood, family, and 

16 As previously noted, appellant asserts his section 1473.7 motion should have 

been granted based on his original claim of ineffective assistance. We need not address 

the ineffective assistance claim since our review is based on the 2019 amendments to 

section 1473.7. (Camacho, supra, 32 Cal.App.5th at p. 1009; Mejia, supra, 36 

Cal.App.5th at pp. 865–866, 871.) In addition, as previously explained, appellant’s 

ineffective assistance arguments are based on Padilla and other cases that are 

inapplicable to his plea.
30.

employment, he demonstrated prejudice by a preponderance of the evidence, because “he 

would never have entered the plea if he had known that it would render him deportable,” 

and the errors “damaged his ability to meaningfully understand, defend against, or 

knowingly accept the adverse immigration consequences of the plea,” and the trial court 

should have granted the motion to vacate. (Id. at pp. 1011–1012.)

Mejia held that “to establish a ‘prejudicial error’ under [the 2019 version of] 

section 1473.7, a person need only show by a preponderance of the evidence: (1) he did 

not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse 

immigration consequences of the plea; and (2) had he understood the consequences, it is 

reasonably probable he would have instead attempted to ‘defend against’ the charges.” 

(Mejia, supra, 36 Cal.App.5th at p. 862.)

Mejia agreed with Camacho’s analysis of finding error: “[T]he focus of the 

inquiry in a section 1473.7 motion is on the ‘defendant’s own error in ... not knowing 

that his plea would subject him to mandatory deportation and permanent exclusion from 

the United States.’ [Citation.]” (Mejia, supra, 36 Cal.App.5th at p. 871.)

Mejia further set forth the standard for prejudice:

“[A] ‘prejudicial error’ occurs under section 1473.7 when there is a 

reasonable probability that the person would not have pleaded guilty – and 

would have risked going to trial (even if only to figuratively throw a ‘Hail 

Mary’) – had the person known that the guilty plea would result in 

mandatory and dire immigration consequences. [Citation.]

“ ‘Where a defendant has no plausible chance of an acquittal at trial, 

it is highly likely that he will accept a plea .... [¶] But common sense ... 

recognizes that there is more to consider than simply the likelihood of 

success at trial. The decision whether to plead guilty also involves 

assessing the respective consequences of a conviction after trial and by 

plea. [Citation.] When those consequences are, from the defendant’s 

perspective, similarly dire, even the smallest chance of success at trial may 

look attractive.’ [Citation.] In 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 
31.

defendant’s expressed preferences.’ [Citation.]” (Mejia, supra, 36 

Cal.App.5th at pp. 871–872.)

Mejia held the defendant’s undisputed hearing testimony in that case established 

his “own ‘error’ ” within the meaning of section 1473.7 because “he did not 

‘meaningfully understand’ or ‘knowingly accept’ the mandatory deportation 

consequences when he pleaded guilty in 1994. [Citation.] [The defendant] said that he 

would have never pleaded guilty had he known and understood ‘that this would harm me 

in the future.’ ” (Mejia, supra, 36 Cal.App.5th at p. 872.)

As for prejudice, Mejia found “contemporaneous evidence in the record to 

substantiate [his] claim that he would not have pleaded guilty had he known about the 

mandatory and dire immigration ramifications,” because he had lived in the country for a 

substantial period of time with his family, and there were also “lingering questions” about 

the strength of the evidence to support the charged offenses. (Mejia, supra, 36 

Cal.App.5th at p. 872.) Mejia also found another “contemporaneous substantiation of 

prejudice” because the defendant entered “a ‘straight up’ plea directly to the court rather 

than a negotiated disposition,” and he was placed on probation. It was not likely that he 

would have been sentenced to the maximum prison term if he had been convicted after a 

trial because he had no criminal record, and it was an unsophisticated crime. (Id. at 

pp. 872–873.)

B. Vivar

In Vivar, supra, 11 Cal.5th 510, the California Supreme Court addressed the 2019 

version of section 1473.7, approvingly cited Camacho and Mejia, and clarified the 

applicable standard of review. (Vivar, supra, 11 Cal.5th at pp. 529, 530–531.)

Vivar explained that the Legislature originally enacted section 1473.7 so that 

defendants “who were unaware of the immigration consequences posed by a plea entered 

many years earlier[]” could subsequently move to vacate their convictions and obtain 

relief from imminent immigration orders. (Vivar, supra, 11 Cal.5th at p. 523.)
32.

“Section 1473.7 offers a remedy in the form of permission to withdraw a 

plea. But it’s a remedy available only to some: those who have completed 

their sentences and who suffered a prejudicial error that damaged their 

ability to meaningfully understand, defend against, or knowingly accept the 

plea’s actual or potential immigration consequences. [Citations.] A 

moving party demonstrates prejudice by showing that in the absence of the 

error regarding immigration consequences, it’s reasonably probable the 

moving party would not have entered the plea. Courts should subject the 

trial court’s prejudice finding under this statute to independent review, a 

standard that heavily weighs trial court factual findings based on the court’s 

own observations, but not trial court findings arising only from a cold 

record.” (Id. at pp. 533–534.)

The moving party has the burden of proof by a preponderance of the evidence. 

(Vivar, supra, 11 Cal.5th at p. 517.) Vivar explained that after the 2019 amendments, 

“[a] finding of prejudicial error under this provision may, but need not, be based on 

ineffective assistance of counsel. [Citation.]” (Id. at p. 523, italics added.)

“What someone seeking to withdraw a plea under section 1473.7 must 

show is more than merely an error ‘damaging the moving party’s ability to 

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

potential adverse immigration consequences’ of the plea. [Citation.] The 

error must also be ‘prejudicial.’ [Citation.]” (Id. at p. 528.)

Vivar further explained that “showing 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. When courts assess whether a petitioner has shown that 

reasonable probability, they consider the totality of the circumstances. [Citation.] 

Factors particularly relevant to this inquiry include the defendant’s ties to the United 

States, the importance the defendant placed on avoiding deportation, the defendant’s 

priorities in seeking a plea bargain, and whether the defendant had reason to believe an

immigration-neutral negotiated disposition was possible. [Citations.]” (Vivar, supra, 

11 Cal.5th at pp. 529–530, italics added.)

Vivar held that on appeal, the independent standard of review applies and “ ‘an 

appellate court exercises its independent judgment to determine whether the facts satisfy 
33.

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.]” (Vivar, supra, 11 Cal.5th at p. 527, italics added in original.) The motion is 

reviewed independently because of “the history of section 1473.7, the interests at stake in

a section 1473.7 motion, the type of evidence on which a section 1473.7 ruling is likely

to be based, and the relative competence of trial courts and appellate courts to assess that

evidence. [Citation.]” (Ibid.)

Vivar drew a distinction about how certain factual findings are reviewed under this 

independent standard:

“In section 1473.7 proceedings, appellate courts should ... give particular 

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

observations of witnesses. [Citation.] 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.” (Vivar, supra, 11 Cal.5th at 

pp. 527–528, italics added, fn. omitted.)

Vivar applied these standards to review the moving party’s motion in that case, 

and his declaration that he would not have entered his plea if he understood that it would 

result in his mandatory deportation. Vivar held the 2019 version of the statute still 

required the defendant “corroborate such assertions with ‘ “objective evidence.” ’

[Citation.] That’s what [the defendant] has done here.” (Vivar, supra, 11 Cal.5th at 

p. 530.)

“Time and again, the record readily conveys how [the defendant] would 

have considered his immigration status ‘the most important part’ of his 

decision to plead. [Citation.] [The defendant] 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 
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whom resided in California. By the time he was deported, his wife was 

undergoing radiation treatment for a thyroid condition. By contrast, [the 

defendant] had virtually no ties to Mexico, spoke Spanish ‘like an 

American,’ and found it ‘difficult to function in Mexican society because 

people treat [him] like an outsider.’ Trial counsel’s recollection and 

contemporaneous notes reflect that [the defendant] was indeed concerned 

about the ‘consequences’ of his plea. All of these constitute 

contemporaneous objective facts that corroborate [the defendant’s] concern 

about the immigration consequences of his plea options. [Citation.] [¶] ... 

[¶] ... In our view, these objective and contemporaneous facts corroborate, 

in a most convincing way, the statement in [the defendant’s] declaration 

that he ‘would never have plead[ed g]uilty’ if his attorney had informed 

him of the plea’s consequences. [Citations.]” (Id. at pp. 530–531.)

Vivar acknowledged the trial court rejected the credibility of the defendant’s 

declaration but held the appellate court should not have deferred to the trial court’s 

factual findings because those findings were “based entirely on a cold record,” and again 

emphasized that “[a]n appellate court should instead review such findings independently 

where, as here, the factual record consists entirely of written documents.” (Vivar, supra, 

11 Cal.5th at p. 533.)

Vivar further held the section 1016.5 advisements in the defendant’s plea form, 

while consistent with the statutory requirements, “did not mitigate the prejudice from

counsel’s deficient immigration advice. What the plea form stated was that deportation 

was a possibility. [Citation.] The problem for [the defendant], though, was that 

deportation in these circumstances was mandatory – and when he accepted the plea deal, 

he remained unaware of that crucial fact. [Citation.] In light of [the defendant’s] 

extensive ties to the United States, the generic advisements in the plea form do not 

undermine our conclusion that he was prejudiced by counsel’s failure to inform him that 

his plea would result in his deportation. [Citations.]” (Vivar, supra, 11 Cal.5th at 

p. 533.)

C. Evidence of Appellant’s “Own Error”

In reviewing the merits of appellant’s section 1473.7 motion, the first question is 

whether appellant satisfied his burden of establishing by a preponderance of the evidence 
35.

his own subjective error “ ‘damaging the moving party’s ability to meaningfully

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

immigration consequences’ of the plea. [Citation.]” (Vivar, supra, 11 Cal.5th at pp. 528, 

530; § 1473.7, subds. (e)(1), (e)(4); Mejia, supra, 36 Cal.App.5th at p. 871; People v. 

Rodriguez, supra, 68 Cal.App.5th at p. 321.) The focus “is the mindset of the defendant 

and what he or she understood – or didn’t understand – at the time the plea was 

taken, ...” (Mejia, supra, 36 Cal.App.5th at p. 866.)

As directed by Vivar, we conduct an independent review of the motion and are not 

required to defer to the trial court’s findings or rulings, since the entirety of the evidence 

for all of appellant’s postconviction motions was documentary in nature, and the parties 

never introduced any testimony at the hearings on those motions. (Vivar, supra, 

11 Cal.5th at pp. 524–525, 528; People v. Rodriguez, supra, 68 Cal.App.5th at p. 312.)

While a section 1473.7 motion will not be granted “merely because the [moving 

party] claims to have misunderstood the consequences of a plea,” appellant has met this 

burden because he consistently stated in his postconvictions declarations that he did not 

know or understand that by pleading no contest to the charged felony of possession of 

cocaine, he was going to be convicted of a controlled substance offense under federal 

immigration law, it would subject him to mandatory deportation as a certainty, and it 

would also render him inadmissible. (See, e.g., People v. Alatorre (2021) 70 Cal.App.5th 

757, 770.)

In his declaration in support of his section 1385 motion filed in 2014, appellant 

declared that when he admitted the probation violation, he did not know he was “giving 

up virtually all possible immigration relief from deportation,” and he would not have 

admitted the violation if he understood that he was “giving up all possible immigration 

remedies.” Appellant submitted a declaration in support of his section 1016.5 motion for 

relief in 2015, and stated he “did not know and was not informed that my conviction 

would cause me to be deported,” his attorney did not mention anything about 
36.

immigration and what would happen to his status by pleading no contest, and appellant 

and his attorney did not consider the effect of the conviction on his immigration status 

because they “never talked about it.” Appellant further stated he did not remember 

seeing, reviewing, or signing a form that explained the immigration consequences of the 

plea,” and he would not have entered the plea if he had known that his plea would result 

in his mandatory deportation and inadmissibility.

In his declaration filed in 2018 to support the instant section 1473.7 motion for 

relief, appellant again stated he did not know and was not informed that his conviction 

would result in his mandatory deportation, and he never saw or signed a document that 

explained such consequences. Appellant did not recall his attorney telling him there 

would be any immigration consequences from his conviction, and if they had discussed 

it, appellant would have told him about the pending visa petition filed by his father.

Appellant declared that his current attorney showed him the transcript of the plea 

hearing, and he did not recall the court discussing the immigration consequences even in 

the “generic” way shown in the transcript. Appellant’s current attorney advised him that 

his attorney at the plea hearing, Mr. Rendahl, “discussed immigration issues generally 

with the judge [at the time of the plea] and Mr. Rendahl said he discussed this with me,” 

but appellant did not recollect any conversations with Mr. Rendahl about his immigration 

consequences. Appellant declared that if Mr. Rendahl “did tell me anything, it must have 

been something very generic” and not that he would be subject to mandatory deportation 

and ineligible for lawful permanent resident status. Appellant stated that he had reviewed 

the plea transcript and assumed he did not want to contradict his attorney when the court 

asked if they had discussed immigration consequences. Appellant again declared that if 

he had known or understood that his plea would result in mandatory deportation and 

inadmissibility, he would not have entered the plea because of his pending visa petition.

Based on this court’s independent review, the entirety of the record does not 

undermine the credibility of the statements in appellant’s postconviction declarations. 
37.

The record does not contain a change-of-plea form, or any document signed by appellant 

at the time of his plea, that contained the section 1016.5 advisement or stated anything 

about the immigration consequences resulting from pleading to felony possession of 

cocaine.

Mr. Rendahl, his attorney at the 2001 plea hearing, did not testify at any of the 

evidentiary hearings on his postconviction motions for relief. He submitted a declaration 

as part of the instant proceedings, and stated he had “no independent recollection” of his 

specific conversations with appellant, thus eliminating any direct evidence to contradict 

appellant’s specific claims. Mr. Rendahl cited his usual practice at the time – to advise 

clients “that their plea may have immigration consequences and this case can cause you 

to be deported, however it is unknown if you will actually be deported,” which is 

consistent with the section 1016.5 advisement. Mr. Rendahl further stated it was also his 

practice to provide clients with immigration consequences of their plea “in relation to 

their status that they informed me of,” from undocumented up to a resident alien with a 

green card and in the process of seeking to become a citizen.

In contrast to Mr. Rendahl’s lack of independent recollection, appellant stated that 

he never discussed his specific immigration consequences with his attorney prior to the 

plea, he never knew he would be subject to mandatory deportation and inadmissibility as 

a result of his conviction, and he would have remembered such a conversation because of 

the impact on his pending visa petition. (See, e.g., Camacho, supra, 32 Cal.App.5th at 

pp. 1002–1003 [reliance on usual practices insufficient to refute moving party’s specific 

declaration].)

1. The Trial Court’s Factual Findings

The People assert we must defer to the trial court’s factual findings when it denied 

his section 1473.7 motion, and its rejection of appellant’s credibility in his 2018 

declaration compared to the other declarations he filed in support of his postconviction 

motions about whether counsel advised him, and he understood the mandatory 
38.

immigration consequences of his plea. As explained in Vivar, however, where the facts 

“derive entirely from written declarations and other documents,” the reviewing court 

must “decide, based on its independent judgment, whether the facts establish prejudice 

under section 1473.7.” (Vivar, supra, 11 Cal.5th at pp. 527–528, italics added.) All of 

appellant’s postconviction motions for relief, including the instant section 1473.7 motion, 

were exclusively based on documentary evidence and declarations, and no witnesses 

were called or testified at any of the hearings on these motions. We are thus not bound 

by the trial court’s factual findings when it denied his section 1473.7 motion.

In supplemental briefing, the People acknowledge Vivar’s holding about the 

independent review standard but assert this court must defer to “factual findings by the 

original plea court that did take evidence at the time of the plea,” because those findings 

undermine the credibility of appellant’s declaration in support of his section 1473.7 

motion. The People argue that appellant’s plea hearing in 2001 was “an evidentiary 

hearing” and entitled to deference.

“The trial court questioned appellant and his counsel, viewing and listening 

to determine the credibility of their responses as needed to make a finding 

that appellant understood the consequences of his plea. Absent such a 

finding, the court could not have accepted the plea. This factfinding by the 

plea court is not subject to revisiting merely because appellant was willing 

to make contrary assertions years later. Rather, those facts are binding, 

and, in light of those facts, appellants’ motion was insufficiently credible to 

establish prejudicial error.”

The People further argue that once the court accepted appellant’s plea in 2001, it 

“necessarily found appellant credible in his agreement that counsel did discuss with him 

the ‘possibilities’ the court had just recited that could arise ‘because of the conviction of 

this.’ Thus, here, when appellant filed a motion that broadly alleged under oath that his 

counsel did not discuss those possibilities with him before he pled, those allegations were 

to be rejected on their face as contrary to the facts established by the factfinder – i.e., the 

trial court, at the time of the plea.” (Italics added.)
39.

There are several problems with the People’s arguments about deference to these 

alleged factual findings, both in the abstract and as applied to this case. First, the 

People’s premise is that in reviewing a moving party’s section 1473.7 motion, the trial 

court’s original acceptance of the moving party’s plea bars relief as long as the court gave 

the section 1016.5 advisement at the plea hearing. However, Vivar held that compliance 

with the generic section 1016.5 advisement, which only addresses the possibility of 

deportation, may be insufficient to bar relief under section 1473.7 if the moving party 

pleaded to an offense that was going to result in his mandatory deportation. (Vivar, 

supra, 11 Cal.5th at p. 533.)

In addition, the People’s arguments undermines the intent behind the enactment 

and subsequent amendment of section 1473.7: “Because 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 [citations], both the Legislature and the 

courts have sought to ensure ... 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. [Citations.]” (Vivar, supra, 11 Cal.5th at p. 516.) “The 

Legislature instructed courts to interpret section 1473.7 ‘consistent with the findings and 

declarations made in section 1016.2 of the Penal Code’ [citation] – which in turn 

articulated a purpose ‘to codify ... related California case law and to encourage the 

growth of such case law in furtherance of justice’ [citation].” (Id. at pp. 525–526.)

As applied to this case, the People’s claim about implied factual findings at the 

plea hearing would be meritorious if the plea transcript showed that the court advised 

appellant that he was going to be subject to mandatory deportation if he pleaded to the 

charged felony offense, and appellant and his attorney replied that they had discussed the 

mandatory immigration consequences. (See, e.g., People v. Olvera (2018) 24 

Cal.App.5th 1112, 1114–1115 [appellant signed form acknowledging his no-contest plea 

“ ‘will, now or later, result in ... deportation, exclusion from admission or 
40.

readmission’ ”].) In this case, however, the plea transcript shows that, at most, appellant 

was aware of the possible immigration consequences, as required by section 1016.5:

“THE COURT: [I]f he’s an alien and not a citizen and he’s out 

on the electronic monitor you know Immigration and Naturalization can 

snatch him up ... off the street and deport him for this type of offense even 

if he’s on the electronic monitor because he’s not in custody, physical 

custody. I think you need to warn him that if Immigration decided to, they 

could deport him, refuse him reentry or refuse him the right to become an 

American citizen because of this.

“Mr. RENDAHL: Yes, I did discuss that with him.

“THE COURT: He understands those possibilities?

“[APPELLANT]: Yes.” (Italics added.)

While the court complied with section 1016.5 at the plea hearing in 2001, the 

responses from appellant and his attorney indicated that they had discussed possible

immigration consequences – that “[i]f” he was not a citizen and “if” the Immigration and 

Naturalization Service decided to, they “could” deport him, refuse him reentry, or refuse 

him the right to become a citizen – and appellant was aware of these possible

consequences. The court’s compliance with section 1016.5 at the plea hearing, and 

acceptance of appellant’s plea, did not constitute implied factual findings that appellant 

was subjectively aware of the actual mandatory deportation consequences of his plea to 

an offense relating to a controlled substance.

D. Prejudice

The second question in evaluating appellant’s section 1473.7 motion is whether 

appellant was prejudiced by his own subjective error about the mandatory immigration 

consequences of his plea. (Vivar, supra, 11 Cal.5th at p. 523.) In denying appellant’s 

section 1473.7 motion and rejecting his credibility and the ineffective assistance claim, 

the superior court did not reach the question of prejudice. Instead, as explained above, 

the court found appellant’s attorney was not ineffective since appellant received the 
41.

section 1016.5 advisement about the possible consequences at his plea hearing, and 

appellant and his attorney acknowledged they had discussed those issues.

“[S]howing prejudicial error under [the 2019 version of] 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. When courts assess whether a petitioner has shown that 

reasonable probability, they consider the totality of the circumstances. [Citation.] 

Factors particularly relevant to this inquiry include the defendant’s ties to the United 

States, the importance the defendant placed on avoiding deportation, the defendant’s 

priorities in seeking a plea bargain, and whether the defendant had reason to believe 

an immigration-neutral negotiated disposition was possible. [Citations.]” (Vivar, supra, 

11 Cal.5th at pp. 529–530.) “The focus [is] on ‘what the defendant would have done, not 

whether the defendant’s decision would have led to a more favorable result.’ ” (Id. at 

pp. 528–529.) In making this assessment, we consider the totality of the circumstances. 

(Id. at p. 529.)

A “ ‘prejudicial error’ occurs under [the 2019 version] of section 1473.7 when 

there is a reasonable probability that the person would not have pleaded guilty – and 

would have risked going to trial (even if only to figuratively through a ‘ “Hail Mary” ’) –

had the person known that the guilty plea would result in mandatory and 

dire immigration consequences. [Citation.]” (Mejia, supra, 36 Cal.App.5th at p. 871, 

quoting Lee v. United States (2017) __ U.S. __, [137 S.Ct. 1958, 1967]; Camacho, supra, 

32 Cal.App.5th at p. 1010.)

In evaluating the record for prejudice as required by the 2019 amendments, the 

declarations filed in support of appellant’s section 1473.7 motion raise the strong 

inference that his subjective error about the mandatory immigration consequences of his 

plea was prejudicial. At the time of his section 1473.7 motion in 2018, appellant was 

41 years old, and declared he had lived in the United States since 1996. Appellant never 
42.

stated his birthdate, but his declaration indicates he was born in or about 1977, which 

meant he was 19 years old when he came to the United States. He married a citizen in 

2005, they had two children who were also citizens, and his “whole life is here.” A 

declaration from appellant’s employment supervisor stated that he had worked for the 

same construction company for five years, and he was hardworking, reliable, and 

responsible; declarations from other family members stated he was the main source of 

their income.

More importantly, appellant and his current immigration attorney declared there 

was a visa petition that was pending at the time of his plea in 2001 that essentially was 

nullified when he pleaded to the controlled substance offense. Appellant declared that he 

did not recall discussing the immigration consequences of his plea with his attorney 

because “I would have informed him that I currently had an approved visa petition filed 

by my lawful permanent resident father that I planned to use to apply for lawful 

permanent resident status in the future.” Appellant declared that if his attorney told him 

that “the plea would make me ineligible for lawful permanent resident status, which I 

planned to pursue through the petition my father filed, I would have not taken the plea.” 

(Italics added.) If he “understood that the plea would make me ineligible to apply for 

lawful permanent resident status, I would certainly have asked more questions and 

explained my father had petitioned for me. I would not have taken the plea if I 

understood it made me ineligible for lawful permanent resident status.” Appellant thus 

effectively that he did not tell his attorney about the pending visa petition at the time of 

the plea, and they never discussed the mandatory deportation consequences.

The declaration from appellant’s immigration attorney provided further evidence 

about this “pending” petition. She stated that at the time of his plea, appellant was “the 

derivative beneficiary” of a visa petition filed on May 21, 1992. “[A]t the time he 

entered the plea, [appellant] had an approved visa petition filed by his then-lawful 

permanent resident father, which had already been pending for almost 10 years and 
43.

would have rendered him eligible for lawful permanent resident status as soon as the 

priority date become current, so long as he was not inadmissible.” (Italics added.)

The entirety of the record suggests there was a reasonable possibility that appellant 

would not have pleaded to the charged offense if he had been aware of the mandatory 

deportation consequences, so that his subjective error about the mandatory deportation 

consequences of his plea would be prejudicial. There is an important evidentiary gap, 

however, to establish the inherent prejudice in this case. While the declaration from 

appellant’s immigration attorney addressed the existence of the visa petition, she did not 

explain the meaning of that petition as being “approved” and “pending,” what that meant 

in 2001, why the petition had been pending for 10 years, and whether appellant knew 

about these circumstances at the time of his plea. The instant record does not contain the 

visa petition, any documentary evidence about the specific status of that petition at the 

time appellant entered his plea in 2001, whether appellant knew about the existence and 

status of that petition at the time he entered his plea in 2001, or whether it was it entirely 

speculative that a pending visa petition was going to be granted.

Due to the retroactive amendments to section 1473.7, appellant merits the 

opportunity to amend his motion to attempt to make a showing that he is entitled to relief 

due to his prejudicial subjective error, based on the existence and status of the visa 

petition at the time of his plea, and appellant’s knowledge about the existence and status 

of that petition in 2001. (See Camacho, supra, 32 Cal.App.5th at p. 1009.) Therefore, 

we will remand the matter for that limited purpose.

In sum, we are affirming the trial court’s findings that appellant’s section 1473.7 

motion lacked merit based on his claims under section 1016.5 and ineffective assistance 

of counsel. However, we are conditionally reversing the order denying the motion and 

remanding the matter to allow him to amend the motion and provide additional evidence 

to meet his burden of proving by a preponderance of the evidence his prejudicial error in 

not meaningfully understanding or knowingly accepting the actual immigration 
44.

consequences of his plea. The trial court may then reconsider the motion under the legal 

framework as set forth in the 2019 version of section 1473.7, as set forth in Vivar, 

Camacho, and Mejia. If appellant declines to amend his motion within 30 days, the trial 

court shall reinstate the order denying his section 1473.7 motion.

DISPOSITION

The trial court’s order denying appellant’s section 1473.7 for relief is conditionally 

reversed and the matter remanded for further appropriate proceedings.

POOCHIGIAN, ACTING P. J.

WE CONCUR:

DETJEN, J.

SNAUFFER, J.