Filed 8/21/20 P. v. Amirian CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH AMIRIAN,

Defendant and Appellant.

B298094

(Los Angeles County

Super. Ct. No. GA087122)

APPEAL from an order of the Superior Court of Los 

Angeles County, Terry Smerling, Judge. Affirmed. 

Law Offices of James Koester and James Koester for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

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

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

I. INTRODUCTION

In 2012, appellant Joseph Amirian pled no contest to two 

counts of practicing physical therapy without a license (Bus. & 

Prof. Code, § 2052, subd. (a).) In 2014, after finding Amirian had 

fulfilled the conditions of his probation, the court allowed 

Amirian to withdraw his no-contest plea and dismissed the 

charges against him pursuant to Penal Code1section 1203.4, 

subdivision (a).

In 2019, Amirian brought a motion pursuant to section 

1473.7, subdivision (a)(1), which permits a noncitizen defendant 

who is no longer in custody to move to vacate a conviction and to 

withdraw his or her plea as legally invalid if the defendant’s

ability to meaningfully understand “the actual or potential 

adverse immigration consequences of a plea of guilty or nolo 

contendere” has been damaged “due to prejudicial error.” The 

superior court denied Amirian’s motion, and Amirian appealed.

Amirian contends on appeal that: (1) he was entitled to 

presumptive relief under section 1473.7, subdivision (e)(2); 

(2) even without presumptive relief, he was otherwise entitled to 

relief under section 1473.7, subdivision (a)(1), based on 

prejudicial error; and (3) the trial court’s immigration advisement 

prejudicially deviated from the statutory language of section 

1016.5. We discern no error by the trial court and affirm the 

order. 

1 Further undesignated statutory references are to the Penal 

Code.
3

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Background and Charges

Amirian, a permanent resident of the United States, was a 

licensed physical therapist. In 2008, Amirian’s physical therapy 

license was revoked as a result of a misdemeanor forgery

conviction.

2

For reasons not appearing in the record, Amirian’s license 

was suspended for one year, from August 2010 through August 

2011. On five occasions during this period, Amirian treated a 

patient using another physical therapist’s identity.

In a 10-count felony complaint filed on August 21, 2012, the 

People charged Amirian with five counts of practicing physical 

therapy without a license (Bus. & Prof. Code, § 2052, subd. (a)) 

and five counts of forging another person’s name to a medical 

record (§ 470, subd. (a)).

B. Amirian’s Plea and Sentence

On December 19, 2012, prior to the preliminary hearing, 

Amirian agreed to plead no contest to two felony counts of 

practicing physical therapy without a license. At the plea 

hearing, the court advised Amirian there were “certain 

consequences that will follow from your pleas of no contest. If 

you’re not a citizen, you would be deported, be denied re-entry if 

you leave the country, denied naturalization.” The court inquired 

whether Amirian was entering his plea because he believed it 

was in his “best interest to do so,” and Amirian responded, 

“That’s correct, your honor.” Amirian’s attorney stated: “I want 

the record to show there are potential immigration consequences. 

2

In 2009, the conviction was vacated and dismissed under 

section 1203.4.
4

My client and I have discussed that. He has an immigration 

lawyer.” Amirian confirmed his understanding of the 

consequences of his plea. After finding Amirian had entered the 

plea knowingly and intelligently, the court suspended imposition 

of sentence and placed Amirian on probation for three years. All 

other counts were dismissed.

C. Section 1203.4 Relief

In 2014, the court granted Amirian’s motion for relief under 

sections 17 and 1203.4, after finding he had complied with all the 

terms of probation. Under section 17, the court terminated his

probation and deemed the two offenses to be misdemeanors. (See 

§ 17, subd. (b).) Under section 1203.4, the court allowed Amirian 

to withdraw his no-contest plea and dismissed the charges.

3

 (See 

§ 1203.4, subd. (a)(1).). 

D. Section 1473.7 Motion to Vacate Conviction

On January 24, 2019, Amirian filed an unopposed motion 

for relief under section 1473.7, which permits a person who is no 

longer in criminal custody to file a motion to vacate a conviction 

or sentence if he or she was unable to understand the actual or 

potential adverse immigration consequences of a plea of guilty or 

no contest. The motion explained that an expungement under 

section 1203.4 does not nullify a conviction for immigration 

3 The “expungement” provided by section 1203.4 is limited. 

In a subsequent prosecution, “the prior conviction may be pleaded 

and proved and shall have the same effect as if probation had not 

been granted or the accusation or information dismissed.” 

(§ 1203.4, subd. (a)(1).) The defendant must also disclose the 

conviction in certain contexts, such as when applying for public 

office or for licensure with a state or local agency. (Ibid.)
5

purposes,4 and thus Amirian’s application for green card renewal 

and future citizenship could be denied as a result of his 

conviction. The motion further stated that Amirian had recently 

learned that if he had pled to a different Business and 

Professions Code offense, his conviction could ultimately have 

been reduced to an infraction,5 which allegedly was not a 

conviction for immigration purposes. Amirian claimed that, at 

the time of his plea, he did not understand the difference. In 

short, he urged that the alleged prejudicial error was the failure 

to negotiate a plea deal that would ultimately result in 

infractions and not jeopardize his chances at citizenship.

In support of the motion, Amirian presented the 

declarations of an immigration attorney, Roger Gleckman, and a 

licensing attorney. They explained that vacation of the 

convictions would enhance Amirian’s prospects of regaining his 

physical therapy license and obtaining a favorable immigration 

disposition. Amirian’s own declaration stated he would suffer 

adverse immigration consequences as a result of his convictions. 

Gleckman had advised Amirian that his application for green 

4 See People v. Martinez (2013) 57 Cal.4th 555, 560

(Martinez), citing Ramirez-Castro v. INS (9th Cir. 2002) 287 F.3d 

1172, 1174–1175; People v. Holman (2013) 214 Cal.App.4th 1438, 

1465, 1468 (Holman); People v. Frawley (2000) 82 Cal.App.4th 

784, 791.

5

“An infraction is a relatively minor violation of law, which 

cannot result in imprisonment or loss of liberty, and as 

distinguished from a felony or a misdemeanor, does not result in 

the right of a jury trial.” (People v. Kus (2013) 219 Cal.App.4th 

Supp. 17, 21; Pen.Code, § 17.)
6

card renewal and future citizenship “could be denied as a result 

of this conviction.”

Amirian declared: “I have since found out that there are a 

list of similar charges that are reducible to infractions, and that if 

I had pled to a charge that could later be reduced to an infraction, 

that an infraction would not be considered a criminal offense 

under federal immigration law. [¶] If, at the time of the plea, I 

had understood that there was an alternative charge to which I 

could have pled that would have ultimately been reducible to an 

infraction, I would have asked my attorney to negotiate a plea to 

one of those offenses. [¶] Unfortunately, Mr. Gleckman has 

informed me that an expungement does not get rid of the 

conviction under federal immigration law.”

Amirian also explained that he and his family had escaped 

persecution in Iraq and arrived in the United States when he was 

15 years old. His parents became United States citizens, but they 

were elderly with health problems, and Amirian lived with them 

and took care of them. He considered the United States to be his 

home country.

E. Hearing and Disposition

At the hearing on March 22, 2019, no testimony was heard. 

The trial judge remarked that Amirian’s “conduct [which led to 

his plea] was egregious. He had a prior incident . . . where his 

license got suspended[.]” Defense counsel argued that Amirian 

had not understood, for immigration purposes, the difference 

between a disposition that resulted in an expungement as 

opposed to an infraction. The trial judge responded that the 

likelihood of Amirian obtaining a plea deal of an infraction was a 

“complete [pie] in the sky,” and Amirian’s attorney at the time of 
7

the plea had secured an “excellent disposition.” The court denied

the motion, and Amirian timely appealed.

6

III. DISCUSSION

We conclude the trial court did not abuse its discretion in 

denying Amirian’s section 1473.7 motion because: (1) Amirian

was not entitled to presumptive relief under section 1473.7, 

subdivision (e)(2); (2) Amirian has not demonstrated he suffered 

prejudicial error pursuant to section 1473.7, subdivision (a)(1); 

and (3) the court’s immigration advisement substantially 

complied with the requirements of section 1016.5. 

A. Legal Standards

Section 1473.7, which took effect January 1, 2017, 

authorizes a noncitizen defendant who is no longer in criminal 

custody to move to vacate a conviction or sentence when the

“conviction or sentence is legally invalid due to prejudicial error 

damaging the moving party’s ability to meaningfully understand, 

defend against, or knowingly accept the actual or potential 

adverse immigration consequences of a plea of guilty or nolo 

contendere.” (§ 1473.7, subd. (a)(1), added by Stats. 2016, 

ch. 739, § 1 (AB 813), effective January 1, 2017.)

Effective January 1, 2019, section 1473.7 was amended to 

impose a presumption of legal invalidity for pleas made pursuant 

to certain qualifying statutes: “There is a presumption of legal 

invalidity for the purposes of paragraph (1) of subdivision (a) if 

the moving party pleaded guilty or nolo contendere pursuant to a 

statute that provided that, upon completion of specific 

6 An order denying a motion brought under section 1473.7 is 

appealable as an order after judgment affecting the substantial 

rights of the party. (§ 1473.7, subd. (f); § 1237, subd. (b).) 
8

requirements, the arrest and conviction shall be deemed never to 

have occurred, where the moving party complied with these 

requirements, and where the disposition under the statute has 

been, or potentially could be, used as a basis for adverse 

immigration consequences.” (§ 1473.7, subd. (e)(2), as amended 

by Stats. 2018, ch. 825, § 2.) 

Assuming no presumption of legal invalidity applies, a 

court must grant the section 1473.7 motion “if the moving party 

establishes, by a preponderance of the evidence,” the grounds for 

relief under subdivision (a)(1).7 (§ 1473.7, subd. (e)(1).) The only 

finding required under subdivision (a)(1) 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), as amended by Stats. 2018, ch. 825, § 2.) 

If the court grants a section 1473.7 motion to vacate a 

conviction obtained through a plea of guilty or nolo contendere, 

the court must allow the moving party to withdraw his or her

plea. (§ 1473.7, subd. (e)(3).) 

7 A party moving for relief under subdivision (a)(1) must

“establish that the conviction or sentence being challenged is 

currently causing or has the potential to cause removal or the 

denial of an application for an immigration benefit, lawful status, 

or naturalization.” (§ 1473.7, subd. (e)(1), as amended by Stats. 

2018, ch. 825, § 2.) The People do not challenge Amirian’s alleged 

standing to petition for section 1473.7 relief under that standard.
9

B. Amirian Has Not Demonstrated He Is Entitled to a 

Presumption of Legal Invalidity Under Section 1473.7, 

Subdivision (e)(2).

Amirian contends he is entitled to a presumption that his 

plea was legally invalid under section 1473.7, subdivision (e)(2). 

For the reasons that follow, the contention is without merit.

1. Amirian Did Not Enter His Plea “Pursuant to” a 

Qualifying Statute, and Thus He Was Not Entitled to a 

Presumption of Legal Invalidity Under the Plain Terms of 

Section 1473.7, Subdivision (e)(2).

The construction and interpretation of a statute is a 

question of law that we consider de novo on appeal. (John v. 

Superior Court (2016) 63 Cal.4th 91, 95–96.) We begin by 

examining the plain, ordinary words of the statute as an 

indicator of legislative intent, and if the statutory language is 

clear and unambiguous, we do not indulge in further statutory 

construction. (People v. Colbert (2019) 6 Cal.5th 596, 603 [“ ‘ “if 

the statutory language is not ambiguous, then . . . the plain 

meaning of the language governs” ’ ”]; People v. Manzo (2012) 53 

Cal.4th 880, 885 (Manzo) [“the plain, commonsense meaning of 

the words in the statute” is “ ‘ “generally the most reliable 

indicator of legislative intent and purpose” ’ ” and when the 

“ ‘language of a statute is clear, we need go no further’ ”].) “Only 

when the statute’s language is ambiguous or susceptible of more 

than one reasonable interpretation, may the court turn to 

extrinsic aids to assist in interpretation.” (Murphy v. Kenneth 

Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.)

As relevant here, section 1473.7, subdivision (e)(2), creates 

a presumption of legal invalidity “if the moving party pleaded 

guilty or nolo contendere pursuant to a statute that provided that, 
10

upon completion of specific requirements, the arrest and 

conviction shall be deemed never to have occurred, where the 

moving party complied with these requirements, and where the 

disposition under the statute has been, or potentially could be, 

used as a basis for adverse immigration consequences.” 

(§ 1473.7, subd. (e)(2), italics added.)

By the plain language of subdivision (e)(2), Amirian did not 

enter his plea “pursuant to” a qualifying statute. (See § 1473.7, 

subd. (e)(2).) Amirian’s plea was based on a violation of Business 

and Professions Code section 2052, subdivision (a), which

describes the elements of the unauthorized practice of medicine, 

including physical therapy. (See Bus. & Prof. Code, § 2052, 

subd. (a).) Business and Professions Code section 2052, 

subdivision (a), does not provide that “upon completion of specific

requirements, the arrest and conviction shall be deemed never to 

have occurred,” as required by section 1473.7, subdivision (e)(2). 

(Bus. & Prof. Code, § 2052, subd. (a); § 1473.7, subd. (e)(2).) 

Because Amirian cannot establish that his plea was “pursuant to” 

a statute that satisfied the requirements of section 1473.7, 

subdivision (e)(2), he is not entitled to a presumption under that 

subdivision that his plea was legally invalid. 

2. Amirian’s Expansive Interpretation of Section 

1473.7, Subdivision (e)(2), Is Inconsistent with the Terms 

of the Statute. 

Amirian contends his plea was presumptively illegal

because section 1473.7, subdivision (e)(2), was “meant to apply to 

convictions, such as appellant’s, in which the conditions of the 

plea contemplate the defendant’s ability to ultimately dismiss the 

accusatory pleading under . . . section 1203.4, subdivision (a).” In 

effect, Amirian characterizes his plea as one made “pursuant to”
11

section 1203.4. We reject Amirian’s proposed expansion of 

subdivision (e)(2) to encompass all “section 1203.4 eligible pleas.”

8

Neither the terms of the statute nor the circumstances of 

Amirian’s plea support the conclusion that his plea was entered 

“pursuant to” section 1203.4. 

Section 1203.4 provides that under certain circumstances, 

such as when a defendant has fulfilled the conditions of 

probation, he or she shall “be permitted by the court to withdraw 

his or her plea of guilty or plea of nolo contendere and enter a 

plea of not guilty; or, if he or she has been convicted after a plea 

of not guilty, the court shall set aside the verdict of guilty; and, in 

either case, the court shall thereupon dismiss the accusations or 

information against the defendant and except as noted [ ], he or 

she shall thereafter be released from all penalties and disabilities 

resulting from the offense of which he or she has been convicted.” 

(§ 1203.4, subd. (a)(1).) “ ‘A grant of relief under section 1203.4 is 

intended to reward an individual who successfully completes 

probation by mitigating some of the consequences of his 

conviction and, with a few exceptions, to restore him to his former 

status in society to the extent the Legislature has power to do so 

[citations].’ [Citation.]” (People v. Field (1995) 31 Cal.App.4th 

1778, 1787.)

8 Because we reject Amirian’s preliminary contention that 

section 1473.7, subdivision (e)(2), encompasses “section 1203.4 

eligible pleas,” and that his plea was therefore “pursuant to” 

section 1203.4, we need not reach the secondary issue presented:

whether section 1203.4 is a statute which meets the requirement 

of section 1473.7, subdivision (e)(2), that “the arrest and 

conviction shall be deemed never to have occurred.” (See 

§ 1473.7, subd. (e)(2).)
12

Amirian asserts that “implied within a plea in which the 

defendant is granted probation is an implied expectation that if 

the defendant successfully completes the probation, he or she will 

be eligible for the relief offered in . . . section 1203.4.”9 Thus, 

according to Amirian, section 1473.7, subdivision (e)(2), was 

intended to apply to all “section 1203.4 eligible pleas,” even if the 

plea was entered “pursuant to” a different underlying statute.

But Amirian’s broad reading of subdivision (e)(2) changes its 

scope and impermissibly adds to its terms. If there is no 

ambiguity in the statutory language, a court must presume the 

Legislature “ ‘meant what it said, and the plain meaning of the 

language governs.’ ” (Lennane v. Franchise Tax Bd. (1994) 9 

Cal.4th 263, 268; Manzo, supra, 53 Cal.4th at p. 885.) As a 

corollary, courts “ ‘may not rewrite the statute to conform to an 

assumed intention that does not appear in its language.’ ” 

(California Water Impact Network v. County of San Luis Obispo

(2018) 25 Cal.App.5th 666, 678 (California Water); see also 

Farnow v. Superior Court (1990) 226 Cal.App.3d 481, 486 [“a 

court may not rewrite a law, supply an omission or give words an 

effect different from the plain and direct import of the terms 

used”].) In interpreting section 1473.7, subdivision (e)(2), our job

“ ‘is simply to ascertain and declare what the statute contains, 

9 Amirian relies on Holman for this point, which did not 

address section 1473.7, subdivision (e)(2). Although Holman

observed that “ ‘plea bargains may contain implied terms,’ ” the 

Holman defendant’s expectation of section 1203.4 relief was not 

“implied,” but clearly articulated in a contract she signed as part 

of her plea bargain. (Holman, supra, 214 Cal.App.4th at 

pp. 1472–1474.) 
13

not to change its scope by reading into it language it does not 

contain.’ ” (California Water, at p. 678.)

A literal, commonsense reading of section 1473.7, 

subdivision (e)(2), is inconsistent with Amirian’s attempted 

amplification to include pleas purportedly made with “an implied 

expectation” of section 1203.4 relief.10 We interpret subdivision 

(e)(2) according to its plain, ordinary terms, without reading into 

it words or assumed meanings it does not contain. (See 

California Water, supra, 25 Cal.App.5th at p. 678.) As a 

threshold requirement, section 1473.7, subdivision (e)(2), clearly 

says the plea must have been made “pursuant to” a qualifying 

statute—not pursuant to a future qualifying statute impliedly 

contemplated at the time of the plea. (See § 1473.7, subd. (e)(2).) 

We have already determined that Amirian’s plea was to a 

violation of Business and Professions Code section 2052, 

subdivision (a), which is not a qualifying statute under section 

1473.7, subdivision (e)(2). Thus, Amirian is not entitled to a 

presumption that his plea was legally invalid. 

We are not persuaded by Amirian’s arguments regarding 

public policy and the legislative intent to broadly provide relief to 

noncitizen defendants who may be suffering adverse immigration 

consequences as a result of their unintended pleas. Amirian 

urges us to consider legislative history and analogous diversion 

10 Indeed, we are doubtful the Legislature would have 

intended the result Amirian advances here by proposing that 

inherent in every plea resulting in probation is an implied 

expectation of section 1203.4 relief, which would empower any 

defendant who successfully completes probation and is granted 

section 1203.4 relief to move to vacate his or her conviction as 

presumptively invalid under section 1473.7, subdivision (e)(2).
14

statutes, applying general principles of statutory construction 

that favor granting broad relief “to ameliorate a defendant’s 

reliance upon ambiguous statutory language.” But the statutory 

ambiguities that are his focus are within section 1203.4, not

section 1473.7. Because section 1473.7, subdivision (e)(2), is clear 

and unambiguous in its intended scope, it is “ ‘ “ ‘[not] necessary 

to resort to [extrinsic] indicia of the intent of the Legislature.’ ” ’ ” 

(City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 419; see also 

Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 326 [“courts 

will not ‘interpret away clear language in favor of an ambiguity 

that does not exist’ ”].) We are mindful that “ ‘[c]rafting statutes 

to conform with policy considerations is a job for the Legislature, 

not the courts.’ ” (California Ins. Guarantee Assn. v. Workers’

Comp. Appeals Bd. (2005) 128 Cal.App.4th 307, 316.)

Finally, the record does not support Amirian’s contention 

that “the conditions of the plea contemplate[d]” section 1203.4 

relief. We find no evidence that Amirian’s plea was “induce[d]” 

by a promise or agreement to seek section 1203.4 relief in the 

future. There is no indication that section 1203.4 was discussed 

at the plea hearing, or that it was a part of the negotiated plea 

deal. The only evidence Amirian adduces is a statement in his 

2019 declaration in support of the section 1473.7 motion: 

“Unfortunately, Mr. Gleckman has informed me that an 

expungement does not get rid of the conviction under federal 

immigration law.” But this statement does not support the 

proposition that, seven years earlier, Amirian was misled into 

entering his plea with the expectation that he would ultimately 

obtain the benefits of section 1203.4. Amirian’s expansive 

interpretation of section 1473.7, subdivision (e)(2), is neither 
15

supported by the language of the statute nor the circumstances of 

his plea.

C. The Court Did Not Abuse Its Discretion by Denying

Amirian’s Request for Relief Pursuant to Section 1473.7, 

Subdivision (a)(1), Because He Has Not Demonstrated 

Prejudicial Error. 

Even if a defendant is not entitled to presumptive relief 

under section 1473.7, subdivision (e)(2), he may nonetheless seek 

relief pursuant to section 1473.7, subdivision (a)(1). That section 

authorizes a noncitizen defendant who is no longer in criminal 

custody to move to vacate a conviction or sentence when the

“conviction or sentence is legally invalid due to prejudicial error 

damaging the moving party’s ability to meaningfully understand, 

defend against, or knowingly accept the actual or potential 

adverse immigration consequences of a plea of guilty or nolo 

contendere.” (§ 1473.7, subd. (a)(1).) 

As relevant here, the defendant bears the burden of 

establishing two elements of “prejudicial error”: (1) he failed to 

“meaningfully understand” or “knowingly accept” the actual or 

potential adverse immigration consequences of his plea; and 

(2) had the defendant understood the consequences, it is 

“reasonably probable” he or she would not have entered the plea. 

(People v. Mejia (2019) 36 Cal.App.5th 859, 862 (Mejia); People v. 

DeJesus (2019) 37 Cal.App.5th 1124, 1133 (DeJesus).) The focus 

of the inquiry is “the mindset of the defendant and what he or she 

understood—or didn’t understand—at the time the plea was 

taken.” (Mejia, at p. 866; see also People v. Camacho (2019) 32 

Cal.App.5th 998, 1010 (Camacho).)

When an order denying a section 1473.7 motion to vacate a 

conviction is challenged based on statutory error, without a 
16

claimed deprivation of a constitutional right, our review is for 

abuse of discretion.11 (See People v. Rodriguez (2019) 38 

Cal.App.5th 971, 977–978; People v. Vivar (2019) 43 Cal.App.5th 

216, 231; Ogunmowo, supra, 23 Cal.App.5th at p. 76.) Under this 

standard, we must decide “ ‘whether the trial court’s findings of 

fact are supported by substantial evidence, whether its rulings of 

law are correct, and whether its application of the law to the facts 

was neither arbitrary nor capricious.’ ” (People v. Clancey (2013) 

56 Cal.4th 562, 578.)

1. Substantial Evidence Supports the Trial 

Court’s Conclusion That Amirian Understood the 

Immigration Consequences of His Plea. 

In seeking to vacate his plea, Amirian alleges that he 

entered his plea under the mistaken belief that his convictions

would have no immigration consequences. To establish error, 

Amirian must show his or her failure to “ ‘meaningfully 

understand’ ” or “ ‘knowingly accept’ ” the actual or potential 

adverse immigration consequences of the plea. (Mejia, supra, 36 

Cal.App.5th at p. 862; DeJesus, supra, 37 Cal.App.5th at p. 1133.)

Substantial evidence supports the court’s conclusion that 

Amirian understood the immigration consequences of his plea. 

As reflected in the reporter’s transcript and minute order from 

the plea hearing, the trial court expressly advised Amirian that

his plea “will” result in immigration consequences and “would” 

11 Although Amirian proposes that the applicable standard of 

review is de novo, most cases applying that standard have 

involved claims of ineffective assistance of counsel implicating a 

defendant’s constitutional rights. (See, e.g., People v. Tapia

(2018) 26 Cal.App.5th 942, 950; People v. Ogunmowo (2018)

23 Cal.App.5th 67, 76 (Ogunmowo).) 
17

lead to his potential deportation, denial of re-entry, and denial of 

naturalization. Amirian’s attorney indicated on the record that 

he had discussed the “potential immigration consequences” with 

his client, who had also consulted an immigration attorney. The 

court reasonably concluded that Amirian was sufficiently 

informed of any adverse immigration consequences at the plea 

hearing. Amirian and his attorney confirmed his understanding 

of those consequences, and Amirian affirmed he was entering the 

plea knowingly and intelligently because it was in his best 

interest. (See People v. Perez (2018) 19 Cal.App.5th 818, 829–830 

[no lack of “meaningful[ ] understand[ing]” where defense counsel 

and trial court unequivocally explained immigration 

consequences, and defendant affirmed his understanding].) On 

this record, the trial court properly concluded that Amirian failed 

to demonstrate error within the meaning of section 1473.7, 

subdivision (a)(1), by establishing he did not “meaningfully 

understand” or “knowingly accept” the immigration consequences 

of his plea. 

Amirian relies on Camacho and Mejia to establish his 

“subjective unawareness” of the immigration consequences of his 

plea, but those cases are distinguishable. The Camacho

defendant, who was undocumented, pled no contest to an 

aggravated felony conviction, which subjected him to mandatory 

deportation. (Camacho, supra, 32 Cal.App.5th at pp. 1001–1002, 

1004.) At the time of his plea, his attorney informed him he 

would avoid jail time if he entered his plea, but did not discuss

the immigration consequences of his plea, offer other 

alternatives, or direct him to consult an immigration attorney. 

(Id. at pp. 1001–1002.) Camacho submitted a declaration and 

testified that he would not have entered the plea if he had known 
18

it would prevent him from obtaining legal status in the United 

States. (Ibid.) On that record, the court concluded Camacho did 

not “ ‘meaningfully understand’ ” or “ ‘knowingly accept’ ” the 

mandatory immigration consequences of his plea. (Id. at 

p. 1009.) 

Similarly, the Mejia defendant was facing mandatory 

deportation following his plea of guilty to three aggravated 

felonies. (Mejia, supra, 36 Cal.App.5th at pp. 862, 865.) His 

attorney advised that he “had no choice but to take the deal,” and 

did not discuss the immigration consequences of his plea. (Id. at 

p. 863.) Mejia testified that he would not have entered the plea if 

properly advised. (Id. at p. 865.) As in Camacho, the Mejia court 

concluded the defendant did not “ ‘meaningfully understand’ ” or 

“ ‘knowingly accept’ ” the dire immigration consequences of his

plea. (Id. at p. 872.) 

As we have discussed, the circumstances surrounding 

Amirian’s plea were significantly different from Camacho or 

Mejia. Amirian was advised of the immigration consequences of 

his plea by his defense attorney, his immigration attorney, and 

the trial court. Thus, substantial evidence supported the trial 

court’s finding that Amirian failed to demonstrate that he did not 

understand the immigration consequences of his plea.

2. Substantial Evidence Supports the Trial 

Court’s Conclusion That It Was Not Reasonably Probable 

Amirian Would Have Rejected the Bargained Plea. 

As we have said, to be entitled to relief under section

1473.7, subdivision (a)(1), Amirian had to show not only that he 

did not understand the immigration consequences of his plea, but 

also that he would have rejected the plea had he been aware of its 

immigration consequences. (Mejia, supra, 36 Cal.App.5th at 
19

pp. 872–873; Camacho, supra, 32 Cal.App.5th at pp. 1009–1012.) 

This analysis does not simply consider whether it is “ ‘reasonably 

probable the defendant by rejecting the plea would have obtained 

a more favorable outcome,’ ” but whether the defendant “ ‘would 

have chosen to lose the benefits of the plea bargain despite the 

possibility or probability [immigration consequences] would 

nonetheless follow.’ ” (Camacho, supra, 32 Cal.App.5th at 

p. 1010, citing Martinez, supra, 57 Cal.4th at p. 565.) As relevant 

to this case, the defendant must establish that he or she “would 

have rejected an existing plea offer in the hope or expectation 

that he or she might thereby negotiate a different bargain.”

(Martinez, at p. 567.)

Because the burden to show prejudice is on the defendant, 

“the defendant must provide a declaration or testimony stating 

that he or she would not have entered into the plea bargain if 

properly advised.” (Martinez, supra, 57 Cal.4th at p. 565; see also

Camacho, supra, 32 Cal.App.5th at pp. 1001–1002, 1011 

[declaration and testimony established defendant resided in 

United States over 30 years, financially supported wife and 

children who were United States citizens, and would not have 

entered plea if properly advised]; Mejia, supra, 36 Cal.App.5th at 

pp. 863–865, 872; Ogunmowo, supra, 23 Cal.App.5th at pp. 73, 78 

[declaration stated “ ‘I would have rejected the plea agreement 

had I known I could be subject to immigration sanctions’ ”].) “It 

is up to the trial court to determine whether the defendant’s 

assertion is credible, and the court may reject an assertion that is 

not supported by an explanation or other corroborating 

circumstances.” (Martinez, at p. 565.)

“ ‘Courts should not upset a plea solely because of post hoc

assertions from a defendant about how he would have pleaded
20

. . . . [Rather, they] should look to contemporaneous evidence to 

substantiate a defendant’s expressed preferences.’ ” (DeJesus, 

supra, 37 Cal.App.5th at p. 1134, citing Jae Lee v. United States

(2017) 582 U.S. __, __ [137 S.Ct. 1958, 1967] (Lee); Mejia, supra, 

36 Cal.App.5th at p. 872.) Courts have found, for example, that 

an immigration attorney’s declaration that the defendant sought 

his advice prior to entering a plea and the attorney’s 

acknowledgment that the advice given was wrong (Ogunmowo, 

supra, 23 Cal.App.5th at p. 73), or the strength of a defendant’s 

personal connections to the United States, corroborated the 

defendant’s expressed preference for avoiding a plea that carried 

serious immigration consequences. (See Lee, at p. 1968; 

Ogunmowo, at pp. 78–79; Mejia, at pp. 863–865; Camacho, supra, 

32 Cal.App.5th at pp. 1011–1012.)

Amirian’s declaration falls short of the unequivocal 

statement required to establish prejudice, and his expressed 

preference for an alternative immigration-safe disposition is 

uncorroborated by substantial evidence. A party seeking to 

establish prejudice under section 1473.7 must “establish[ ] he or 

she would have rejected the existing plea bargain to accept or 

attempt to negotiate another.” (Martinez, supra, 57 Cal.4th at 

p. 559, italics added.) Amirian failed to make this necessary 

showing in his declaration, which simply stated: “If, at the time of 

the plea, I had understood that there was an alternative charge 

to which I could have pled that would have ultimately been 

reducible to an infraction, I would have asked my attorney to 

negotiate a plea to one of those offenses.” The trial court was 

entitled to conclude that Amirian’s declaration was too 

speculative, attenuated, and unsupported by evidence 

contemporaneous to his plea. There is no evidence that Amirian’s 
21

prevailing concern at the time of the plea hearing was avoiding 

immigration consequences. (See Ogunmowo, supra, 23 

Cal.App.5th at pp. 70, 78–79; Lee, supra, 582 U.S. __ at pp. __, __

[137 S.Ct. at pp. 1960, 1967–1968].) Amirian did not identify

which alternative Business and Professions Code offense he 

would have been eligible for, nor did he present any evidence 

that—in light of his earlier 2008 conviction—an infraction or 

alternative disposition devoid of immigration consequences was 

available to him. (See DeJesus, supra, 37 Cal.App.5th at 

pp. 1135–1136 [no prejudicial error where defendant failed to 

identify or offer corroborating evidence of any “ ‘immigrationneutral disposition to which the prosecutor was reasonably likely 

to agree’ ”].)

Other factors weigh against a finding that Amirian would 

not have entered his plea had he understood its immigration 

consequences. Although Amirian argues on appeal that he was 

prejudiced by his mistaken understanding of the immigration 

consequences of expungement under section 1203.4, nothing in 

the record indicates this mistaken understanding induced his 

plea. There is no evidence that section 1203.4 was discussed at 

the plea hearing, or that Amirian anticipated when he entered 

his plea that he would seek section 1203.4 relief in the future. 

Further, Amirian cannot demonstrate prejudice from his 

acceptance of a plea bargain that resulted in a better resolution 

than he was otherwise likely to obtain. (See Lee, supra, 582 U.S. 

__ at p. __ [137 S.Ct. at p. 1966 [defendant who is “highly likely to 

lose at trial . . . will rarely be able to show prejudice from 

accepting a guilty plea that offers him a better resolution.”].) 

Unlike the defendants in the cited cases who were found to have 

suffered prejudice, Amirian was not subject to mandatory 
22

deportation or prison time, or prevented from becoming a 

permanent resident, as a result of his plea. (See Camacho, supra, 

32 Cal.App.5th at p. 1002, 1004; Mejia, supra, 36 Cal.App.5th at 

p. 865; Martinez, supra, 57 Cal.4th at p. 560; Ogunmowo, supra, 

23 Cal.App.5th at pp. 71, 73; Lee, at p. 1963.) In other words, 

Amirian’s bargained plea—reducing ten felony counts to two, 

which resulted in no prison time—yielded clear benefits, and 

Amirian has not shown he would have rejected them due to 

immigration concerns. 

Amirian contends the trial court abused its discretion by 

focusing exclusively on the unlikelihood that Amirian would have 

obtained a more favorable disposition, and committed error by 

basing its decision on the absence of ineffective assistance of 

counsel. But the probability of obtaining a more favorable 

disposition, whether through trial or further negotiation, is 

inevitably a part of the defendant’s decision whether to plead 

guilty or no contest. (See Martinez, supra, 57 Cal.4th at pp. 564, 

567 [that a more favorable result was not reasonably probable is 

a factor for the trial court to consider when assessing the 

credibility of a defendant’s claim that he or she would have 

rejected the plea bargain if properly advised]; Mejia, supra, 36 

Cal.App.5th at p. 872.) The court considered Amirian’s prior 

criminal record and noted that his attorney had obtained an 

excellent disposition, concluding there was insufficient evidence 

that Amirian would have rejected his bargained plea to attempt 

to negotiate another. The court’s remarks are not indicative of a 

finding based on the effectiveness of counsel, but rather, based on 

an assessment of prejudice. 

In short, we cannot conclude that Amirian met his burden 

of establishing by a preponderance of the evidence that he
23

entered a plea that was legally invalid due to prejudicial error. 

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

section 1473.7 relief.

D. The Trial Court Substantially Complied with Section 

1016.5.

Lastly, Amirian contends that the trial court’s immigration 

admonishments did not comply with the statutory language of 

section 1016.5, and thus prejudiced his understanding of the 

immigration consequences of his plea. For the reasons that 

follow, the claim is without merit.

As an initial matter, we conclude that Amirian forfeited 

this contention by failing to raise it in the trial court. Generally, 

an appellate court will not consider a challenge to a trial court’s 

ruling if the aggrieved party could have, but did not, timely object 

in the trial court. (People v. Fuiava (2012) 53 Cal.4th 622, 691; In 

re S.B. (2004) 32 Cal.4th 1287, 1293.) Amirian failed to raise 

section 1016.5 compliance in the trial court, and thus we need not 

consider it on appeal.

Alternatively, we find that Amirian’s contention fails on the 

merits because the court substantially complied with the 

statutory requirements. Section 1016.5 provides that prior to 

acceptance of a noncitizen defendant’s plea, the trial court must 

administer the following advisement on the record: “If you are not 

a citizen, you are hereby advised that conviction of the offense for 

which you have been charged may have the consequences of 

deportation, exclusion from admission to the United States, or 

denial of naturalization pursuant to the laws of the United 

States.” (§ 1016.5, subd. (a).) If the court fails to comply, the 

court must vacate the judgment and permit the defendant to 

withdraw his or her plea. (§ 1016.5, subd. (b).) 
24

“To prevail on a motion to vacate under section 1016.5, a 

defendant must establish that (1) he or she was not properly 

advised of the immigration consequences as provided by the 

statute; (2) there exists, at the time of the motion, more than a 

remote possibility that the conviction will have one or more of the 

specified adverse immigration consequences; and (3) he or she 

was prejudiced by the nonadvisement.” (People v. Totari (2002) 

28 Cal.4th 876, 884.) “On the question of prejudice, defendant 

must show that it is reasonably probable he would not have 

pleaded guilty or nolo contendere if properly advised.” (Ibid.) 

Section 1016.5 requires that a defendant be “specifically 

advised of all three separate immigration consequences of his 

plea”—deportation, exclusion from admission, and denial of 

naturalization. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 

174 (Gutierrez).) Amirian’s challenge pertains to the second

consequence regarding exclusion from admission to the United

States. He alleges the trial court’s advisement materially 

differed from section 1016.5 by stating: “If you’re not a citizen, 

you would be deported, be denied re-entry if you leave the 

country, denied naturalization.” Specifically, Amirian alleges he 

was prejudiced by the court’s omission of the phrase “exclusion

from admission,” which is a term of art within the federal 

Immigration and Nationality Act (8 U.S.C. § 1101 et seq.) and not 

equivalent to a “deni[al of] re-entry,” rendering his plea legally 

invalid under section 1473.7. We disagree.

The court’s advisement substantially complied with section 

1016.5. Under similar circumstances, the defendant in Gutierrez 

was advised he would be “ ‘denied re-entry’ ” as a result of his 

plea. (Gutierrez, supra, 106 Cal.App.4th at p. 171.) Gutierrez

concluded that “substantial, not literal, compliance with section 
25

1016.5 is sufficient” and “the phrase ‘denied re-entry’ is the legal 

equivalent of ‘exclusion of admission.’ ” (Id. at pp. 169, 174 & 

fn. 4; see also People v. Superior Court (Zamudio) (2000) 23 

Cal.4th 183, 207 [noting courts have held that “ ‘[t]he exact 

language of the advisement is not crucial’ ”].) Although Amirian 

characterizes the Gutierrez court’s latter conclusion as dicta, it 

was essential to the holding that the trial court had substantially 

complied with section 1016.5. 

Amirian also attempts to distinguish Gutierrez because of 

the Gutierrez trial court’s curative use of a written advisement 

form in accepting the plea. (See Gutierrez, supra, 106 

Cal.App.4th at pp. 174–175.) But Gutierrez considered the 

written advisement form as an additional ground for denying 

section 1016.5 relief, only after concluding that the trial court’s 

oral advisement substantially complied with the statute. (Ibid.) 

Thus, the written advisement form was not central to the court’s 

decision, nor is it mandated by the language of section 1016.5. 

(See § 1016.5, subd. (a) [advisement must be “on the record”]; 

People v. Ramirez (1999) 71 Cal.App.4th 519, 522 [“So long as the 

advisements are given, the language of the advisements appears 

in the record for appellate consideration of their adequacy, and 

the trial court satisfies itself that the defendant understood the 

advisements and had an opportunity to discuss the consequences 

with counsel, the legislative purpose of section 1016.5 is met.”].)

Finally, Amirian urges us to reject Gutierrez because 

“admission” is a term of art under the Immigration and 

Nationality Act and does not apply to all circumstances in which 

a permanent resident re-enters the United States. For example,

as Amirian explains, a permanent resident “shall not be regarded 

as seeking an admission into the United States for purposes of 
26

the immigration laws unless the alien . . . [¶] (ii) has been 

absent from the United States for a continuous period in excess of 

180 days.” (8 U.S.C. § 1101(a)(13)(C)(ii).) Without citation to 

authority, Amirian argues that “the use of the term denied reentry would reasonably cause a legally present alien resident to 

conclude that he or she was unable to ever leave the boundaries 

of the country for fear that any absence would bar his or her readmittance to the United States.”

However, the Immigration and Nationality Act defines 

“admission” as “the lawful entry of [an] alien into the United 

States after inspection and authorization by an immigration 

officer.” (8 U.S.C. § 1101(a)(13)(A).) By definition, “admission” 

and “entry” are virtually synonymous. Moreover, section 1016.5 

does not require the trial court to advise the defendant of any 

“additional immigration consequences” beyond the three major 

consequences set forth in the statute. (See People v. Arendtsz

(2016) 247 Cal.App.4th 613, 618–619 [“[n]othing in section 1016.5 

requires more than advisement of the three major consequences 

of a plea that are specified in subdivision (a)”].) The trial court 

substantially complied with section 1016.5 by putting Amirian on 

sufficient notice of the three major immigration consequences of 

his plea.12

12 Courts have employed the same standards for analyzing 

prejudice in reviewing section 1016.5 and section 1473.7 motions. 

(See Martinez, supra, 57 Cal.4th at p. 559; Camacho, supra, 

32 Cal.App.5th at p. 1010.) Amirian cannot establish that he 

would not have entered his plea even if he had been advised with 

the exact language of section 1016.5, for reasons we have already 

discussed pertaining to his section 1473.7 motion.
27

IV. DISPOSITION

The order of the trial court is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.