Filed 8/10/26 P. v. Chiriac 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E086177
v. (Super.Ct.No. RIF138126)
EMANUEL CHIRIAC, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Robin Urbanski and Caelle
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1
In July 2009, defendant and appellant Emanuel Chiriac was convicted of
committing a lewd act on the victim who was under the age of 14, a violation of Penal
Code section 288, subdivision (a).1 The jury was hung on two other counts of
committing a lewd and lascivious act with force under section 288, subdivision (b), also
committed against the victim. In 2011, defendant entered guilty pleas to two counts of
violating section 288, subdivision (a). He was placed on formal probation for a period of
five years for all counts.
Defendant filed an appeal in which we affirmed his conviction in an unpublished
opinion filed on August 10, 2011, People v. Chiriac, E050864 [nonpub. opn.] (Opinion).
In October 2024, defendant filed a motion to vacate his convictions pursuant to section
1473.7, subdivisions (a)(1) and (a)(2). He claimed he was actually innocent of the
charges based on newly discovered evidence and that he was not properly advised of the
immigration consequences when he pled guilty to the two additional section 288,
subdivision (a), offenses. A hearing was held in February 2025; the victim testified that
her father forced her to make the accusations against defendant and recanted her trial
testimony. After hearing the testimony, the trial court issued a written order denying
defendant’s section 1473.7 motion. It found that defendant failed to provide new
evidence of actual innocence based on finding the victim’s recantation of her testimony
not credible, and that defendant failed to show a reasonable probability that he suffered
prejudice due to the failure to advise him of the immigration consequences of his plea.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
On appeal, defendant asks this court to exercise its independent review of the
court’s order denying his motion pursuant to section 1473.7 and grant him a new trial.
He claims that he showed by a preponderance of the evidence that newly discovered
evidence of actual innocence existed, which required that his convictions be vacated. He
further claims that he established there was a reasonable probability he suffered prejudice
because he was not properly advised and did not meaningfully understand the
immigration consequences of proceeding with the trial, and also in entering the guilty
pleas.
For the reasons set forth below, we shall affirm the trial court’s order.
FACTUAL AND PROCEDURAL HISTORY2
“A. PROSECUTION
“The victim testified that in May of 2006, when she was 13 years old, defendant
(her uncle by marriage) asked her if she wanted to go to the store with him; she agreed.
Defendant drove to a nearby ‘golf park.’ They got out of the car and walked down a hill
to the park. The victim lay down in the grass; defendant lay down beside her. He asked
her if she was a good kisser; the victim told him that was none of his concern.
Nevertheless, defendant repeatedly asked her for a kiss. The victim kept telling him
‘No.’ He leaned in to kiss her; she relented and kissed him for about 10 seconds.
Defendant told the victim she was a good kisser.
2 The factual history is drawn from the Opinion.
3
“Soon thereafter they saw smoke arising from a nearby home. They got up, went
to the car, and drove to the fire. A fire truck responded. They watched the fire for
several minutes but then returned to the same spot where they parked before.
“Defendant locked the doors of the car so that the victim could not exit. He asked
her if she wanted to see his penis; she told him he was stupid. Defendant pulled his pants
halfway down, revealing his erect penis. Defendant asked her if she wanted to suck his
penis; he told her to ‘suck his dick.’ She told him no; nonetheless, he continued to ask
and told her he would not take her home until she did. The victim was scared; she did not
know what to do. She repeatedly told him no. Defendant then grabbed her head and
pulled it down toward his penis; he used ‘hard force.’ She unsuccessfully tried to pull
away. Defendant told her to ’suck his dick.’ The victim again told him she did not want
to; however, she started to orally copulate him because she wanted to go home and
thought defendant would kill her if she did not. Defendant ejaculated into her mouth
after approximately 30 seconds; he unlocked the door so the victim could open it and spit
out his semen. Defendant warned her if she ever told anyone he would kill her. He then
drove her back to her grandmother's house.
“They never went to the store. When they returned, another uncle asked them why
they had returned without groceries. The victim did not tell anyone what had happened
because she remained scared of defendant.
“The victim testified that on another occasion approximately two months later and
sometime prior to July 9, 2006, the victim and her mother spent the night at defendant’s
apartment. The victim’s mother had engaged in an argument with the victim’s father,
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necessitating that she stay somewhere else. The victim wanted to go with her mother to
stay at defendant’s apartment. She slept in the living room with her mother. The next
morning, her mother and defendant’s wife, Claudia, went to the store while the victim
was still sleeping.
“The victim awoke and went to the restroom. Defendant knocked on the door and
told her to come out. She asked him why; he said he wanted to talk. The victim exited
the restroom because she believed her mother had returned to the apartment. Defendant
was sitting on the edge of his bed; he told her sit on the bed. She declined. He got up off
the bed and pulled her onto it with both his hands. She told him to stop before her mother
and Claudia returned. He told her they were not coming back. Defendant bent her down
over the bed so she was lying on her stomach.
“The victim attempted to fight defendant off but was unable to overcome him
because he had both his hands on her back. While still holding down on her back with
his left hand, he pulled her pants halfway down with his right hand. Defendant moved
her underwear to the side. The victim kept telling him to stop; she was scared and crying.
Defendant pulled down his pants and put his penis inside her vagina; it hurt. She
continued to resist and repeatedly told him to stop. After 25 to 30 seconds, defendant
ejaculated. Defendant then saw the victim’s mother and Claudia entering the apartment
complex. Defendant went into the bathroom to clean himself. The victim pulled up her
pants and went into the living room; defendant told her not to say anything or he would
kill her. She did not tell anyone because she was scared defendant would kill her.
5
“The victim eventually told her cousin what defendant had done to her during the
first incident. Her cousin told the victim’s boyfriend, who told her uncle, who told her
mother; her mother questioned her regarding the incident. When her mother approached
her, she revealed the details of the first incident. After everyone found out what had
occurred, defendant again threatened to kill her unless she denied everything. The victim
denied anything had occurred between her and defendant when first confronted by her
boyfriend and uncle; she did so because she was scared defendant would kill her.
“The victim’s mother, father, and grandmother then brought her to the police
station, where she reported the first incident. However, she did not initially provide
every detail of the episode. Likewise, she did not report the second incident because she
was nervous and scared. At a later date, when she spoke to another officer, she reported
the second incident. The victim initially reported she was unsure if defendant penetrated
her during the latter occurrence; at trial, she testified she was certain he did because it
hurt. The victim could not testify as to whether defendant’s penis had any distinguishing
characteristics or whether he was circumcised, though she testified he shaved his pubic
hair.
“Rachelle Walker, the owner of a home near the golf park, testified that the fire
department was called to her home sometime between May and July 2006. One of the
victim’s uncles and one of her aunts both testified they recalled the victim going to the
store with defendant and returning without groceries on one occasion. The victim’s
mother testified she and the victim stayed overnight at defendant and Claudia’s apartment
prior to July 9, 2006. The victim’s mother left the apartment at one point and returned to
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find the victim crying. She heard about the first incident from her brother. The victim’s
mother, the victim, the victim’s father, and the victim’s grandmother all drove to the
police department to report the incident.
“The victim’s . . . boyfriend (her husband at the time of trial), testified he heard
rumors regarding an incident between the victim and defendant from the victim’s cousin;
he confronted the victim, but she initially denied the rumors. He later overheard a
telephone conversation between the victim and defendant in which the victim reported to
defendant that her family knew what had occurred between them; defendant told her to
deny everything or he would kill her. The victim’s [boyfriend] then confronted her and
she revealed everything. The victim’s [boyfriend] admitted that he never told anyone,
prior to his testimony, about overhearing the phone conversation; he did not do so
because he had an outstanding warrant for his arrest.
“B. DEFENSE
“The victim’s grandmother testified she went to the police station with the victim,
and the victim’s mother and father on June 27, 2007. On the way to the police station,
the victim’s father coached the victim what to tell the police. She testified the victim was
a liar.
“Defendant’s wife, Claudia, testified defendant had a large birthmark on his penis,
was uncircumcised, and had never shaved his pubic hair. The victim’s father had Claudia
sign a mortgage on a home for him; she asked that her name be removed from the
mortgage when he started to make late payments. Although Claudia’s name was
eventually removed from the mortgage, the victim’s father threatened her that someday
7
she would be made to pay for her decision. While the victim’s mother spent several
nights at her apartment, the victim never did. Claudia testified the victim was a ‘big
liar.’ ”
B. PROCEDURAL HISTORY
An amended information was filed on July 27, 2009, charging defendant with
three counts of lewd and lascivious behavior with a minor under the age of 14 by force or
duress (§ 288, subd. (b)(1)). The jury found him guilty of one count of the lesser offense
of a violation of section 288, subdivision (a), but hung on the remaining two counts.
Defendant was placed on five years’ probation and was to register as a sex offender
pursuant to section 290.
On March 16, 2011, defendant entered a guilty plea to two counts of violating
section 288, subdivision (a), and the prosecutor dismissed the section 288, subdivision
(b), counts. Defendant signed the plea agreement on March 16, 2011. He initialed the
term “If I am not a citizen of the United States, I understand that this conviction may
have the consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.” He also initialed, “I
have had adequate time to discuss with my attorney (1) my constitutional rights, (2) the
consequences of any guilty pleas, and (3) any defenses I may have to the charges against
me.” The defense attorney also attested, “I am satisfied that (1) the defendant
understands his/her constitutional rights and understands that a guilty plea would be a
waiver of those rights; (2) the defendant has had an adequate opportunity to discuss
his/her case with me, including any defenses he/she may have to the charges; and (3) the
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defendant understands the consequences of his/her guilty plea. I join the decision of the
defendant to enter a guilty plea.”
The trial court took the plea in open court on March 16, 2011. Defendant entered
a guilty plea to the two counts of violating section 288, subdivision (a). The trial court
asked defendant, “You understand that you’re giving up the various rights of the trial,
which are enumerated on this yellow plea form?” Defendant responded, “Yes, sir.”
Defendant also acknowledged that he had reviewed the plea form with his attorney and
that he understood it. Defendant stated that he signed the plea form and that he was not
being forced to take the plea. The trial court asked if he understood he would be placed
on probation, and he responded, “Yes sir.” The trial court asked, “You understand the
other consequences of the plea, as they’re enumerated on this plea form?” Defendant
responded, “Yes.”
Defendant was placed on probation for a period of five years with credit for time
served of 181 days. Defendant’s convictions were affirmed on appeal. On July 13, 2023,
defendant appeared in court on a probation violation. It was determined that his
probation ended in 2015 and the probation violation was dismissed.3
C. MOTION TO VACATE HIS CONVICTION AND SET ASIDE PLEA
On October 18, 2024, defendant filed his “Notice of Motion and Motion to Vacate
Past Convictions and Set Aside No Contest Plea Pursuant to Penal Code section 1473.7”
(all caps and boldface omitted; hereafter, the Motion). He relied on his own declaration
3 Defendant filed a prior motion to vacate his conviction on April 2, 2021. It was
denied on procedural grounds and is not relevant to the current motion.
9
and a declaration from the victim. He insisted that he was actually innocent of the
charges as the victim had recanted her trial testimony. He also raised two claims of
ineffective assistance of counsel. He first claimed that he received misleading advice
from his trial counsel at trial. He insisted that his trial counsel forced him to a jury trial,
that his counsel expressed confusion about the case, mixed up witnesses and the timeline
of events. His counsel also failed to properly prepare defendant for trial. He also
received ineffective assistance of counsel on the plea agreement, which was different
counsel. His counsel advised him to take a plea deal, and provided no advice, and did not
explain the potential immigration consequences. His convictions subjected him to
deportation.
He provided a declaration from Carlos Valdez, an attorney at the U.S. Law Center.
Valdez declared that a conviction for a violation of section 288, subdivision (a), carried
adverse immigration consequences. If he had been defendant’s counsel at the time the
plea was entered, he would have chosen an “immigration safe charge” such as a violation
of section 32 (accessory after the fact).
Defendant provided a declaration. He was a citizen of Romania. He became a
legal permanent resident on April 11, 2013. He left the United States in April 2013 due
to death threats made against him and his wife, a United States citizen, from the victim’s
father (Father). In July 2014, Father murdered his own wife and then committed suicide.
Defendant was currently in removal proceedings due to his conviction. He stated,
“I would have never accepted the trial nor the guilty plea if I understood the immigration
consequences that a guilty conviction had on my immigration status.” He was unable to
10
seek relief from his removal proceedings based on his convictions. He further stated, “At
the time of the plea, I did not comprehend that this conviction would adversely affect my
future immigration status. My attorney did not advise me that this trial outcome would
impact my immigration status. Attorney Lapine did not discuss trying to get a plea deal
that would not impact my immigration status or advise me to consult with an immigration
attorney misleading me into the guilty plea. I would have chosen to proceed differently if
I were properly informed by an attorney of the immigration consequences. If I knew the
risk of harsh immigration consequences trigged by this guilty conviction, I would not
have accepted the trial and its outcome.” He would not have entered a guilty plea to a
violation of section 288, subdivision (a), if he was aware of the immigration
consequences.
Defendant provided a letter written by the victim. It stated, “I [the victim] am
writing this letter to clarify my feelings of remorse I have been feeling with regret what I
had to do and what I was told to do what my father at a very young age. My dad was
telling me to say that [defendant] raped me. That didn’t happen, [t]he threats that he
made against people he actually did in that really scared me because I was afraid, that he
would do the same to me if I didn’t listen to what he said. [¶] So in conclusion none of
this happened he didn’t touch me he didn’t rape me. I was just told what to say
frequently. It has taking me a long time to write this down. But I can no longer live with
this guilt. Thank you so much.” (Sic.) Defendant also provided with the Motion a notice
to appear from the Department of Homeland Security for removal proceedings on
October 21, 2024, based on his convictions.
11
The People filed opposition to the Motion. They contended the plea form included
sufficient notice of the immigration consequences. Defendant’s uncorroborated assertion
that he was not aware of the immigration consequences was insufficient based on the
record. Defendant only presented his self-serving statements in the declaration that he
would not have accepted the plea were he aware of the immigration consequences. There
was no evidence prior to the trial that he sought to negotiate for a lesser charge. The
People further argued that even if he had negotiated a different plea, he still would have
the conviction of the one section 288, subdivision (a), offense based on the jury trial.
The People also argued the claim of actual innocence did not entitle defendant to
relief. The victim had recanted her trial testimony 14 years after trial. The defense at
trial was that Father forced the victim to make up the story. There was evidence prior to
the trial that defendant was pressuring witnesses, and it was possible defendant pressured
the victim to recant her testimony.
Defendant filed a supplemental brief in support of the Motion on January 10,
2025. Defendant argued the victim had now come forward based on Father’s death.
Defendant filed a second supplemental brief in support of the Motion on February
10, 2025. Another declaration from the victim was provided. It was dated “3/31/19” and
provided as follows: “1. I was the complaining witness in the People of the State of
California v. Emanuel Chiriac (RIF138126) [¶] 2. During the case, I testified that, in
May 2006, [defendant] kissed me and forced me to perform oral sex on him. [¶] 3. I
also testified that approximately two months later, [defendant] raped me. [¶] 4. My
testimony was false. [¶] 5. I gave that testimony at the direction of my father, . . . [¶] 6.
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[Defendant]never committed the acts, against me, for which he was convicted. [¶] 7. I
have received no compensation or benefit from making this statement. [¶] 8. I am
giving this statement of my own free will.” It was signed under penalty of perjury.
Defendant’s wife (Wife) also provided a declaration that she had hired Michael
LaCilento to represent defendant. She asked him several times if the case would impact
defendant’s asylum status and was assured by counsel that it would not. LaCilento never
advised her to consult with an immigration lawyer or seek guidance from immigration
counsel.”
Prior to the hearing, on February 13, 2025, defendant provided a declaration from
the victim’s uncle (Uncle). Uncle declared that on July 19, 2014, Father came to his
house. Father shot and killed his own wife, the victim’s mother. Father then tried to kill
Uncle and other persons at the house before finally shooting himself. The victim
confided in Uncle that she lived in constant fear of her father, and that Father made her
make the accusations against defendant. Uncle declared that Father was evil and
heartless.
D. HEARING ON MOTION
The hearing was held on February 20, 2025. Defendant was not present but was
represented by counsel. He was in federal immigration custody.
The victim was born in August 1992. The victim testified that defendant was
married to her aunt. She explained that Father hated her mother’s family and wanted to
kill the entire family. In 2014, he shot one of her other uncles and he killed the victim’s
mother. He then shot himself in the head.
13
She recalled that she testified in court in 2007. She admitted testifying that
defendant had sexually abused her but that it was not true. He never “did any of that to
me at all.” She explained that Father had gotten into her head. He told her that he did not
like defendant and his wife. She testified “He just told me what to say, like I said,”
because he did not like her aunt and defendant, and wanted them out of their lives. She
admitted that the day of the fire, she and defendant went to the park together but he never
kissed her. Father got mad at her for going to the park with defendant so he “put things”
in her head “that he did things to me, which was not true.” Defendant had never touched
her inappropriately. Everything she told the police and testified to at trial was false.
On cross-examination, the victim admitted she spent a lot of time with defendant
at the time of the accusations. Father told her many times what to say to the police
officers and got into her head. The victim first told her cousin (Cousin), and then her
grandmother (Grandmother), about the sexual abuse by defendant before she went to the
police. The victim claimed Father’s death “liberated” her to tell the truth about
defendant. She first stated that only her mother and Grandmother knew that what the
victim testified to was not true but she later testified that she told Cousin that Father had
told her what to say. The victim insisted that Father told her to make sure she said that
she “sucked his dick” and “he comes in your mouth.” At 15 years old, she knew that
defendant was going to get in trouble. She never told the police that Father had told her
to make statements about sexual abuse because she was afraid that Father would get in
trouble, and she thought he would go to jail forever. She was not sure why she told
Cousin and Grandmother that Father was telling her what to say. The victim described
14
Father as being “psycho” and “mental.” Father was the “happiest man alive” when
defendant was convicted.
Grandmother testified defendant was her son-in-law. She recalled that sometime
in 2007, she drove to the police department with the victim and Father. During the drive,
Father told the victim to tell the police that she was sexually abused by defendant.
Grandmother recalled that the victim was to tell “all of the sexual misconduct and sexual
assaulting.” Grandmother could see that the victim was very afraid of Father.
Grandmother could not recall the exact words that Father told the victim to say. She
recalled something about Father saying defendant forced her to have sex with him.
Grandmother could not recall speaking with the police in 2007. She never told the police
that Father forced the victim to make the accusations against defendant. When asked
why she never told the police that the victim was lying, despite being close to defendant,
she responded, “I didn’t know. I didn’t know how did I know. I didn’t know what
happened. I didn’t know what was happening. I didn’t know.”
Wife testified she had been married to defendant for 18 years. Defendant and
Father got into a confrontation in 2006 about a property Wife had bought for Father that
was in her name. After the confrontation, Father threatened her and defendant. Wife had
always known the accusations against defendant were not true. She also stated that
Grandmother had testified at the trial in 2009 that the victim was lying because of Father.
Wife hired a lawyer in 2019, and the victim told the lawyer that she lied in her testimony.
Wife hired the lawyer because, after Father died, the victim told her that she was no
longer afraid of Father and felt guilty about lying.
15
At the end of the hearing, the trial court noted there were two issues. First, it
appeared that defendant pleaded guilty to two counts of his own free will. Second, he
was convicted by a jury at trial of violating section 288, subdivision (a). Even if the trial
court agreed there was new evidence, and defendant was entitled to a new trial on the one
conviction, the plea would still stand. Defendant’s counsel responded that the newly
discovered evidence applied to both the trial and plea. He would not have pleaded guilty
if there had not been the jury verdict. The victim’s live testimony showed that she
provided false testimony at trial. This was new evidence that showed actual innocence.
The convictions should be vacated under section 1473, subdivision (a)(2), and he was
entitled to a new trial on all three charges.
The prosecutor argued that the victim’s testimony in court that day “was not very
believable,” especially given the other evidence. She was evasive in answering
questions. Further, Wife’s testimony did not prove that Father coached the victim as to
what to say to the police. The only evidence was that Father was taking the victim to the
police station to report sexual abuse but there were no specifics about what she was told
to say by Father. Further, Father passed away in 2014 but the victim did not come
forward until 2019. The jury had already heard Wife’s testimony and had already
evaluated her credibility.
As for immigration consequences, defendant was able to get his permanent
resident card in 2013, well after his convictions. Further, defendant lived outside the
United States from 2013 until 2023. There was only defendant’s self-serving declaration
16
that he would not have entered a guilty plea had he known of the immigration
consequences. The matter was taken under submission.
E. TRIAL COURT’S WRITTEN RULING
The trial court’s written ruling was filed on March 25, 2025. The court stated that
it had reviewed the Motion, the People’s opposition, supplemental briefing by defendant,
all declarations and exhibits, and had observed the testimony presented at the hearing.
The court then reviewed the evidence from trial and the procedural background of the
case.
The trial court first addressed the immigration consequences claim. The court
found that defendant was claiming that his plea to the two charges of violating section
288, subdivision (a), was invalid because he was not properly advised of the immigration
consequences of his plea and that he did not meaningfully understand the consequences.
The court recounted defendant’s factual support for the claim. It noted the declaration
from Carlos Valdez in which Valdez stated that a violation of section 288, subdivision
(a), carried adverse immigration consequences. Valdez stated that had he been
defendant’s attorney, he would have sought an immigration safe plea or would have taken
the case to trial. The court also noted that defendant provided his own declaration in
support of the claim. Defendant had come to the United States as an asylee in 2002. He
married Wife and became a lawful permanent resident in 2013. Defendant, Wife, and
their four children left the United States for several years due to threats from Father. He
had been served with a notice to appear in federal removal court due to his convictions in
the instant case.
17
The trial court found that “even assuming defendant was misadvised or
misunderstood the immigration consequences of his pleas,” he failed to establish a
reasonable probability he suffered prejudice. It found, “The only evidence to establish
prejudice is defendant’s self-serving, long after-the-fact statements regarding what he
would have done.” Defendant was married to a United States citizen at the time of the
plea, and there was no evidence of his priorities when he pleaded guilty, or what his
aversion to immigration consequences would have been at the time. The court noted that
at the time of the plea, defendant had already been convicted of violating section 288,
subdivision (a), which exposed him to immigration consequences. Defendant was facing
two serious offenses if he proceeded to trial and could have been sentenced to state
prison. The court concluded that the plea bargain permitted defendant to avoid a second
trial, avoid being convicted of more serious charges, and avoid being sentenced to prison.
It concluded, “Under these circumstances, defendant has failed to establish a reasonable
probability that he would have rejected the plea bargain and chosen to again take the
charges to trial.” The claim for relief on these grounds was denied.
As for the actual innocence claim, the trial court recounted the letter written by the
victim and the declaration dated March 31, 2019, that was submitted with the Motion.
The trial court also reviewed the victim’s testimony at the hearing, which it found was
consistent with her written statements.
The trial court found that the victim’s recantation was not credible. “During her
testimony at the hearing, she did not answer questions directly and was vague in her
answers.” The trial court noted that she only discussed one incident in her testimony, but
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there were two incidents at trial. She stated at the hearing that her father told her to tell
the police that defendant had kissed her and forced her to perform oral sex. However, at
trial, she also described an incident in which defendant “violently raped her. This
apparent discrepancy was not addressed.”
The trial court also noted that the victim stated Father’s death liberated her to tell
the truth, but he died in 2014 and she did not come forward until many years later. In the
10 years since Father’s death, she never went to the police or the district attorney. The
trial court also found that the victim “testified that she lied in order to get defendant in
trouble and that the reason she did not tell law enforcement that [Father] was forcing her
to lie was because she did not want [Father] to get in trouble and potentially spend the
rest of his life in jail. If this were the case, it makes little sense that she would have told
[Cousin] and [Grandmother] that [Father] was making her lie, thus putting him at risk of
being caught and facing the consequences that [the victim] said she was hoping to avoid.
Further, there was no corroborating testimony from [Cousin] or [Grandmother.]”
The trial court also found, “It appears [the victim]’s credibility was strongly
challenged at trial, with her grandmother testifying that she was a liar and that she was
coached by her father, and with defendant’s wife testifying that she was a liar and
challenging her description of defendant’s private parts. There was also other
corroborating evidence of her testimony at the trial, such as the individuals who
questioned why defendant and [the victim] returned home from a trip to the grocery store
without any groceries and [the victim]’s boyfriend’s testimony that he heard defendant
threaten to kill [the victim] if [s]he did not deny that anything happened.”
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The trial court found that defendant failed to establish that the victim’s recantation
constituted new evidence of actual innocence. The Motion was denied.
DISCUSSION
A. ACTUAL INNOCENCE
Defendant contends the trial court erred by denying the Motion as he showed by a
preponderance of the evidence that there was newly discovered evidence of his actual
innocence.
“Section 1473.7, subdivision (a)(2) provides in pertinent part that ‘[a] person who
is no longer in criminal custody may file a motion to vacate a conviction’ on the basis
that ‘[n]ewly discovered evidence of actual innocence exists that requires vacation of the
conviction or sentence as a matter of law or in the interests of justice.’ A motion based
on newly discovered evidence must be filed ‘without undue delay from the date the
moving party discovered, or could have discovered with the exercise of due diligence, the
evidence that provides a basis for relief under this section.’ [Citation.] Section 1473.7,
subdivision (e)(1) provides in part that ‘[t]he court shall grant the motion to vacate the
conviction ... if the moving party establishes, by a preponderance of the evidence, the
existence of any of the grounds for relief specified in subdivision (a).’ Thus, the
defendant has the burden to demonstrate entitlement to relief under section 1473.7.”
(People v. Perez (2020) 47 Cal.App.5th 994, 997 (Perez).)
In People v. Vivar (2021) 11 Cal.5th 510 (Vivar), the California Supreme Court
addressed for the first time the standard of review of section 1473.7 motions by the
appellate court in a case involving section 1473.7, subdivision (a)(1), the immigration
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consequences. “In Vivar, the court endorsed the independent standard of review.
[Citation.] Under independent review, we exercise our independent judgment to
determine whether the facts satisfy the rule of law. [Citation.] When appellate courts
engage in independent review, they should be mindful that independent review is not the
equivalent of de novo review. [Citation.] An appellate court may not simply second-
guess factual findings that are based on the trial court’s own observations. [Citation.]
Factual determinations that are based on the credibility of witnesses the trial court heard
and observed are entitled to particular deference, even though courts reviewing such
claims generally may reach a different conclusion from the trial court on an independent
examination of the evidence, even where the evidence is conflicting. [Citation.] In
section 1473.7 motion proceedings, appellate courts should similarly give particular
deference to factual findings based on the trial court’s personal observations of
witnesses.’ ” (People v. Manzanilla (2022) 80 Cal.App.5th 891, 903, citing to Vivar,
supra, 11 Cal.5th at pp. 524-528.)
The Vivar court did not state that such review also applies to review of a 1473.7,
subdivision (a)(2), claim of actual innocence. As such, it is not settled as to the proper
standard of review for section 1473.7, subdivision (a)(2), motions. In Perez, supra, 47
Cal.App.5th 994, this court reviewed the denial of a section 1473.7, subdivision (a)(2),
motion for an abuse of discretion. (Id. at p. 997.) The trial court’s ruling was correct
under both standards of review.
Initially, the trial court observed the victim at the time she testified at the hearing
and was in the best position to assess the credibility of her testimony. The trial court
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ruled that the victim’s recantation testimony was not credible as she was vague and did
not answer the court’s questions directly during the hearing. “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.” (Vivar, supra, 11
Cal.5th at pp. 527-528.) The trial court’s determination that the victim’s testimony at the
hearing was not credible is sufficient to deny the Motion.
Further, the trial court found that her credibility was also questionable given that
there were two incidents of sexual abuse to which she testified at trial. At trial, she
testified regarding the fact that defendant asked her to go to the grocery store. Instead,
they went to a park where he forced her to kiss him and orally copulate him while they
were in his car. She also testified that approximately two months later, she and her
mother stayed the night at defendant’s house. Her mother and Wife left the house. While
they were gone, defendant forced her onto the bed, put his penis inside her vagina, and
ejaculated. He threatened to kill her if she told anyone. The trial court noted she did not
address this second incident in her testimony at the hearing. Defendant responds that no
one ever asked her about the second incident. Despite no one asking the victim about the
second incident, the trial court could reasonably question why she failed to address that
issue and that it impacted her credibility.
The trial court was also concerned that, despite Father dying in 2014, which the
victim claimed liberated her, she did not come forward with her declaration until 2019.
Further, she never went to the police or district attorney, choosing to speak with
22
defendant’s counsel instead. This supported the trial court’s reluctance to accept that the
victim was truthful in recanting her trial testimony.
The trial court also properly considered that defendant may be influencing the
victim. The victim’s boyfriend testified at trial that he overheard defendant tell the
victim, who had already told some of her family members about the sexual abuse, that
she needed to deny the accusations or he would kill her. The victim also testified at trial
that after each incident, defendant threatened to kill her if she told anyone. It was
reasonable to surmise the defendant had influenced the victim to change her testimony.
Additionally, other evidence corroborated the victim’s testimony at trial, including
the victim’s testimony that there was a fire the day he kissed her in the park, and the
boyfriend overhearing defendant and the victim talk about the sexual abuse. Whether the
ruling on the Motion is under independent review or abuse of discretion, the trial court
properly determined that the recantation by the victim was not credible and did not show
by a preponderance of the evidence that defendant was innocent.
Defendant failed to demonstrate he was entitled to relief under section 1473.7 by
evidence that he was actually innocent of the charges. (Perez, supra, 47 Cal.App.5th at
p. 997.) The Motion was properly denied on this ground.
B. IMMIGRATION CONSEQUENCES OF PLEA
Defendant contends he is entitled to have the Motion granted in order to withdraw
his guilty plea on the two counts of violating section 288, subdivision (a), under section
1473.7, subdivision (a)(1), because he established by a preponderance of the evidence
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that he was neither properly advised nor did he meaningfully understand the immigration
consequences of his plea. He would not have taken the plea nor gone to trial.
Mandatory deportation from the United States is an immigration consequence
when a defendant is convicted of a crime deemed an aggravated felony under federal
immigration law. (Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188; 8 U.S.C.
§ 1227(a)(2)(iii) [aggravated felony is conclusively presumed deportable].) A violation
of section 288, subdivision (a), constitutes an aggravated felony that is a deportable
offense under federal law. (8 U.S.C. § 1101(a)(43)(A) [defining aggravated felony as
“murder, rape, or sexual abuse of a minor”].)
“To prevail under section 1473.7 [subd. (a)], 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.’ [Citation.] 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.” (People v. Espinoza (2023) 14 Cal.5th 311, 319.)
“[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 include the defendant’s ties to the United States, the importance the defendant
24
placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and
whether the defendant had reason to believe an immigration-neutral negotiated
disposition was possible.” (Vivar, supra, 11 Cal.5th at pp. 529-530.)
We independently review the decision of the trial court. (Vivar, supra, 11 Cal.5th
at pp. 527-528.)
Defendant insists that if he understood there were alternative, immigration-neutral
resolutions possible, he would have advised his counsel to negotiate an immigration-
neutral plea even if it required significant time in jail to avoid deportation. He relies on
his own declaration. He claims he has demonstrated that in 2009, he did not understand
the potential immigration consequences of going to trial and was not given proper
immigration admonitions prior to his entering guilty pleas. Defendant provides no
objective evidence to support his self-serving claims that he would not have accepted the
plea if he had been properly advised as to the possible immigration consequences.
“[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.” ’ ” (Vivar, supra, 11 Cal.5th at p. 530.) There is
no objective evidence that defendant would not have accepted the plea bargain.
Further, there is no evidence that he could have pleaded guilty to a charge that had
no immigration consequences. Defendant had been charged with two violations of
violating section 288, subdivision (b), and it is inherently unlikely that the People would
have accepted anything less than violations of section 288, subdivision (a). (See People
v. Espinoza, supra, 14 Cal.5th at p. 323 [alternative immigration-safe dispositions depend
25
on many factors, including the seriousness of the charges].) At this time, defendant had
already been convicted of a violation of section 288, subdivision (a), which subjected him
to deportation; there was no objective evidence to corroborate his factual assertions in the
Motion that he would not have accepted the plea bargain or that he could have negotiated
a plea that did not have immigration consequences.
He also insists he was never given the proper admonition by the trial court
pursuant to section 1016.5, subdivision (a). He notes that the written plea form only
advised that there “may” be immigration consequences, not that there “will” be
immigration consequences as required by section 1016.5. The People concede that the
admonition should have been given in that it was almost virtually certain defendant
would be deported based on his aggravated felony conviction. (People v. Lopez (2022)
83 Cal.App.5th 698, 712-713.) The People contend the issue has been waived due to
defendant not first seeking to vacate his guilty plea in the lower court based on the
inadequate admonition.
We need not decide the issue, as even if we were to conclude that defendant met
his burden of establishing he was not properly advised or understood the possible
immigration consequences, he still cannot show prejudice. The trial court found that
there was no prejudice based on defendant already being convicted of a deportable
offense. Defendant only contends that he would not have gone to trial if he were aware
of the immigration consequences if he were found guilty. As recognized by the People,
defendant provides no alternative to what he would have done if he had not gone to trial
or pled guilty. He fails to explain what he would have done to avoid the immigration
26
consequences. He was charged by the People and could only plead guilty or go to trial.
Further, as noted by the People, defendant does not provide a “reasonable” alternative to
which he could plead guilty to avoid the immigration consequences. Valdez declared that
he would have suggested accessory after the fact, but defendant committed his offenses
alone.
Under the totality of the circumstances, defendant cannot show there was a
reasonable probability that he would have rejected the plea if he had correctly understood
its actual or potential immigration consequences. Defendant was already convicted of a
deportable offense. He was facing two serious charges, both of which would have likely
resulted in a state prison sentence. Defendant was granted probation for three violations
of section 288, subdivision (a), and cannot show he would have rejected the plea based
on immigration consequences, especially in light of already being convicted of a
deportable offense. The trial court properly denied the Motion.
DISPOSITION
The trial court’s denial of defendant’s motion to vacate his convictions under
section 1437.7, subdivision (a)(1) and (a)(2), is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
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