Filed 6/15/21 P. v. Salas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075277
v. (Super.Ct.No. FVA1100791)
MISAEL MADRIGAL SALAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bridgid M.
McCann, Judge. Reversed.
Quadros & Cuellar, Micheli Quadros and Sarah Cuellar for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.
Gutierrez and Marvin E. Mizell Deputy Attorneys General, for Plaintiff and Respondent.
In 2012, defendant and appellant Misael Madrigal Salas, a Mexican citizen, pled
no contest to two misdemeanor counts of indecent exposure and one felony count of false
1 impersonation of another. Defendant voluntarily left the United States in April 2012 after
immigration proceedings were instituted against him based on his indecent exposure
convictions. In 2019, defendant filed a motion to set aside his conviction pursuant to
Penal Code section 1473.71 (motion) and additionally relied on section 1016.5. He
submitted his own declarations attesting that he would not have entered a guilty plea if he
was informed by his counsel, and the court, of the immigration consequences at the time
he entered into the plea. The trial court denied the motion without a hearing. The trial
court excluded defendant’s declarations based on defendant not being available for cross-
examination (he lived in Tijuana); denied any further continuance for defendant to set up
a video conference to make him available for cross-examination; and refused to consider
the motion under section 1016.5.
Defendant appeals, contending (1) he was not afforded a hearing on the merits of
the motion pursuant to sections 1016 and 1473.7; (2) the trial court failed to hear and
make a ruling on the additional ground raised in the motion that he was entitled to relief
under section 1016.5;; (3) the trial court should have granted the motion because the
record supports that the trial court never gave him immigration warnings, which is
grounds for the court to grant the motion pursuant to section 1016.5; (4) the trial court
erred by finding that his declaration and his wife’s declaration submitted in support of the
motion were inadmissible hearsay; and (5) once the declarations are considered, the
motion should be granted by this court.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 FACTUAL AND PROCEDURAL HISTORY
A. SUMMARY OF FACTS
Defendant pled guilty and no appeal was taken from the entry of his plea. As
such, the only facts are those from the police report. On May 26, 2011, in Fontana,
defendant exposed his genitals and masturbated in front of two females he did not know,
at two separate locations. Defendant was arrested and found in possession of a false
social security card and a false permanent resident card.
B. PLEA AND SENTENCE
Defendant was charged in a felony complaint in count 1 with “use of false
documents” (all caps. omitted) (§ 114) and in counts 2 and 3 with misdemeanor indecent
exposure (§ 314, subd. (1)). Defendant entered into a plea agreement, which provided
that count 1 would be dismissed, defendant would admit to the misdemeanor indecent
exposure in counts 2 and 3, and the information would be amended to add a charge of
false impersonation of another (§ 529) in count 4, which he would admit. Defendant was
advised in the plea agreement that the possible state prison sentence for a violation of
section 529 was 16 to 23 months but the district attorney had agreed to a 16-month
sentence with credit for time served. Defendant would serve no additional prison or jail
time.
Defendant initialed the following language that appeared on the plea agreement:
“I understand that if I am not a citizen of the United States, deportation, exclusion from
admission to the United States, or denial of naturalization will result from a conviction of
the offense(s) to which I plead guilty/no contest.” Defendant signed the plea agreement
3 on March 9, 2012. Included was a certificate of the interpreter who declared, under
penalty of perjury, that the entire contents of the plea agreement were translated from
English to Spanish directly to defendant and that defendant signed the plea agreement.
Defendant’s counsel, San Bernardino County Deputy Public Defender Maria Lacorte,
attested on the plea agreement that she “personally read and explained the contents of the
above Declaration to the Defendant” and observed defendant sign the Declaration.
The minute order states “The Court, after readvisement of each of these rights,
finds that the Defendant understands the charge(s), the possible penalties, right against
self-incrimination, to confront and cross[-]examine witnesses, to a public and speedy
trial, to Jury trial, to have an attorney present at all stages of the proceedings and to the
Public Defender if indigent and to the compulsory process of the court to subpoena
witnesses.” The reporter’s transcript from the plea agreement proceedings was not made
part of the record. Defendant was sentenced to state prison on count 4 to the low term of
16 months. He was to serve 180 days in county jail on counts 2 and 3. He was given
credit for time served and did not have to serve any additional time.
C. MOTION
On August 29, 2019, seven years after defendant entered his guilty plea, defendant
filed his motion, which was entitled “Notice of Motion and Motion to Vacate Conviction
and Set Aside Guilty Plea Pursuant to California Penal Code § 1473.7.” (All caps.
omitted.) Defendant’s counsel noted that defendant would be absent from the
proceedings because he lived in Mexico and was not eligible to enter the United States.
Defendant’s counsel provided in the body of the motion that it was brought under
4 sections 1016, 1473.7 and 1385 on the grounds that defendant’s former counsel, Lacorte,
and the deputy district attorney did not fulfill their duty under section 1016, defendant
was not aware that he would be deported and he was entitled to have his plea vacated in
the interests of justice. Further, defendant’s trial attorney did not make an effort to
negotiate an immigration-safe plea. Defendant was unaware that his guilty plea would
have “profound immigration consequences.” Defendant pleaded guilty but was not aware
of the actual deportation consequences. Defendant’s counsel alleged that defendant
would not have pleaded guilty if he had known that deportation proceedings would be
brought against him causing him to agree to voluntary depart the United States.
Defendant’s counsel contended that Lacorte was ineffective. Lacorte never
discussed with defendant the immigration consequences of the plea bargain. Further, she
did not seek an alternative disposition that would not have immigration consequences.
Lacorte had to provide an unequivocal warning to defendant that he would probably be
deported. Defendant’s counsel also argued that the prosecution failed to properly
consider the immigration consequences when negotiating the plea as required pursuant to
section 1016.3.2
Defendant’s counsel argued that defendant was prejudiced by Lacorte’s
performance as he was left with no alternative but to leave the United States. His crime
made him deportable. Defendant would have rejected the plea even though he would be
required to serve more jail time. Defendant’s counsel finally argued that the trial court
2 Section 1016.3 was effective January 1, 2016. (Stats. 2015, c. 705 (AB 1343) § 2, eff. Jan. 1, 2016.) As such, it does not seem applicable to a plea negotiated in 2012.
5 had the power pursuant to section 1385 to dismiss defendant’s convictions in the interests
of justice.
In support of the motion, defendant provided his own declaration. He originally
entered the United States in 2004 in pursuit of a better life. He was unable to appear in
court on the motion due to his “inadmissibility” to enter the United States. He married
Nancy Vargas Plasencia in Mexico in November 2016. They had been dating since 2006.
She was a United States citizen. They had a daughter on August 14, 2017. He gave his
version of the events leading to his arrest and claimed that he was innocent. Defendant
admitted the documents in his possession at the time of his arrest were fake. He insisted
his time in jail was “unbearable as I was beat several times, emotionally and physically
abused.” Other inmates asked him to transport drugs for them when he went to court
appearances, and when he refused, they beat him up. None of his attorneys spoke
Spanish and they had to rely on an interpreter. Lacorte never told him that he was going
to be deported. “The interpreter told me that there could be immigration consequences.
She also said that it was the norm to tell immigrants that.” Lacorte never told him about
any alternative plea agreements.
Defendant claimed, “If I knew the certainties of immigration consequences I
would not have accepted the plea deal.” He accepted the plea bargain based on Lacorte
advising him that it was the best option for him. He would be willing to do more jail time
to avoid the immigration consequences. Defendant claimed that he lived in Tijuana due
to the criminal charges against him.
6 Other evidence attached to the motion included the felony complaint; police
reports; and the minute order from the plea deal, which is set forth ante. The reporter’s
transcript of the taking of defendant’s plea was not provided. Defendant admitted he was
born in Mexico.
Nancy Vargas Plascencia also provided a declaration. She was married to
defendant and they had a daughter. Defendant had to leave the United States because of
the criminal charges. While defendant was in jail, he was beaten and threatened. “Misael
tried to keep his plea of ‘not guilty.’ However, due to the circumstances he was
experiencing in jail, we felt that it was best that he accepted a plea so he could be
released and safe.” Plascencia and defendant had no knowledge when he accepted the
plea that he would be deported from the United States if he did not voluntarily leave. He
would have not accepted the plea if he had known. Plascencia had to take care of their
child by herself and had to send defendant money.
Defendant’s counsel also provided a declaration. She attested that she contacted
Lacorte on July 2, 2019. Lacorte provided her notes from the plea, which included,
“Client wants to plead guilty to less time. Understand he will be deported. Not a US
citizen.” Lacorte would not provide a declaration because she had no other recollection
of the case except what was in the notes. She did not respond to defendant’s counsel as
to whether she sought an alternative disposition with no immigration consequences.
Defendant’s counsel also provided information prepared by the Immigrant Legal
Resource Center on the immigration consequences for different crimes. Plascencia’s
father and mother provided declarations regarding how hard it was for Plascencia to raise
7 her daughter without defendant’s help. Also included with the motion were pictures of
defendant and his daughter.
D. OPPOSITION TO THE MOTION
The San Bernardino County District Attorney’s office filed opposition to the
motion on October 11, 2019. The People argued that the motion should be denied
because it was untimely, parts of the statute were unconstitutional as applied to this case,
defendant could not obtain relief unless he was subject to cross-examination, and he had
failed to show attorney error or prejudice.
The People noted that Lacorte represented defendant and that a Spanish interpreter
helped with the plea agreement. Defendant was facing five years for the section 114
charge in count 1 of the felony complaint and the plea agreement that was negotiated
dismissed this charge. Defendant was given credit for the time he served in jail and was
released from custody. The People noted that the written plea agreement contained a
provision notifying defendant of the possibility he would be deported and that he had
sufficient time to consult Lacorte regarding the meaning of the plea agreement.
Defendant acknowledged being assisted by an interpreter. Lacorte attested on the written
plea agreement that she explained the contents of the plea agreement.
The People objected to the consideration and admission of defendant’s declaration
unless he was subject to cross-examination. Although a hearing pursuant to section
1473.7 allows the hearing to proceed without defendant upon a finding of good cause, the
People were still entitled to due process pursuant to Article I, section 29 of the California
Constitution which provided for cross-examination. Further, information in defendant’s
8 declaration regarding his current family situation was irrelevant. The People objected on
the grounds of hearsay to Plascencia’s declaration. Further, the materials from the
Immigrant Legal Resource Center should be excluded. The declarations of Plascencia’s
parents should be excluded as irrelevant, they were not executed under penalty of perjury
and were hearsay.
The People also stated that it did not concede that sections 314 and 529 rendered
defendant deportable and excludable. Defendant had the burden of showing that he was
deportable and excludable due to the criminal charges in the case. He did not provided
the court with a notice to appear filed in federal court initiating the immigration
proceedings.
The People additionally argued that the motion was untimely. Defendant had not
shown reasonable diligence in filing the motion. Defendant must have filed the motion
within a reasonable time of discovering the immigration consequences. According to
defendant, he was aware of the immigration consequences in 2012 but waited until
September 2019 to file the motion, which was two years after section 1473.7 took effect.
The People argued the statute violated the principle of separation of powers.
Defendant’s judgment was final in 2012. Section 1473.7 was effective in 2017. Section
1473.7 could not be used to vacate defendant’s judgment without violating the separation
of powers.
The People additionally contended that defendant had failed to provide
corroborative evidence of his claims that he would not have taken the plea agreement if
he had been adequately advised of the immigration consequences. Defendant’s self-
9 serving statement had to be corroborated. The People alleged defendant was properly
advised of the immigration consequences. Further, at the time of the plea, Lacorte did
not have an obligation to investigate immigration consequences or negotiate a non-
deportable sentence. Attached to the opposition, was the complete police report.
On January 16, 2020, defendant filed a waiver of appearance pursuant to section
977, subdivision (a).
Defendant’s counsel filed a reply to the People’s opposition to the motion.
Defendant was willing to submit to cross-examination but was not available. Defendant
had been deported from the United States and the court was unable to compel his
appearance. Defendant had good cause as to why he could not be present at the hearing
on the motion. According to defendant, he was unable to obtain a green card to testify.
Defendant’s due process rights would be violated by having his declarations excluded.
The only way to be subject to cross-examination would be by illegally crossing the
border. The declarations were sufficient evidence to support defendant’s motion. He
would have not pled guilty if he had been aware of the immigration consequences. His
declaration was admissible as a hearsay exception because he was unavailable.
The declarations from Plascencia and her family were admissible to show the
consequences of his deportation. Further, defendant was diligent in seeking relief.
Defendant argued that section 1473.7 was valid and he was entitled to its protections.
Attached as an exhibit, defendant’s counsel provided the notice to appear, which
initiated deportation proceedings against defendant based on the section 314, subdivision
10 (1) charge. Defendant agreed to voluntary departure in lieu of removal. Defendant was
to depart on or before April 9, 2012.
Defendant submitted a supplemental declaration. He retained an attorney
immediately upon becoming aware of section 1473.7. Defendant additionally declared,
“I did not receive immigration warnings by the court as required under PC Section
1016.5.” New declarations were submitted from Plascencia’s parents. Also included was
a letter from a law firm explaining immigration consequences of different crimes.
E. FIRST HEARING ON MOTION
On January 24, 2020, the trial court held a hearing on the motion. The trial court
noted that the statements by defendant in his declarations were contradicted by the court
file. Based on the conflict, the People would need to cross-examine defendant. The trial
court felt it could not consider defendant’s declarations without the opportunity for the
People to cross-examine defendant. The trial court also expressed concern regarding the
emails between Lacorte and defendant’s current counsel. The statements by Lacorte
were privileged and defendant had not waived the privilege. Based on the exclusion of
defendant’s declaration and the emails, there was no evidence for the trial court to
consider in ruling on the motion. The People tried to admit the email from trial counsel
as evidence in its favor but the trial court excluded it. Lacorte3 was in court and could be
subject to cross-examination by defendant.
3 Since 2012, Lacorte had changed her last name to Lee.
11 Defendant’s counsel requested a continuance to further brief the issue of the
admission of defendant’s declaration. The trial court again expressed that section 1473.7
did not address the complete inability of a defendant to be cross-examined on a
declaration. The declaration was contradicted by other evidence so cross-examination of
defendant was crucial. The trial court granted the continuance for the sole purpose of
defendant’s counsel providing case law that allowed the motion to proceed without
defendant being available for cross-examination. The trial court also noted the
declaration from Plascencia was hearsay and would not be considered.
F. ADDITIONAL FILINGS
After the hearing, on February 4, 2020, defendant’s counsel filed a request for the
trial court to issue a subpoena for defendant’s appearance under section 1342; a request
for defendant to appear by video call; and a request for continuance to allow another
counsel to travel to Tijuana to appear with defendant on the video call. Defendant was
willing to present himself at the hearing if allowed to enter the United States. If
defendant could not appear, defendant’s counsel requested that he be allowed to appear
via a video call.
Defendant’s counsel included defendant’s waiver of appearance pursuant to
section 977, subdivision (a). Defendant’s counsel also submitted a survey and finding
prepared by the Judicial Council of California regarding video remote technology in the
courts. Defendant submitted another supplemental declaration indicating he was willing
to appear by video. He could appear by Skype or Facetime.
12 Defendant’s counsel also submitted a supplemental brief of cases in support of the
motion. Counsel argued that the People’s right to due process was not equivalent to the
defendant’s right to due process, and it would be a violation of defendant’s due process
rights to exclude his declaration; it was the only way he could raise the issue. The
reporter’s transcript of the plea agreement had been lost. Counsel also referred to
subdivision (d) of section 1473.7, which allowed for the hearing to proceed without
defendant’s presence if defendant’s counsel was present and the court finds good cause as
to why the defendant could not attend the hearing. Defendant’s counsel argued that the
trial court should admit the defendant’s declaration as defendant’s due process rights
outweighed the People’s rights.
Another hearing was conducted on February 14, 2020. The trial court advised
defendant’s counsel that the court did not issue subpoenas but that counsel could try to
subpoena defendant. The trial court then addressed the request for continuance for
defendant to appear by video conference. The People objected arguing that video
conferencing was not appropriate for cross-examination. The People did not believe that
there was a constitutional right to appear by video conference. Defendant’s counsel
argued that defendant wanted to be present but was not allowed in the United States.
The trial court noted there was video technology for arraignments. Cameras were
set up through the Department of Corrections and there were courtrooms set up to view
the video. However, the trial court was unaware of video conferencing being utilized for
cross-examination in the trial courts. The trial court was willing to grant a continuance if
defendant’s counsel could set up a system where the trial court and attorneys could see
13 defendant, and defendant could see the trial court and the attorneys. The trial court was
willing to allow defendant’s counsel to try to set up the appropriate video conferencing
by the next hearing, which was scheduled for February 21, 2020.
The People filed supplemental opposition to defendant appearing by video
conference. The People had a right to cross-examination. The People had due process
rights under Article I, section 29, and defendant was seeking to enforce a state statutory
right. The People insisted that they were entitled to cross-examination in person. There
was no authority permitting the court to have cross-examination of witnesses by video
conference. The People would be prejudiced as they would not be able to adequately
cross-examine him with documents.
Defendant’s counsel filed a response to the supplemental opposition filed by the
People. Defendant had the right to exercise his right under the law to bring the motion
under section 1473.7. There was no question defendant was unavailable. The motion
could be supported by defendant’s declaration. The trial court placed an undue burden on
defendant in trying to exercise his rights. He would be required to spend thousands of
dollars to pay counsel to go to Tijuana and also to provide adequate video equipment.
Defendant’s counsel asked that the trial court allow defendant to participate remotely
with the equipment, means and resources defendant was able to afford and allow his
declarations to be admitted as evidence if the equipment provided was not satisfactory.
G. RULING
The trial court heard argument on February 21, 2020. The trial court reiterated
that it was not going to consider defendant’s declarations if he was not available for
14 cross-examination. The trial court was concerned because defendant’s credibility was
paramount in the case. The trial court found defendant was unavailable but it was still
not appropriate to consider his affidavit. The trial court noted that unavailability was
required for some hearsay exceptions but in itself was not a hearsay exception.
Defendant’s counsel argued that the only way defendant could be heard in the case was
through his declaration. Defendant’s counsel also noted the trial court gave only three
days to defendant to set up the video call.
The People argued that no cases were presented to the court that it could consider
cross-examination by video conference for a Penal Code section 1473.7 motion.
Pursuant to Evidence Code section 773, subdivision (a), the People had a statutory right
to cross-examine defendant. Evidence Code section 711 required that it be done in court.
Further, the Legislature had provided for video testimony for arraignments and
vulnerable victims, but not for a motion pursuant to section 1473.7.
Defendant’s counsel insisted that the motion also raised a claim pursuant to
section 1016.5. It was a clerical error that it did not appear in the caption of the motion.
Defendant’s counsel argued that just initialing the plea agreement was not sufficient
evidence that defendant understood the plea agreement.
The trial court took the matter under submission.
The trial court denied the motion on June 1, 2020. The trial court submitted its
findings and ruling in writing. The trial court noted that defendant had been represented
by counsel, who was assisted by an interpreter at the time the plea agreement was signed.
The trial court noted defendant initialed the box that he understood he may be deported.
15 The trial court in a footnote stated, “In the motion caption it indicated §1473.7, in the
notice it was indicated as §§ 1016, 1473.7 and 1385. This ruling is only as to the §
1473.7 as that was the decision of counsel being the appropriate section.”
The trial court granted the section 977 waiver of appearance filed by defendant but
indicated that such waiver did not absolve defendant of any evidentiary obligation. The
trial court also found the motion was timely. Further, the misdemeanor conviction of
section 314, subdivision (1), was the cause of defendant’s removal from the United
States.
The trial court found defendant’s declarations were not admissible because he was
not subject to cross-examination. Defendant’s credibility was “paramount” and the
People had a due process right to cross-examination. The trial court could not rely on
defendant’s self-serving declarations and the declarations conflicted with the court
record. The trial court concluded, “Without cross-examination, the court could not make
a determination on the credibility of the Defendant as to any issue. While the court
recognizes the difficulties this presents to those having been removed, it is a fundamental
evidentiary issue without which this court cannot make proper rulings. [¶] Defense
proffered remote testimony. This court is not aware of any authority for such. In
reviewing case law as well as the objections raised by the People, this court could not
find any satisfactory manner in which the Defendant could testify remotely.” The trial
court excluded the declarations.
The court excluded any reference to the email from defendant’s counsel at the
time of the plea as defendant had not waived the attorney/client privilege. The other
16 declarations from his family were irrelevant to the plea or were hearsay and were
excluded. The trial court again noted that based on counsel’s indication at the hearing,
there would be no ruling under section 1016. However, the trial court additionally stated
that a preponderance of the evidence showed defendant was advised of the possibility of
deportation. The trial court stated, “Additionally, the court did reconsider the remote
testimony in light of the strides made in video access that became necessary during the
emergency, the court continues to deny remote testimony for the reasons stated above.”
The motion was denied.
DISCUSSION
A. SECTION 1473.7 MOTION
Defendant essentially argues as to the section 1473.7 motion that the trial court
erred by excluding his declarations as they were the only way that he could participate in
the proceedings. Such exclusion violated his due process rights. The trial court erred by
finding that the People’s due process rights to cross-examine him outweighed his due
process rights to have his motion heard by the only means available to him. He
additionally contends the trial court placed an undue burden on him to provide and pay
for his video appearance and by denying him a continuance to secure such technology.
Defendant seeks to have this court review the motion de novo and grant the motion based
on his declarations alone.
“Effective January 1, 2017, the Legislature passed Assembly Bill No. 813 (2015–
2016 Reg. Sess.) adding section 1473.7 to the Penal Code. (Stats. 2016, ch. 739, § 1.)
The section provided relief to those people who were ‘no longer imprisoned or
17 restrained.’ (§ 1473.7.) According to the author, the bill was necessary because at the
time, ‘under California law, there [was] no vehicle . . . for a person who is no longer in
actual or constructive custody to challenge his or her conviction based on a mistake of
law regarding immigration consequences or ineffective assistance of counsel in properly
advising of these consequences when the person learns of the error post-custody.’ (Sen.
Com. on Public Safety, Com. on Assem. Bill No. 813 (2015–2016 Reg. Sess.) July 7,
2015, at p. 6.)” (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1129 (DeJesus).) The
section has been amended several times.
As amended effective January 1, 2019, section 1473.7, subdivision (a)(1)
provides, “A person who is no longer in criminal custody may file a motion to vacate a
conviction or sentence for either of the following reasons: [¶] . . . 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.”4
“All motions shall be entitled to a hearing. Upon the request of the moving party,
the court may hold the hearing without the personal presence of the moving party
provided that it finds good cause as to why the moving party cannot be present. If the
4 Section 1473.7 was amended in 2020 effective January 1, 2021. There is no significant change from the section applicable at the time that defendant’s motion was heard and we will refer to the version effective January 1, 2019.
18 prosecution has no objection to the motion, the court may grant the motion to vacate the
conviction or sentence without a hearing.” (§ 1473.7, subd. (d), italics added.)
Pursuant to section 1473.7, subdivision (e)(1), in ruling on the motion, “The court
shall grant the motion to vacate the conviction or sentence if the moving party
establishes, by a preponderance of the evidence, the existence of any of the grounds for
relief specified in subdivision (a). For a motion made pursuant to paragraph (1) of
subdivision (a), the moving party shall also 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.”
Subdivision (e)(4) provides, “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.”
Under the 2019 version of section 1473.7, a defendant may simply show his own
subjective error in not knowing or understanding his plea’s actual or potential adverse
immigration consequences and need not show ineffective assistance of counsel pursuant
to Strickland v. Washington (1984) 466 U.S. 668, even if the motion is based on errors by
counsel. (People v. Camacho (2019) 32 Cal.App.5th 998, 1008-1009 (Camacho); People
v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia).) As the moving party, the defendant
bears the burden of showing the legal invalidity of his prior conviction by a
preponderance of the evidence. (Camacho, at p. 1005.) “To obtain relief, [a defendant]
19 must show by a preponderance of the evidence that the plea was legally invalid due to a
prejudicial error.” (DeJesus, supra, 37 Cal.App.5th at p. 1133.)
The California Supreme Court recently addressed how courts should determine
prejudice in deciding section 1473.7 motions in People v. Vivar (2021) 11 Cal.5th 510
(Vivar). “[S]howing prejudicial error under section 1473.7, subdivision (a)(1) means
demonstrating a reasonable probability that the defendant would have rejected the plea if
the defendant had correctly understood its actual or potential immigration consequences.
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 included 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
deposition was possible.” (Vivar, at p. 485.) “Courts should not upset a plea solely
because of post hoc assertions from a defendant about how he would have pleaded but for
his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to
substantiate a defendant’s expressed preferences.” (People v. Ogunmowo (2018) 23
Cal.App.5th 67, 78 (Ogunmowo).)
The Vivar court also addressed the proper standard of review of a trial’s court
decision on a section 1473.7 motion. It found that the proper standard was “independent
review” finding it appropriate based on multiple factors including, “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
20 appellate courts to assess that evidence.” (Vivar, supra, 11 Cal.5th at p. 436.) “ ‘[U]nder
independent review, an appellate court exercises its independent judgment to determine
whether the facts satisfy the rule of law.’ ” (Ibid.) The Supreme Court noted,
“ ‘ “[i]ndependent review is not the equivalent of de novo review.” ’ ” (Ibid.) It
additionally noted that, “In section 1473.7 proceedings, appellate courts should similarly
give particular deference to factual findings based on the trial court’s personal
observations of witnesses.” (Ibid.) It concluded, “Ultimately it is for the appellate court
to decide, based on its independent judgment, whether the facts establish prejudice under
section 1473.7.” (Id. at pp. 36-37.)
However, Vivar and the statute do not address how a trial court should conduct
the hearing on the motion pursuant to section 1473.7. Here, the trial court excluded the
declarations by defendant based on the inability of the defendant to be available for cross-
examination. The trial court found that the People’s right to due process “in this situation
differs from those involving shield statutes etc.” The trial court stated that credibility of
defendant was “paramount.” The determination of credibility required in-person
testimony and cross-examination of defendant. This court has found no case law or
language in the statute that supports the exclusion of a defendant’s declaration when
bringing a section 1473.7 motion. The statute does provide that a hearing on a section
1473.7 motion can proceed without defendant’s presence, and that a hearing need not be
conducted if the People concede that the motion should be granted. It appears that the
trial court incorrectly focused on the due process rights of the People and should not have
excluded the declarations.
21 In People v. Ault (2004) 33 Cal.4th 1250, the court discussed the due process
rights of the People in determining the proper standard of review (abuse of discretion or
de novo review) when a trial court grants a motion for new trial based on prejudicial juror
misconduct and the People file an appeal. (Id. at pp. 1255, 1259-1260.) The People
argued that the proper standard was de novo arguing “On the assumption that ‘due
process’ means ‘equal process,’ the People urge that if a defendant receives independent
review on the issue of juror bias when the trial court denies a new trial, the People are
entitled to the same standard of review when the trial court finds prejudice and grants a
new trial.” (Id. at p. 1269.) The Ault court stated, “However, we have rejected the notion
that ‘the [P]eople’s right to due process of law must be the exact equivalent to a criminal
defendant’s right to due process.’ (Miller v. Superior Court (1999) 21 Cal.4th 883, 896,
. . . [People’s state constitutional right to due process does not ‘trump’ provisions of state
Constitution’s ‘newsperson’s shield’ provisions, though defendant may have superior
federal due-process and fair-trial right to discover newsperson’s source]; see also
Menendez v. Superior Court (1992) 3 Cal.4th 435, 456-457, . . . [People’s state
constitutional right to due process does not ‘trump’ existing statutory privileges and
immunities, including psychotherapist-patient privilege].)” (Id. at p. 1269.) The court
reasoned, “Certainly the People, and society at large, have a significant interest in
preserving fair convictions. The trial court’s discretion to award a new trial must be
exercised with due regard to this important interest. Nonetheless, the People fail to
persuade us that they have a due process right—equivalent to the defendant’s right to be
free of conviction by a biased jury—to avoid retrying criminal charges before a new jury
22 unless an appellate court comes to an independent conclusion that the trial court’s
determination of prejudice from juror misconduct was correct. We therefore conclude
that article I, section 29 of the California Constitution affords the People no due process
right to independent review of a trial court order granting a new trial on that ground.”
(Ault, supra, 33 Cal.4th at pp. 1269-1270.)
The determination by the trial court in this case placed the People’s due process
rights above those of defendant. Defendant was not available, as determined by the trial
court, but the only way for him to appear at the hearing was by his declaration, which
was excluded. As stated, the Legislature anticipated that some defendants would not be
available for the hearing. The Legislature specifically provided that the hearing on the
section 1473.7 motion could be conducted outside the presence of the defendant.
(§ 1473.7, subd. (d).) There is no indication that the Legislature intended that the
defendant would have to be made available for cross-examination in order for the trial
court to consider the motion and the defendant’s declarations. As such, the Legislature
anticipated there would be no opportunity for the People to cross-examine the defendant
by finding that the hearing was allowed to proceed without the defendant. It places an
undue burden on a defendant who may be in federal custody awaiting deportation, or who
may already have left the United States and cannot return, like defendant in this case, to
be available for cross-examination. It appears the appropriate resolution here was that the
23 declarations were admissible despite defendant being unavailable for cross-examination.5
The trial court should have considered defendant’s declarations in support of the motion.
Such result is supported by Vivar. The California Supreme Court found that
independent review by the appellate court was proper because a majority of these
motions are based on a cold record. It noted, “Where, as here, 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.” (Vivar, supra, 11
Cal.5th at p. 436.) Although the California Supreme Court did not address the issue
involved here, it recognized that the trial courts may only have a declaration in deciding a
section 1473.7 motion and implied that live testimony was not necessary.
It is further supported by prior cases in which the trial court has considered only
the defendant’s declaration and contemporaneous evidence presented with the motion in
deciding section 1473.7 motions. In Ogunmowo, the defendant sought to have his 1989
conviction vacated wherein he admitted to a charge of possession for sale of a controlled
substance by bringing a section 1473.7 motion. (Ogunmowo, 23 Cal.App.5th at p. 69.)
In 2004, deportation proceedings were instituted against the defendant based on the
conviction. (Id. at p. 71.) He insisted his counsel provided ineffective assistance by
failing to advise him of the immigration consequences. (Id. at pp. 72-73.) The
defendant’s counsel at the time of the plea provided a declaration. He admitted advising
5 Since we conclude that defendant’s declaration was admissible without him being subject to cross-examination, we need not address whether the trial court erred by failing to allow for his testimony by video conference.
24 the defendant that there would be no immigration consequences. However, the trial court
did advise the defendant that there could be immigration consequences, including
deportation. The defendant provided a declaration that he did not recall the trial court’s
advisal and would have not taken the plea agreement if he had been properly advised of
the immigration consequences. (Id at p. 73.) The People did not file opposition to the
defendant’s section 1473.7 motion. (Ogunmowo, at p. 73.) The trial court denied the
motion finding that the defendant had failed to show ineffective assistance of counsel
because it was not proven that the immigration consequences were a factor in the
defendant accepting the plea. (Id. at p. 74.)
On appeal, the Ogunmowo court relied on the declarations from the defendant and
his counsel to support that the defendant was misadvised by his counsel that there would
be no immigration consequences, and that the defendant would not have taken the plea
deal if he was aware he would be deported. (Ogunmowo, supra, 23 Cal.App.5th at pp.
76-81.) The court concluded, “Taken together [the defendant’s] declaration and [his trial
counsel’s] affidavit demonstrate a reasonable probability [the defendant] would not have
pleaded guilty if [trial counsel] had not misadvised him. Accordingly, [the defendant]
established prejudice.” (Id. at p. 81.)
In DeJesus, supra, 37 Cal.App.5th 1124, the defendant filed a section 1473.7
motion and submitted his declaration, records regarding his legal status, and a declaration
from his post-conviction attorney in support of his motion. (Id. at p. 1128.) The
appellate court concluded that the defendant had failed to produce sufficient evidence of
prejudice by failing to present contemporaneous evidence to substantiate his post hoc
25 assertion that he would not have accepted the plea agreement if he was aware of the
immigration consequences. (Id. at pp. 1133-1135, 1137.) Although the trial court found
that there was insufficient evidence of prejudice, it considered the defendant’s declaration
despite him not testifying.
The courts have accepted declarations without testimony and considered the
declarant’s veracity in the declarations by considering corroborating evidence from the
time of the plea agreement. As such, the trial court should have admitted defendant’s
declarations and considered the contemporaneous evidence supporting the claims made in
the declarations.
Further, the admission of defendant’s declaration is supported by Code of Civil
Procedure section 2009, which states: “An affidavit may be used to verify a pleading or a
paper in a special proceeding, to prove the service of a summons, notice, or other paper in
an action or special proceeding, to obtain a provisional remedy, the examination of a
witness, or a stay of proceedings, and in uncontested proceedings to establish a record of
birth, or upon a motion, and in any other case expressly permitted by statute.” Code of
Civil Procedure section 1102 makes civil rules of evidence applicable to criminal actions.
The People argue that Code of Civil Procedure section 2009 only applies to motions
brought prior to trial on procedural matters. However, they provide no case law to
support such statement.
Finally, there is no fundamental unfairness to the People in not being allowed to
cross-examine defendant. The trial court cannot grant the motion solely on the self-
serving statements made in the declaration. As stated, “Courts should not upset a plea
26 solely because of post hoc assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies. Judges should instead look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.” (Ogunmowo, supra, 23
Cal.App.5th at p. 78.) The trial court cannot grant the section 1473.7 motion based solely
on defendant’s declaration. While certainly defendant’s testimony would shed light on
whether he would have accepted the plea, it was not necessary for the trial court to
resolve the motion. The trial court must consider any other contemporaneous evidence
along with the declaration in deciding a section 1473.7 motion. (See Vivar, supra, 11
Cal.5th at p. 438 [“[W]hen a defendant seeks to withdraw a plea based on inadequate
advisement of immigration consequences, we have long required the defendant
corroborate such assertions with ‘ “objective evidence” ’ ”].) Such contemporaneous
evidence can be admitted by counsel. Hence, in order to preserve a defendant’s right to
bring a motion pursuant to section 1473.7, the trial court here should have admitted
defendant’s declaration even without the ability of the People to cross-examine
defendant.
We note that Vivar directs this court to independently review the record and
determine if defendant has shown prejudice. However, in this case, defendant was not
given a hearing on the merits of his motion under the applicable law and the trial court
did not review the motion on its merits. (Pen. Code, § 1473.7, subd. (d) [“[a]ll motions
shall be entitled to a hearing”].) Moreover, it appears the court erred by excluding
Lacorte’s testimony. By raising the claim in the motion that he was not advised by
counsel of the immigration consequences, it appears defendant waived such privilege in
27 connection with the resolution of the motion. (See People v. Ledesma (2006) 39 Cal.4th
641, 690-691; Evid. Code, § 958.) The People were entitled to introduce Lacorte’s
testimony at the hearing. While this court can independently review the record, if the
record is not complete, it appears the appropriate remedy is remand for the record to be
fully developed. As noted in Vivar, “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.” (Vivar, supra, 11 Cal.5th at p. 440.) Thus, we will reverse the
trial court’s order and remand the matter for the trial court to review all of the evidence,
which may include testimony from Lacorte, under the prejudice standard set forth in
Vivar.
B. SECTION 1016.5
Defendant further contends the trial court erred by refusing to consider
defendant’s claim pursuant to section 1016.5. He insists the trial court did not advise him
of the immigration consequences when accepting the plea agreement.
Section 1016.5 requires the trial court to administer the following advisement
before accepting a plea of guilty or nolo contendere: “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).)
28 Section 1016.5 further provides that if “the court fails to advise the defendant as
required by this section and the defendant shows that conviction of the offense to which
defendant pleaded guilty or nolo contendere may have the consequences for the
defendant of deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States, the court, on defendant’s motion,
shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo
contendere, and enter a plea of not guilty.” (§ 1016.5, subd. (b).)
To prevail on a motion to vacate under section 1016.5, a defendant must show he
“was not properly advised of the immigration consequences of the plea as required by
section 1016.5, subdivision (a); there existed, 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 the defendant was prejudiced by the nonadvisement.”
(People v. Arendtsz (2016) 247 Cal.App.4th 613, 617.) To show prejudice, the defendant
“must prove it was reasonably probable he or she would not have entered a guilty, no
contest or nolo contendere plea if properly advised.” (Ibid.) “To that end, the defendant
must provide a declaration or testimony stating that he or she would not have entered into
the plea bargain if properly advised. 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.” (People v. Martinez
(2013) 57 Cal.4th 555, 565.)
29 It is well settled that the advisement required by section 1016.5 need not be given
orally. (People v. Quesada (1991) 230 Cal.App.3d 525, 536, superseded by statute on
other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207, fn.
5.) “It is sufficient if . . . the advice is recited in a plea form and the defendant and his
counsel are questioned concerning that form to ensure that defendant actually reads and
understands it.” (Quesada, at p. 536.) “Only if in questioning the defendant and his
attorney the trial court has reason to believe the defendant does not fully comprehend his
rights, must the trial court conduct further canvassing of the defendant to ensure a
knowing and intelligent waiver of rights.” (People v. Castrillon (1991) 227 Cal.App.3d
718, 722.) We review the trial court’s decision to grant or deny a section 1016.5 motion
for abuse of discretion. (People v. Zamudio (2000) 23 Cal.4th 183,192.)6
Here, the motion filed by defendant’s counsel itself was not clear that defendant
was raising a claim pursuant to section 1016.5. However, throughout the proceedings,
defendant’s counsel made it clear that this was an issue to be decided by the trial court.
Defendant, in his supplemental declaration, stated that he did not receive immigration
warnings from the trial court.
The People contend the trial court properly heard argument on defendant’s section
1016.5 motion on February 21, 2020. The record does not support that the trial court
properly considered the section 1016.5 motion at the hearing. During argument that day,
defendant’s counsel stated, “The defendant is moving this Court to vacate its plea based
6 Vivar does not appear to change the standard of review for motions brought pursuant to section 1016.5.
30 on 1473.7 and 1016.5.” The trial court responded, “Counsel, I didn’t think we were at a
1016.5.” Counsel responded, “Within the motion, yes your honor.” The trial court
stated, “I thought that was specifically denied. Am I confusing cases?” Defendant’s
counsel stated, “I believe so, your Honor.” Defendant’s counsel confirmed that
defendant was claiming he did not receive the court advisals under section 1016.5 and
also received ineffective assistance of counsel.
The People responded that defendant’s counsel had captioned the motion as being
pursuant to section 1473.7 and not section 1016.5. None of the subsequent filings
referred to section 1016.5. If the trial court considered section 1016.5, the plea
agreement was evidence that he was properly advised by the court.
Inexplicably, the trial court stated in its ruling, “the court makes no ruling as to
any PC § 1016 motion based upon counsel’s indication at the time of the hearing.” The
trial court did not consider the merits of defendant’s section 1016.5 motion. As stated in
the written ruling, it found counsel had decided not to pursue the section 1016.5 motion.
Since this court has determined that remand in order for the trial court to consider
the section 1473.7 motion on its merits is appropriate, remand to the trial court for it to
additionally consider the motion pursuant to section 1016.5 is proper. Since we review
the trial court’s ruling on a section 1016.5 motion for an abuse of discretion, the trial
court is in the best position to determine the motion upon remand.
31 DISPOSITION
We reverse the trial court order denying defendant’s motion. We remand for the
trial court to consider defendant’s motion in accordance with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
RAPHAEL J.