Filed 9/1/26 P. v. Higuera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
THE PEOPLE, F090277
Plaintiff and Respondent, (Super. Ct. No. SC060950A)
v.
FERNANDO DUARTE HIGUERA, OPINION Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Andrew Kendall, Judge.
Sanger, Hanley, Sanger & Avila and Sarah S. Sanger, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench, Jessica A. Eros and Brittany M. Gunter, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Meehan, J. and DeSantos, J.
INTRODUCTION
In 1995, appellant and defendant Fernando Duarte Higuera, a lawful permanent resident of the United States with no criminal record, entered a no contest West plea1 to one count of committing a lewd or lascivious act on a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)2 In 2025, after defendant learned from an immigration attorney that his conviction bars him from becoming a United States citizen and mandates deportation, he retained an attorney to assist him in seeking postconviction relief. Through counsel, defendant filed a statutory motion to vacate his conviction due to prejudicial error affecting his ability to meaningfully understand the immigration consequences of his plea. (§ 1473.7, subd. (a)(1).)
At the evidentiary hearing on the motion, the superior court recognized the plea in this case was entered prior to the decision in Padilla and concluded defendant was not properly advised of the immigration consequences of his plea. (Padilla v. Kentucky (2010) 559 U.S. 356, 374 (Padilla) [6th Amend. requires counsel to advise client whether plea carries risk of deportation].) However, the court found no prejudicial error because it was not persuaded defendant would have acted differently had he been properly advised of the immigration consequences. (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)
Defendant timely appealed. He claims that he has met his burden of demonstrating prejudicial error under the totality of the circumstances, entitling him to relief from his conviction. (Espinoza, supra, 14 Cal.5th at pp. 320–321.) He requests
1 A plea under People v. West (1970) 3 Cal.3d 595, 600–601 (West) “allows a defendant to plead guilty to a charge without admitting that he or she committed the crime alleged.” (People v. Riddles (2017) 9 Cal.App.5th 1248, 1250, fn. 1; accord, In re Alvernaz (1992) 2 Cal.4th 924, 932 [no admission to factual basis].) The parties stipulated that the preliminary hearing transcript provided a factual basis for the plea. 2 All further statutory references are to the Penal Code.
this court vacate the superior court’s order denying his motion and remand this matter with instructions to the superior court to grant the motion.
The People dispute any entitlement to relief. They argue defendant fails to show “he did not meaningfully understand the immigration consequences of his plea” (Espinoza, supra, 14 Cal.5th at p. 319), and, if it is assumed he met the first prong of the inquiry, he fails to “show that his misunderstanding constituted prejudicial error” (ibid.).
We have independently reviewed the record and conclude defendant has demonstrated entitlement to relief. (Espinoza, supra, 14 Cal.5th at pp. 319–321; People v. Vivar (2021) 11 Cal.5th 510, 527–528 (Vivar).)3 The superior court’s order denying defendant’s section 1473.7 motion is vacated and this matter is remanded with instructions to the court to grant the motion following the issuance of the remittitur. To expedite proceedings, the parties may stipulate to the immediate issuance of the remittitur. (People v. Carrillo (2024) 101 Cal.App.5th 1, 33, fn. 10 (Carrillo).)
DISCUSSION
I. Legal Principles 1. Section 1473.7, Subdivision (a)(1) In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. (Vivar, supra, 11 Cal.5th at pp. 522–523; Carrillo, supra, 101 Cal.App.5th at p. 12.) The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea. (Carrillo, supra, at p. 13, citing Stats. 2021, ch. 420, § 1 [eff. Jan. 1, 2022].) In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the
3 Although the decision is not yet final, our opinion is also consistent with the California Supreme Court’s recent decision in People v. Hernandez (2026) ___ Cal.5th ___, ___ [2026 Cal.Lexis 4212, *13–14].)
basis that “[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” (§ 1473.7, subd. (a).) Relief is not contingent upon establishing ineffective assistance of counsel. (Ibid.)
“A defendant must satisfy three statutory requirements to be eligible to seek relief from a ‘legally invalid’ conviction or sentence under section 1473.7, subdivision (a)(1).” (Carrillo, supra, 101 Cal.App.5th at p. 13.) The movant must show he is “no longer in criminal custody” (§ 1473.7, subd. (a)), and “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” (id., subd. (f)(1)). (Carrillo, supra, at p. 13.) The motion must also be timely.4 (Carrillo, supra, at p. 13.)
“To prevail under section 1473.7, a defendant must demonstrate that his conviction is ‘legally invalid due to prejudicial error damaging [his or her] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.’ (§ 1473.7, subd. (a)(1).) The defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error. ‘[P]rejudical error … means demonstrating a reasonable
4 Section 1473.7, subdivision (b), provides: “(1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody.
“(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:
“(A) The moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization.
“(B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.”
probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.’” (Espinoza, supra, 14 Cal.5th at p. 319, quoting Vivar, supra, 11 Cal.5th at p. 529.)
We evaluate prejudicial error under the totality of the circumstances. (Espinoza, supra, 14 Cal.5th at p. 320, citing Vivar, supra, 11 Cal.5th at p. 529.) “‘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 immigrationneutral negotiated disposition was possible.’” (Espinoza, supra, at p. 320, quoting Vivar, supra, at pp. 529–530.) “[T]he defendant’s probability of obtaining a more favorable outcome if he had rejected the plea [and] the difference between the bargained-for term and the likely term if he were convicted at trial” are also relevant. (Espinoza, supra, at p. 320, citing People v. Martinez (2013) 57 Cal.4th 555, 564 (Martinez).) “These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.” (Espinoza, supra, at p. 321.)
“A defendant must provide ‘“‘objective evidence’”’ to corroborate factual assertions. (Vivar, supra, 11 Cal.5th at p. 530.) Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.” (Espinoza, supra, 14 Cal.5th p. 321, citing & quoting Vivar, supra, at pp. 530–531 & Lee v. United States (2017) 582 U.S. 357, 358.)
2. Standard of Review On appeal, we “apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences.” (Espinoza, supra, 14 Cal.5th at p. 319, citing Vivar, supra, 11 Cal.5th at p. 527.) We exercise “‘“independent judgment to determine whether the facts satisfy the rule of law”’” (Espinoza, supra, at p. 320), and defer “to the trial court’s factual determinations if they are based on ‘“‘the credibility of witnesses the [superior court] heard and observed’”’” (ibid.). However, “when[, as in this case,] the trial court’s findings ‘derive entirely from written declarations and other documents,’ the trial court and the reviewing court ‘“are in the same position,”’ and no deference is owed.” (Ibid., quoting Vivar, supra, at p. 528.) II. Procedural Background Defendant was born in Mexico in 1959, but has lived in the United States since at least 1984, and he is a lawful permanent resident.5 In November 1994, defendant was arrested after his sister-in-law reported to law enforcement that he touched his 12-yearold niece inappropriately the day before. Defendant allegedly stopped his vehicle while driving his niece home, hugged her, kissed and sucked on her ear lobe, and touched her breast over her clothing two or three times. Defendant’s niece reportedly confirmed the allegations to investigating deputies, and defendant reportedly admitted the allegations to them, but stated he touched his niece’s breast several months earlier and in November, he only hugged and kissed her.
That month, defendant was charged by complaint with two counts of committing a lewd or lascivious act on a child under the age of 14 years, based on the November 1994 incident and an incident alleged to have occurred between July and October 1994. (§ 288, subd. (a).) In January 1995, the prosecution filed an information charging defendant with one count of violating section 288, subdivision (a), based on the November 1994 incident.
In March 1995, during jury selection, defendant withdrew his not guilty plea and, pursuant to West, entered a no contest plea to one count of committing a lewd or lascivious act on a child under the age of 14 years. (§ 288, subd. (a).) In accepting the
5 In his declaration, defendant attests he has lived in this country since 1984. The probation report, prepared in 1995, reflects he arrived in 1980 and includes an employment history from 1981 to 1995. This discrepancy is not material to resolution of defendant’s claim.
plea, the trial court advised defendant the sentencing range was three, six, or eight years in prison, probation was possible, and it was a registerable offense under section 290. The court also advised defendant, in accordance with section 1016.5, “[I]f you are not a citizen of the United States, an entry of this no contest plea would have the effect of deportation, exclusion from admission and denial of naturalization pursuant to the laws of the United States. Do you understand that, sir?” Defendant responded, “yes.”
In May 1995, following a report on defendant’s mental condition under section 288.1 indicating he was not a threat to society or the victim, and he was amenable to counseling, defendant was sentenced to formal probation for a period of five years, with one year in jail.
In August 2022, the superior court granted defendant’s petition for termination from the sex offender registry under section 290.5.
In February 2025, after defendant consulted with an immigration attorney about becoming a United States citizen, he learned his conviction barred citizenship and mandated deportation. Defendant was referred to another attorney, Richard R. Rivera, who determined defendant’s conviction was both a crime of moral turpitude and an aggravated felony, rendering him deportable. In May 2025, pursuant to section 1473.7, subdivision (a)(1), defendant filed a motion seeking to vacate the judgment based on prejudicial error affecting his ability to understand the immigration consequences of his plea. The motion is supported by defendant’s declaration, Mr. Rivera’s declaration, a transcript from the 1995 plea hearing, the superior court’s 2022 order terminating his sex offender registration requirement, an employment verification letter covering a period of almost 11 years, and 16 character reference letters.6
6 Defendant was employed between January 2014 and November 2024 as a full-time commercial driver.
The prosecution opposed the motion, but did not submit any supporting evidence other than the 1995 plea transcript.
Defendant filed a reply and, in July 2025, the superior court held a hearing on the motion. The parties did not offer testimony or other additional evidence. The court recognized the plea was entered prior to the United States Supreme Court’s seminal decision in Padilla and found that defendant was not adequately advised of the immigration consequences, although the court equivocated on whether defendant was entirely uninformed given the section 1016.5 advisement. The court was not persuaded that defendant would have been offered an immigration-safe plea given the charge he faced or that he would have acted any differently had he been accurately advised of the immigration consequences. Therefore, the court found defendant did not suffer prejudice from the error and denied the motion.
Defendant timely appealed. He argues his motion was timely, a consequence of his conviction is mandatory removal from the United States, he was not properly advised of the immigration consequences of his plea, and the error was prejudicial. The People do not dispute that defendant is eligible to seek relief under section 1473.7, subdivision (a)(1).7 (Carrillo, supra, 101 Cal.App.5th at p. 13.) They contend that given the superior court’s admonition on immigration consequences, defendant fails to show, by a preponderance of the evidence, that he misunderstood the consequences of his plea and, in any event, he fails to demonstrate he suffered prejudice.
7 Defendant submits evidence, via declaration, that section 288, subdivision (a), is a crime of moral turpitude as well as an aggravated felony. We observe that section 288, subdivision (a), was categorized as an aggravated felony when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub.L. No. 104–208 (Sept. 30, 1996) 110 Stat. 3009) (IIRIRA), postplea. (United States v. Baron-Medina (9th Cir., 1999) 187 F.3d 1144, 1146–1147 [§ 288, subd. (a), conviction qualifies as sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), defining aggravated felonies]; Aragon-Ayon v. I.N.S. (9th Cir., 2000) 206 F.3d 847, 852–853 [aggravated felony definition applies to convictions entered before effective date of IIRIRA].) However, the People do not dispute that defendant’s crime was one of moral turpitude. (Carrillo, supra, 101 Cal.App.5th at p. 15.)
III. Analysis A. Meaningful Understanding of Immigration Consequences Although the superior court expressed some skepticism given the section 1016.5 advisement, it accepted defendant’s argument that he was not adequately advised of the immigration consequences given his pre-Padilla plea. The People, however, dispute that defendant meets his burden at the first step. They rely on the court’s statutory advisement, their characterization of his motion as supported by nothing more than his self-serving declaration, and the decision in Abdelsalam. (People v. Abdelsalam (2022) 73 Cal.App.5th 654 (Abdelsalam).)
“The focus of this inquiry is the defendant’s own error.” (Carrillo, supra, 101 Cal.App.5th at p. 16, citing People v. Mejia (2019) 36 Cal.App.5th 859, 871.) Thus, “the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.” (Carrillo, supra, at p. 16, italics added, citing Mejia, supra, at p. 871 & People v. Alatorre (2021) 70 Cal.App.5th 747, 769 (Alatorre).) Defendant “is the only one with direct access to his state of mind” (Carrillo, supra, at p. 17), but “[a] defendant’s assertion as to his or her state of mind is not accepted at face value by courts evaluating a section 1473.7 motion. Such assertions must be corroborated with objective evidence.” (Ibid.)
Defendant attests that his attorney, identified in the plea transcript as George A.
Boyle, was unable to reach a resolution with the prosecutor, the matter was set for trial, and on day two of trial, his attorney informed him he could plead no contest in exchange for a chance at probation and jail time rather than prison time. Defendant attests his attorney never discussed citizenship or immigration consequences with him and never warned him that pleading to the charge would subject him to mandatory deportation. There is no other evidence in the record concerning what Mr. Boyle did or did not discuss with defendant, and defendant’s postconviction relief counsel, Mr. Rivera, attested that file material from Mr. Boyle is not available. Defendant may not be faulted for the absence of this information, but this is particularly so where, as here, trial counsel is deceased.8 (See Espinoza, supra, 14 Cal.5th at p. 325 [“[a] party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel”]; accord, People v. Padron (2025) 109 Cal.App.5th 950, 962 (Padron).)
During the change of plea, the superior court admonished defendant that his plea would have immigration consequences if he was not a citizen, in accordance with section 1016.5, and at the end of the entire plea colloquy, the court asked if defendant had enough time to discuss the plea and its consequences with Mr. Boyle. Defendant responded, “Yes.” The court did not specifically ask at that juncture if defendant, who was relying on a Spanish interpreter, had discussed the immigration consequences with Mr. Boyle, and the court did not ask Mr. Boyle if his client understood the immigration consequences. This is understandable given the pre-Padilla posture of the proceeding, but, regardless, “depending on the surrounding circumstances, even a trial court’s warning that deportation ‘“will result”’ is not a categorical bar to relief.” (People v. Lopez (2021) 66 Cal.App.5th 561, 577 (Lopez), quoting People v. Camacho (2019) 32 Cal.App.5th 998, 1011, fn. 8 (Camacho); accord, People v. Curiel (2023) 92 Cal.App.5th 1160, 1175.)
In the context of section 1018, which permits a defendant to move to withdraw his or her plea, the California Supreme Court concluded that “the standard [section 1016.5] advisement—given to all criminal defendants in California who plead guilty to any offense other than an infraction—that his or her criminal conviction ‘may’ have adverse immigration consequences” does not bar a defendant from seeking relief from his plea on
8 We take judicial notice of the fact that there is only one match for “George A. Boyle” on the State Bar of California’s official website. The website reflects that George Arthur Boyle was admitted to practice law in 1970, his address of record was in Bakersfield, and he is deceased. (<https://apps.calbar.ca.gov/attorney/LicenseeSearch/QuickSearch?FreeText= Boyle%2C%20George> [as of Sept. 1, 2026], archived at <https://perma.cc/E5WK-QYN9>; Evid. Code, §§ 452, subd. (h), 459; In re White (2004) 121 Cal.App.4th 1453, 1469, fn. 14 [taking judicial notice of State Bar records].)
grounds of mistake or ignorance based on immigration consequences. (People v. Patterson (2017) 2 Cal.5th 885, 889, 895 (Patterson); accord, Lopez, supra, 66 Cal.App.5th at p. 577.) “The advice and information defendants receive from their attorneys is critical, and the court’s ‘generic advisement’ is not a substitute for that advice. [Citation.] ‘“In evaluating the court’s [warning], ‘[t]he defendant can be expected to rely on counsel’s independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial.’”’” (Lopez, supra, at p. 577, quoting Patterson, supra, at pp. 896–898.) Thus, the fact the superior court advised defendant pursuant to section 1016.5 does not resolve the matter against defendant. (Espinoza, supra, 14 Cal.5th at p. 320; Padron, supra, 109 Cal.App.5th at p. 962; Lopez, supra, at p. 578.)
Critically, as this court recognized in Carrillo, prior to Padilla, “there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. (See Chaidez v. United States (2013) 568 U.S. 342, 353.) Rather, most courts had determined that no such duty existed.” (Carrillo, supra, 101 Cal.App.5th at p. 17, citing Chaidez, supra, at p. 353.) Here, defendant entered his plea 15 years before the United States Supreme Court held in Padilla “‘that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases.’” (Carrillo, supra, at p. 18, quoting § 1016.2, subd. (a) [codifying Padilla & related state law, eff. Jan. 1, 2016] & citing People v. Rodriguez (2021) 68 Cal.App.5th 301, 307–312.) As such, defendant’s attestation that Mr. Boyle did not advise him about the immigration consequences of his plea is consistent with the state of the law at that time. (Carrillo, supra, at pp. 17–18.)
Additional circumstances lend credence to defendant’s statements. “Both the United States and California Supreme Courts have recognized that federal immigration law can be complex and there are numerous situations where the consequences of a conviction are unclear. (Padilla, supra, 559 U.S. at p. 369; People v. Patterson (2017) 2 Cal.5th 885, 898.) Thus, one court referred to the ‘bewildering interplay between state criminal proceedings and federal immigration enforcement—an area of the law that has “aptly been called a labyrinth that only a lawyer could navigate.”’” (Carrillo, supra, 101 Cal.App.5th at p. 18, quoting Alatorre, supra, 70 Cal.App.5th at p. 765.)9 Defendant relied on a Spanish interpreter, as previously stated; the record reflects he had a fifth grade education; and he had no prior criminal record, suggesting inexperience with the criminal justice system. (Carrillo, supra, at p. 18.) These circumstances, coupled with the absence of any existing legal duty on Mr. Boyle’s part to advise him, support defendant’s statements that he was unaware of the immigration consequences.
The People cite Abdelsalam for additional support, but we find that case is readily distinguishable. (Abdelsalam, supra, 73 Cal.App.5th at p. 658.) The defendant in Abdelsalam came to the United States in 2017 on a fiancé visa. (Ibid.) After discovering he intended to obtain citizenship through marriage and then divorce her, his fiancée broke up with him and reported him to immigration authorities via a tip line. (Ibid.) He was subsequently charged with five crimes he committed against his fiancée after she confronted him and obtained a restraining order. (Id. at pp. 658–659.) At his preliminary hearing, she testified she reported his attempted fraud to Immigration and Customs Enforcement (ICE), she asked ICE to deport him, and she met with two ICE agents who were interested in detaining him. (Id. at p. 659.) In addition, two ICE agents were in the courtroom during the preliminary hearing. (Id. at p. 664, fn. 2.) Defendant entered a no contest plea to one count of making criminal threats and was sentenced to probation and 364 days in jail. (Ibid.) He was then detained by ICE and deportation proceedings were initiated. (Ibid.)
9 The People do not dispute that the law was complex. (Carrillo, supra, 101 Cal.App.5th at p. 18.)
Thereafter, the defendant moved to set aside his plea under section 1473.7.
(Abdelsalam, supra, 73 Cal.App.5th at p 660.) The appellate court found no error and, assuming error, no prejudice. (Id. at p. 665.) The defendant had just entered the country on a fraudulent ground; during the plea colloquy, he was advised orally and in writing that he would be deported; the defendant stated he understood and would “‘wait for immigration’” (id. at p. 658), which made sense in the context of a jail sentence followed by deportation proceedings; and his counsel stated on the record that she explained the immigration consequences to him. (Id. at pp. 663–665.) The appellate court found no support for his contention that he did not meaningfully understand the immigration consequences under the circumstances (id. at p. 665), and stated, “At its core, this case comes down to answering the question: Can a defendant be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported? Our answer under the facts of this case is ‘no’” (id. at p. 666).
Here, in contrast to Abdelsalam, there is no evidence in the record undermining defendant’s claim of ignorance except for the section 1016.5 advisement, which, as previously explained, is not dispositive because the advisement “does not replace the case-specific advice of counsel.” (Padron, supra, 109 Cal.App.5th at p. 962; accord, Espinoza, supra, 14 Cal.5th at p. 320.) Defendant’s statements are supported by the fact his plea was entered prior to Padilla’s determination that defense counsel has a constitutional obligation to advise on immigration consequences, and by evidence that he relied on an interpreter, had a fifth grade education, and had no prior criminal record. (Carrillo, supra, 101 Cal.App.5th at p. 18.)
Additionally, the record reflects that defendant was a lawful permanent resident who had been in this country for at least 10 years at the time of his plea, he was married to a citizen with whom he had a child, and he was gainfully employed. In the years that followed his plea, defendant continued to work until he retired, he became a grandfather, he was active in his community church, and 30 years after his conviction, he sought the assistance of an immigration attorney to become a citizen. These are not the hallmarks of an individual “living in hiding” with the knowledge that he faced immigration consequences as a result of his conviction.10 (Espinoza, supra, 14 Cal.5th at p. 320; see Camacho, supra, 32 Cal.App.5th at p. 1009 [the defendant learned of the immigration consequences after conviction was expunged and reduced to a misdemeanor, and he met with “an immigration attorney to apply for a permanent resident visa on the basis of his marriage”].) The prosecutor did not offer any evidence at the hearing in the superior court and, on review, the People point to no record evidence that supports their position, instead resting on the argument that defendant’s statements are self-serving and he was given an advisement under section 1016.5. (See Carrillo, supra, 101 Cal.App.5th at p. 18.) We find reliance on those two points unpersuasive for the reasons stated and conclude, as did the superior court, that defendant met his burden of showing, by a preponderance of the evidence, that he did not meaningfully understand the immigration consequences of the plea he entered in 1995. Therefore, we turn to the issue of prejudice.
10 Notwithstanding the People’s contrary contention during oral argument, the absence of evidence in the record that defendant attempted to travel does not support a reasonable inference that he was avoiding immigration authorities, thereby suggesting he was aware of the immigration consequences of his plea. While evidence that a defendant has voluntarily presented himself or herself to authorities may indicate a lack of awareness of adverse immigration consequences (Espinoza, supra, 14 Cal.5th at p. 320; Alatorre, supra, 70 Cal.App.5th at p. 770), inferring knowledge of adverse immigration consequences based on nothing more than the absence of travel evidence is purely speculative. “‘“[A] reasonable inference … ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’”’” (People v. Ware (2022) 14 Cal.5th 151, 167.) Rather, the inference “‘must logically flow from other facts established in the action .…’” (Id. at p. 168; see Evid. Code, § 600.)
B. Prejudicial Error As previously stated, “the defendant must demonstrate ‘a reasonable probability that [he or she] would have rejected the plea if [he or she] had correctly understood its actual or potential immigration consequences’” (Carrillo, supra, 101 Cal.App.5th at p. 19, quoting Vivar, supra, 11 Cal.5th at p. 529 & citing Espinoza, supra, 14 Cal.5th at p. 316), and prejudice is assessed by considering the totality of the circumstances (Carrillo, supra, at p. 19). “A defendant’s decision to reject a plea leaves him or her with two options—go to trial or negotiate a plea with no immigration consequences.” (Ibid.) However, a defendant is “not required to show the decision to reject the plea would have led to a more favorable result.” (Id. at p. 20, italics added.)
In support of their argument that defendant fails to demonstrate prejudice, the People contend defense counsel is presumed competent, no evidence establishes immigration consequences were a primary concern to defendant, his claim that an alternative immigration-safe plea was available is pure speculation, and the charged offense was very serious and the prosecution’s case strong. They also cite to DeJesus for support. (People v. DeJesus (2019) 37 Cal.App.5th 1124 (DeJesus).) We are unpersuaded by their arguments.
The more developed the record, the more likely it is that there will be evidence either undermining or bolstering the defendant’s claim of prejudicial error. Here, however, for purposes of assessing prejudice, it is particularly material that the proceedings occurred long before Padilla, which “announced a ‘new rule.’” (Chaidez v. United States (2013) 568 U.S. 342, 353–354 (Chaidez).) Therefore, the presumption of counsel’s competency on the issue of an immigration-consequences advisement does not assist the People. (People v. Barrett (2012) 54 Cal.4th 1081, 1105 [“[c]ounsel is presumed competent and informed as to applicable constitutional and statutory law” (italics added)]; see People v. Perez (2020) 9 Cal.5th 1, 8 [“‘[t]he circumstance that some attorneys may have had the foresight to raise th[e] issue does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated the high court’s decision’”]; In re Grinder (2025) 114 Cal.App.5th 845, 872 [“as a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel”].) Inasmuch as trial counsel did not have a recognized duty to advise defendant on immigration matters, and we have already determined that defendant was not adequately advised of the consequences, it is not surprising the record is silent concerning the importance defendant placed on avoiding deportation. Consistent with the law at that time, there is simply no indication that immigration consequences were considered, beyond the court’s general statutory admonition. (Chaidez, supra, at p. 354 [“Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been—in fact, was not—‘apparent to all reasonable jurists’ prior to our decision”].)
Where the record is devoid of any indication that immigration consequences were a consideration, years before the law recognized the duty of counsel to advise his or her client on the matter, a defendant may demonstrate ties to the United States sufficiently strong to support a reasonable inference that immigration consequences would have mattered, had the defendant been aware. (Espinoza, supra, 14 Cal.5th at p. 325 [ties to this country, along with those to family and community, “support the conclusion that immigration concerns would have been paramount to [the defendant] at the time of his plea”]; accord, People v. Avena (2026) 119 Cal.App.5th 624, 636; People v. Benitez- Torres (2025) 112 Cal.App.5th 1252, 1269.) The People do not dispute defendant’s strong ties or that he built a life here. As discussed, he has lived in this country since at least 1985 and is a lawful permanent resident. At the time of his plea, he was married, had one child, was employed, and had assets, including a house. His declaration states his wife, son, and grandson are all citizens, and he submitted evidence of community involvement in his church and of an 11-year employment with the same company preceding his retirement. Although the People assert that defendant was sending money to his parents in Mexico at the time of his plea and he had a nephew in Mexico, they do not dispute the evidence that his primary ties were and are to this country.
Defendant was charged with one count of violating section 288, subdivision (a), which exposed him to a potential prison sentence of three, six, or eight years, and he rejected a plea offer of two years in prison, although the record on appeal does not reveal the specifics of that offer, including on what offense the offer was based.11 Rejection of the offer suggests defendant was motivated to avoid serving a prison sentence, and his declaration attesting to his decision to enter a plea in exchange for the possibility of probation and a jail term supports that view. Given that defendant was not adequately advised of the immigration consequences, however, the import of his desire to avoid prison time should not be overstated.
We also disagree with the People’s position that defendant’s claim of an immigration-safe disposition is purely speculative. Defendant submitted evidence, in the form of Mr. Rivera’s declaration, of the potential for an alternative plea that would have been safe from immigration consequences. (Espinoza, supra, 14 Cal.5th at p. 321.) In his declaration, Mr. Rivera attests that a plea to section 237, false imprisonment, for a sentence of 364 days or less with the same probation terms as imposed was an immigration-safe disposition in 1995 and remains an immigration-safe disposition. He also attests that the facts as set forth in the probation report provide a factual basis for a plea to violating section 237. The People do not dispute this.
At the hearing, the prosecutor agreed the facts could fit a false imprisonment charge but argued he could not “foresee a situation where a prosecutor would have taken that.” The superior court questioned him about the fact that the victim was defendant’s niece and the general reluctance of some victims to testify. The prosecutor
11 In ruling on defendant’s motion, the superior court described the two-year offer as the low term, but the low term for violating section 288, subdivision (a), was three years in 1995 and remains three years.
acknowledged such situations do occur and could result in consideration of dispositions not usually considered. Given the length of time that had passed, he could not specifically speak to office policies from the 1990’s, but he stated that in his 10 years of experience, once a case is assigned out for trial, there are no further plea negotiations. However, the prosecutor did not submit any evidence at the hearing, and the record does not reveal what the prosecutor assigned in 1995 may or may not have been willing to negotiate over. (In re Zeth S. (2003) 31 Cal.4th 396, 413–414, fn. 11 [“unsworn statements of counsel are not evidence”]; accord, People v. Holliday (2025) 116 Cal.App.5th 664, 674.) Moreover, defendant is not required to prove the prosecutor would have accepted an immigration-safe disposition. (Espinoza, supra, 14 Cal.5th at pp. 324–325; accord, Padron, supra, 109 Cal.App.5th at p. 964; People v. Manzanilla (2022) 80 Cal.App.5th 891, 908.) Rather, the “inquiry is informed by whether the defendant would have had reason ‘to expect or hope’ that a plea deal without immigration consequences ‘would or could have been negotiated [citation].’” (Espinoza, supra, at p. 324, quoting Martinez, supra, 57 Cal.4th at p. 567.)
Weighing in favor of the possibility of a more favorable resolution are the facts that defendant did not have a prior criminal record; and his conduct, which we do not seek to excuse or minimize, was nevertheless objectively less egregious, factually, than in many cases resulting in a charge under section 288.12 Additionally, it is unclear whether his niece, who was the only eyewitness to the crime, would have been cooperative, as the record reflects there was no response to the probation department’s attempts to contact the victim’s mother. Further, based on the section 288.1 evaluation and “that the circumstances of the offense [were] substantially less serious than the circumstances
12 Section 288 proscribes “a wide range of conduct[, including] that [which] would not be immediately recognizable as ‘sexual’ except when considered from the defendant’s perspective, and in light of his or her intent.” (People v. Levesque (1995) 35 Cal.App.4th 530, 541; accord, In re Rodriguez (1975) 14 Cal.3d 639, 647 [“section 288 encompasses a wide range of culpable behavior”].)
typically present in [section] 288[, subdivision ](a) cases,” the probation department was of the opinion that probation should not be ruled out and one year in jail would be justified. The superior court thereafter imposed probation and a jail term. Under these circumstances, we cannot agree with the People that there is no evidence supporting the possibility of a more favorable resolution for defendant, had he been adequately advised of the immigration consequences in pleading no contest to violating section 288, subdivision (a).
Finally, the People’s reliance on DeJesus is misplaced. (DeJesus, supra, 37 Cal.App.5th 1124.) In that case, which involved a crime committed post-Padilla, the defendant conceded his attorney advised him of the immigration consequences of his plea (DeJesus, supra, at p. 1128), but he claimed counsel was ineffective because “counsel refused to try his case to a jury, [and] failed to review a video of the incident or to investigate an ‘immigration safe plea’” (id. at p. 1132). The appellate court concluded that the defendant was not eligible to seek relief under section 1473.7 because he was on parole (DeJesus, supra, at pp. 1131–1132), but also found he did not meet his burden of demonstrating error or prejudice (id. at pp. 1132–1137). As to error, the court found the defendant failed to offer any evidence that trial counsel refused to try the case; his own declaration evidenced his concern was the weakness of the evidence against him and his belief he was not guilty; he failed to offer any evidence that the case was weak or that his attorney failed to review the video footage of the crime; and he failed to offer any evidence that counsel failed to investigate or negotiate an immigration neutral disposition. (Ibid.) The court concluded, “DeJesus’s wish to reject the plea was not based upon his deportability, but upon his belief that he was not guilty. At the evidentiary hearing, his postconviction attorney confirmed that DeJesus was advised of the immigration consequences of his plea to assault and that his motion was based upon deficient performance by the trial attorney, not misadvice. Thus, DeJesus fails to offer ‘contemporaneous evidence’ that he would have refused to enter the plea if he had known it would render him deportable.” (Id. at p. 1137.)
Here, as discussed, trial counsel’s duty to advise his client on immigration matters was years away from being established by Padilla (see Chaidez, supra, 568 U.S. at pp. 353–354), and nothing in the record undermines defendant’s declaration statements that he was not advised and “‘did not meaningfully understand the immigration consequences of his [plea]’” (Carrillo, supra, 101 Cal.App.5th at p. 14, quoting Espinoza, supra, 14 Cal.5th at p. 319). Defendant had deep, longstanding ties to this country; he had no criminal record; and neither defendant’s declaration nor the record undermines his contention that he would have gone to trial or asked his attorney to negotiate a different plea agreement if he had known of the deportation consequences. (Espinoza, supra, at p. 325.) Finally, defendant sought the assistance of an immigration attorney and supported his motion with a declaration from Mr. Rivera, who addressed the availability of an immigration-safe disposition that fits the facts of the case. The facts that counsel had no duty of advisement at the time of the plea, that the record does not undermine defendant’s statements, and that defendant offered evidence of an immigration-safe disposition through counsel are material to the inquiry and readily distinguish this case from DeJesus.
Accordingly, for the reasons discussed herein, we conclude that based on the totality of the circumstances, defendant has shown, by a preponderance of the evidence, a “‘reasonable probability that [he] would have rejected the plea if [he] had correctly understood its actual or potential immigration consequences.’” (Espinoza, supra, 14 Cal.5th at p. 319, quoting Vivar, supra, 11 Cal.5th at p. 529.) Accordingly, we shall vacate the superior court’s order denying his motion under section 1473.7, subdivision (a), and remand the matter with directions to the court to grant the motion.
DISPOSITION
The order denying defendant’s section 1473.7, subdivision (a)(1), motion is vacated, and this matter is remanded to the superior court with instructions to grant the motion, vacate defendant’s conviction, and set the matter for further proceedings.