Filed 8/26/26 P. v. Fonua CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A172784
v.
PELISI FOKETI FONUA, (Contra Costa County Super.
Ct. No. 05000419499)
Defendant and Appellant.
Penal Code section 1473.7 provides a mechanism for “noncitizens to
vacate convictions after they are no longer in criminal custody based on a
failure to understand adverse immigration consequences of their convictions.”
(People v. Singh (2022) 81 Cal.App.5th 147, 151–152.) Relief under section
1473.7 requires a showing that the defendant’s misunderstanding regarding
immigration consequences “ ‘constituted prejudicial error.’ ” (People v.
Carrillo (2024) 101 Cal.App.5th 1, 14 (Carrillo); § 1473.7, subd. (a)(1)1.)
When the conviction at issue was the result of a trial (not a plea),
establishing prejudicial error requires a showing that it is reasonably
probable that the defendant “would not have proceeded to a jury trial had he
understood the immigration consequences” and that the defendant’s
1 Undesignated statutory references are to the Penal Code.
1
alternative “path would have resulted in an immigration-neutral outcome.”
(People v. Avena (2026) 119 Cal.App.5th 624, 632 (Avena).)
The present case involves defendant Pelis Foketi Fonua, who was born
in Tonga and has been a lawful permanent resident of the United States
since 1990. A jury found him guilty of attempted murder and other crimes in
2005, and he was sentenced to 16 years, four months in prison.
After his release from state prison, defendant was detained by
Immigration and Customs Enforcement, at which point he learned his
criminal convictions from 2005 subjected him to deportation. Defendant filed
a motion to vacate his convictions under section 1473.7, arguing that, if he
had known before his criminal trial that the charged offenses would result in
deportation, he “could have directed [his] attorneys to try to negotiate an
immigration safe disposition to avoid adverse immigration consequences.”
Opposing the motion, the People argued defendant failed to show prejudice
because he failed to show there was an alternative immigration-neutral
disposition that the prosecution would have agreed to.
The trial court denied defendant’s motion, finding that defendant failed
to show prejudicial error. Defendant appeals from the denial of his motion to
vacate. We affirm.
FACTS AND PROCEDURAL HISTORY
Underlying Criminal Convictions
Charges
Defendant was charged with attempted premediated murder (§§ 187,
664; count 1), two counts of infliction of corporal injury upon a spouse
(§ 273.5, subd. (a); counts 2 and 4), two counts of felony child endangerment
(§ 273a, subd. (a); counts 3 and 6), and assault by force likely to produce great
bodily injury (former § 245, subd. (a)(1), as amended by Stats. 1999, ch. 129,
2
§ 1 (now § 245, subd.(a)(4), see Stats. 2011, ch. 183, § 1); count 5). It was
further alleged that defendant personally used a deadly or dangerous weapon
(§ 12022, subd. (b)(1)) and personally inflicted great bodily injury under
circumstances involving domestic violence (§ 12022.7, subd (e)) in the
commission of counts 1 and 2. The first three counts arose from conduct that
occurred on August 31, 2004, and the last three counts involved conduct that
occurred on February 8, 2004.
Trial Evidence
Evidence of the following was presented at trial.2 Defendant and K.S.
were married in May 2000 and divorced in October 2004. They had three
children together.
On the evening of February 7, 2004, K.S., defendant, and their children
went to the apartment of K.S.’s cousin. K.S. and her cousin said they were
going out to get milk, but they decided to go to a club and later to a casino.
The two women returned early in the morning of February 8, and K.S. lay
down on the living room floor next to her two older children, who were asleep.
Defendant and their baby were also sleeping in the living room. About 30
minutes after K.S. and her cousin returned, defendant started yelling at K.S.
and punching her. He continued striking K.S. even as she rolled onto their
daughter. Defendant kicked K.S. in the face next to her mouth, then took her
cell phone and broke it. Defendant also took the house phone and told K.S.
he did not want her to call the police on him.
2 There is no dispute about the material facts of defendant’s offenses.
In response to defendant’s motion to vacate, the People filed an opposition
including a description of the crimes that largely tracked the recitation of
evidence at trial from the appellate opinion in defendant’s direct appeal,
(People v. Fonua (Dec. 11, 2008, A114163) [nonpub. opn.]). Defendant did not
object to the People’s description of the offenses below and, on appeal, he
includes most of the People’s facts in his opening brief.
3
Later that morning, defendant became annoyed with their son and
threw him against a chair. K.S. yelled at defendant not to hit their son and,
if he was mad at her, to take it out on her. Defendant grabbed a knife and
threatened that if K.S. called the police, he would make her jump off the
third-story balcony of the apartment. Defendant repeatedly threatened that
he would hurt K.S. and her family if she called the police. A few days later, a
Contra Costa County Sheriff’s officer interviewed K.S. and her cousin about
the incident and documented K.S.’s head injuries.
In August 2004, defendant and K.S. were separated and in the process
of getting divorced, and K.S. was staying at an apartment with a friend. On
the evening of August 31, defendant and K.S. began arguing because K.S.
would not allow defendant’s children from a previous marriage to stay with
her at the apartment. Around 11:00 p.m., defendant was at the apartment
with K.S. and her friend; defendant wanted to stay, but K.S. told him she
would call the police if he did not leave. Defendant grabbed a knife from the
kitchen and began stabbing K.S. Defendant said he had warned her that if
she ever called the cops again, he would kill her.
K.S.’s friend left the apartment for help. Defendant continued to stab
and punch K.S. K.S. ran to a bedroom, but defendant grabbed her by the hair
and dragged her to the living room. He threw her on the floor near where
their baby was playing. K.S. was on her stomach, and defendant was on top
of her punching her.
K.S.’s friend returned with a neighbor, who testified that when she
opened the door, she saw blood everywhere, K.S lying on the floor in a fetal
position, a baby crawling toward her, and defendant standing over K.S.
striking her as if stabbing her. The neighbor screamed for help. Defendant
went to the kitchen, and K.S. fled the apartment. Defendant grabbed K.S. by
4
her hair, trying to drag her back into the apartment. Defendant hit K.S. in
the head with a kitchen pot as he followed her out of the apartment. Another
neighbor grabbed a chair and struck defendant with it. Defendant then took
the chair and used it to hit K.S. until the chair broke. K.S. used her arm to
shield herself from the blows, she felt her arm break, and she fell to the
ground. Defendant finally stopped hitting her and fled the scene.
Defendant later told a family friend that he may have just killed his
wife. K.S. suffered lacerations near her right jawbone, on the left side of her
mouth, above her left ear, on the left side of her neck, and multiple
lacerations on her scalp, chest, right forearm and left hand. Her left forearm
was fractured. K.S. was taken to a hospital and required surgeries to address
her wounds.
Jury Verdict and Sentence
Regarding the charges related to the August 31 incident, the jury found
defendant guilty of attempted murder (count 1), infliction of corporal injury
upon a spouse (count 2), and felony child endangerment (count 3) and found
true the enhancement allegations of personal use of a deadly or dangerous
weapon and infliction of great bodily injury. The jury did not find true the
allegation that defendant attempted murder with premeditation and
deliberation. As to the charges related to the February 8 incident, the jury
found defendant guilty of infliction of corporal injury upon a spouse (count 4)
and assault by force likely to produce great bodily injury (count 5) but not
guilty of child endangerment (count 6).
The trial court sentenced defendant to 16 years, four months in prison
composed of the upper term of nine years for count 1, the attempted murder,
plus consecutive terms of one year for the weapon enhancement and four
years for the great bodily injury enhancement; a consecutive term of one year,
5
four months for count 3, child endangerment; and a consecutive term of one
year for count 4, infliction of corporal injury upon a spouse. Punishment for
the remaining counts was stayed under section 654.
Motion to Vacate Under Section 1473.7
In January 2025, defendant filed a “motion to vacate judgment and
conviction pursuant to Penal Code section 1473.7.”3 (Capitalization omitted.)
Declarations supporting defendant’s motion provided evidence of the
following.
Defendant was born in Tonga in 1964. He first entered the United
States in 1981, and he has been a lawful permanent resident since 1990. He
is married to an American citizen, and he has 32 children and 62
grandchildren, who are all American citizens. He is currently in ICE custody.
An immigration judge ordered defendant deported, and defendant has
appealed that decision.
In the criminal case, defendant was represented first by a private
attorney, Paul Puri, and later by an attorney from the alternate defender’s
office, Wayne Anderson. The archived prosecution file of the case indicates
that, on October 26, 2004, the prosecutor conveyed an unsolicited offer to
defendant’s first attorney Puri to resolve the case with the terms that
defendant would plead to one count of attempted murder without
premeditation and deliberation, admit the alleged enhancements (personally
inflicting great bodily injury and personal use of a weapon), and plead to a
3 Previously, defendant filed pro. per. filings attempting to have his
convictions dismissed and vacated under section 1016.5. At a hearing in May
2024, the court provisionally appointed attorney Ali Saidi, who stated the
appropriate procedural mechanism for defendant’s immigration-consequences
issue was a motion under section 1473.7. (Section 1016.5 permits withdrawal
of a plea when the defendant did not know the immigration consequences,
but defendant did not enter a plea in this case.)
6
misdemeanor violation of contracting without a license in an unrelated case
for a determinate sentence of 12 years. In exchange, the prosecution would
dismiss the remaining counts including all charges from the February 8
incident. However, neither of his attorneys ever told defendant about the
plea offer.
When defendant discussed his defense with his attorneys, neither ever
advised him of the immigration consequences he was facing. Defendant
declared, “Neither Puri nor Anderson explained that the charges were
‘aggravated felonies,’ ‘crimes of violence,’ deportable crimes of domestic
violence, and deportable crimes involving moral turpitude. If I had known
that even if I was acquitted of the life charges[4] but convicted of some of the
lesser felonies, I would be subject to mandatory deportation for aggravated
felonies, I would have directed them to do everything they could to try to
negotiate an immigration safe disposition on my behalf. Not being separated
from my family and the country I have known for over 40 years since I was
brought here as a child has always been a priority for me and if I had been
properly advised, I would not have advanced to trial, but would have sought a
path to remain in the United States with my family.”
Defendant’s attorney for the motion vacate, Saidi, stated in his
declaration that he has over 20 years’ experience as a defense attorney in
Contra Costa County representing indigent and immigrant clients in
negotiating felony cases with the Contra Costa County Office of the District
Attorney and that he had “practical experience at the intersection of criminal
and immigration law by practicing in this realm exclusively for more than
two decades before California Superior Courts, the Executive Office of
4 Defendant was charged with only one “life charge,” attempted
premeditated murder (§ 664, subd. (a)).
7
Immigration Review, the Board of Immigration Appeals, and the Ninth
Circuit Court of Appeals.” Saidi stated that defendant’s convictions rendered
him “permanently deportable” because the offenses of attempted murder and
infliction of corporal injury upon a spouse are “ ‘aggravated felonies’ under
United States immigration law” and felony child endangerment “is a
deportable crime of child abuse.”
The attorney further stated that it is common in Contra Costa County
cases with a charge of attempted murder “for that charge to be dismissed as
part of a negotiated disposition, usually involving pleas to other lesser
charges with the crux of the negotiation revolving around the amount of
prison time and the number of violent or serious strike felony charges for
purposes of priorability under California’s three strikes law.” He provided
data of “PC 187/664 dockets [i.e., cases charging attempted murder] filed by
the office of the District Attorney” from 2010 to 2024, which showed that “out
of 1254 instances of initially charged [attempted murder] counts during that
nearly 15 year period of time, the [attempted murder] count was dismissed
61% of the time (762) as opposed to convictions for [attempted murder] via
plea or jury trial only 21% (265) of the time.”5
Saidi opined that, given defendant’s “insignificant prior criminal
history,” the unsolicited offer from the prosecutor in this case, “and the direct
consequence of deportation and family separation for Mr. Fonua, . . . there
was a strong possibility of obtaining an immigration-mitigated offer in this
case had Mr. Fonua been properly advised and had his lawyers attempted to
defend against deportation via negotiation.” He stated that defendant’s
5 Saidi stated that, of the remaining cases, “16% (200) of those counts
remain open or were consolidated, and there were acquittals or findings of
Not Guilty by Reason of Insanity in 2% of the cases (27).”
8
criminal defense attorney could have fashioned a counter-offer that would
have met the “prosecutorial objectives of punishment and priorability
expressed in the DA’s original offer (a single strike felony for 12 years in state
prison) yet that would defend against the aggravated felony and deportation
consequences,” suggesting first-degree burglary or kidnapping as a potential
principal offense coupled with other offenses. For example, he suggested
defense counsel could have offered kidnapping (§ 207) with an upper term of
eight years as the principal offense, plus two counts of felony false
imprisonment (§ 236), one felony count of carrying a concealed dirk or dagger
(§ 21310), two counts of misdemeanor battery of a spouse (§ 243, subd. (e)(1)),
and three counts of misdemeanor child endangerment (§ 273a, subd. (b)) for a
cumulative sentence of 12 years in prison.
The People opposed the motion to vacate on the ground defendant
“failed to show that there was an alternative disposition to which the
prosecution would have agreed.” The People argued, “Although the Defense
alleges . . . attempted murder charges are commonly dismissed through the
plea bargaining process, each case is fact-specific. Here, Mr. Fonua stabbed,
punched and assaulted the victim with a kitchen pot and a chair, breaking
her arm and causing serious lacerations to her face. The victim was his wife
and the mother of his three children. He did this in the presence of their
youngest child, months after having committed another serious assault in
front of their children. He fled the scene and told a friend he may have just
killed his wife. [¶] It is speculative that the prosecution would have accepted
a counter-offer including kidnapping or first-degree burglary along with other
immigration-neutral charges given the deeply personal and extremely violent
nature of the conduct at issue in this case.”
9
At the hearing on defendant’s motion, the trial court observed that
there was sufficient evidence defendant was not properly advised about the
immigration consequences of the criminal charges and, “the question really is
prejudice.” The court took the matter under submission.
Following the hearing, defendant submitted supplemental briefing and
supporting exhibits, including a Contra Costa County criminal case summary
which appears to show that a defendant, D.V., was initially charged with two
counts of attempted murder with enhancement allegations of personal
discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) in
October 2020, and D.V. entered pleas to kidnapping and possession of an
unregistered firearm and the attempted murder charges were dismissed in
December 2021. Defendant argued that the disposition in D.V.’s case “was
resolved to an immigration-neutral offer of carrying a firearm,” and this
showed “there was a least a mere reasonable probability that Mr. Fonua
could have received an immigration-neutral offer for his enhancement of use
of deadly or dangerous weapon.”6
On February 13, 2025, the trial court filed a written order denying
defendant’s motion to vacate. The court found, “Despite counsel’s valiant
efforts to demonstrate that the majority of cases charged as attempted
murders in Contra Costa County do not result in attempted murder
convictions, there is simply no evidence that there was any likelihood
whatsoever that the People would have offered, or the court would have
6 Defendant also submitted a chart appearing to show the dispositions
of 22 cases from 2020 to 2024 in which defendants initially charged with
attempted murder with a firearm enhancement under section 12022.53,
subdivision (d), eventually resolved their cases with pleas to lesser crimes,
most often some type of assault with a deadly weapon or force likely to cause
great bodily injury (§ 245) plus an enhancement or additional weapon-related
offense.
10
accepted a plea to charges that did not include” attempted murder, domestic
violence, assault with a deadly weapon, or child endangerment. The court
noted defendant’s case “was not solely an attempted murder case and there
was no kidnapping alleged”; the case involved myriad charges, two separate
incidents, and no “proof problems for the majority of the[] charges—evidenced
by the jury verdicts of guilty” for attempted murder, two counts of infliction of
corporal injury on a spouse with enhancements for great bodily injury and
use of a deadly weapon, child endangerment, and assault by force likely to
produce great bodily injury.
DISCUSSION
A. Applicable Law
Section 1473.7 permits “[a] person who is no longer in criminal custody
. . . [to] file a motion to vacate a conviction or sentence” on the ground “[t]he
conviction or sentence is legally invalid due to prejudicial error damaging the
moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences
of a conviction or sentence.” (§ 1473.7, subd. (a)(1).)
When section 1473.7 originally took effect in 2017, the law provided
relief only in cases where the conviction resulted from a plea. (Stats. 2016,
ch. 739, § 1 [allowing a motion to vacate where “prejudicial error damag[ed]
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”]; People v. Rodriguez (2021) 68
Cal.App.5th 301, 308.)
Effective January 1, 2022, however, the Legislature “ ‘expand[ed] the
category of persons able to seek to vacate a conviction or sentence as legally
invalid’ ” to include “ ‘a person who was found guilty after a trial.’ ” (Carrillo,
11
supra, 101 Cal.App.5th at p. 13, quoting legislative analysis.) The
Legislature did this by amending section 1473.7 to replace the phrase “plea of
guilty or nolo contendere” with “conviction or sentence.” (Ibid.; Stats. 2021,
ch. 420, § 1.)
To succeed in having a conviction vacated under section 1473.7, a
defendant must show, first, that he or she did not meaningfully understand
the immigration consequences of the conviction and, second, that this
misunderstanding resulted in prejudice. (People v. Hernandez (Aug. 13,
2026) __ Cal.5th __ [2026 WL 2343195]; Carrillo, supra, 101 Cal.App.5th at p.
14.) “[A] defendant who decides to go to trial, loses, and is sentenced can
establish prejudice for purposes of section 1473.7, subdivision (a)(1) by
showing there is a reasonable probability that (1) he or she would have done
something differently—that is, would have taken another ‘path’ [citation]—
and (2) the alternate path would have resulted in an immigration-neutral
outcome.” (Carillo, at p. 20; accord Avena, supra, 119 Cal.App.5th at p. 632.)
A defendant seeking to vacate a conviction under section 1473.7 has the
burden to prove the grounds for relief by a preponderance of the evidence.
(§ 1473.7, subd. (f)(1).)
B. Standard of Review
We independently review the denial of a motion to vacate under section
1473.7. (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)
“ ‘ “[U]nder independent review, an appellate court exercises its independent
judgment to determine whether the facts satisfy the rule of law.” ’ ” (Id. at
pp. 319–320.) When a motion is decided based solely on written declarations
and other documents, “there is no basis for deference, and ‘it is for the
appellate court to decide, based on its independent judgment, whether the
facts establish prejudice under section 1473.7.’ ” (Id. at p. 320.)
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C. Analysis
We accept defendant’s declaration that he did not meaningfully
understand the immigration consequences of the charges he faced when he
went to trial in 2005. The issue is whether defendant has shown his lack of
understanding constituted prejudicial error. As we have described,
prejudicial error under section 1473.7 requires the defendant to show “a
reasonable probability that he would not have proceeded to a jury trial had
he understood the immigration consequences” and “a reasonable probability
that such a path would have resulted in an immigration-neutral outcome.”
(Avena, supra, 119 Cal.App.5th at p. 632.)
Defendant has not shown prejudicial error. We have considered the
seriousness of defendant’s conduct, the strength of the prosecution’s case, and
the lack of comparable offenses without immigration consequences, and we
accept defendant’s attorney’s representation that his prior criminal history is
“insignificant.”7 We conclude there is no reasonable probability that the
prosecution would have agreed to, and the trial court would have accepted,
an immigration-neutral disposition on the facts of this case. Multiple
witnesses established that defendant repeatedly stabbed his wife with a
kitchen knife, grabbed her by the hair and dragged her, punched her on the
floor while their baby was very close to her, hit her head with a kitchen pot,
7 “To ascertain prejudicial error, [the court] . . . consider[s] ‘whether
alternative, immigration-safe dispositions were available at the time of the
defendant’s plea [or decision to go to trial]. Factors relevant to this inquiry
include the defendant’s criminal record, the strength of the prosecution’s
case, the seriousness of the charges or whether the crimes involved
sophistication, the district attorney’s charging policies with respect to
immigration consequences, and the existence of comparable offenses without
immigration consequences.’ ” (People v. Padron (2025) 109 Cal.App.5th 950,
964, quoting Espinoza, supra, 14 Cal.5th at p. 323.)
13
hit her with a chair until the chair broke, and broke her arm and left her
with lacerations on her jaw, mouth, scalp, neck, chest, arm, and fingers.8
Defendant engaged in this conduct months after he punched and kicked his
wife in front of their children, threatened her with a knife, and warned that
he would hurt her and her family if she called the police on him. We agree
with the People that, given the extremely violent nature of defendant’s
conduct, it is not reasonably probable that he could have reached a
disposition acceptable to the prosecution and the trial court that included not
one of the offenses of attempted murder, infliction of corporal injury on a
spouse, child endangerment, or assault by force likely to produce great bodily
injury and that lacked any enhancement or crime including an element of
personal infliction of great bodily injury. Any one of these offenses would
have had adverse immigration consequences had they been part of a plea
disposition.
On appeal, defendant argues that prosecutors have “ethical obligations
during plea bargaining” to consider immigration consequences. He cites a
law journal article that describes a 2010 report and recommendation of the
Criminal Justice Section of the American Bar Association, which “urges
prosecutors and defense attorneys to work together whenever possible ‘to
identify a plea—to a felony or misdemeanor offense—that is roughly
equivalent to the one charged but is safer for immigration purposes.’ ”
(Altman, Prosecuting Post-Padilla: State Interests and the Pursuit of Justice
8 In the opinion affirming defendant’s convictions on direct appeal from
2008, an earlier panel in this division described the evidence supporting the
charges of attempted murder, infliction of corporal injury upon a spouse, and
felony child endangerment arising from the August 31, 2004, incident as
“overwhelming” and referred to the “overwhelming evidence documenting the
bloody crime scene and [K.S.]’s extensive injuries.”
14
for Noncitizen Defendants (2012) 101 Geo. L.J. 1, 49.) We agree with this
recommendation, and, indeed, prosecutors in California are now required, “in
the interests of justice, . . . [to] consider the avoidance of adverse immigration
consequences in the plea negotiation process as one factor in an effort to
reach a just resolution.” (§ 1016.3, subd. (b), added by Stats. 2015, ch. 705,
§ 2.) But the immigration-neutral charges defendant has suggested as an
alternative disposition—burglary, kidnapping, false imprisonment, carrying
a concealed dagger, misdemeanor battery, and misdemeanor child
endangerment—are not “roughly equivalent” to the violent crimes defendant
was charged with and proved to have committed against his wife and child.
Moreover, there is no evidence in the record that defendant committed a
burglary or concealed a dagger.
We have independently reviewed the record, and we conclude
defendant has failed to show prejudicial error as required under section
1473.7. Accordingly, we affirm the trial court’s order denying defendant’s
motion to vacate his convictions.
DISPOSITION
The order denying defendant’s motion to vacate under section 1473.7 is
affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P. J.
_________________________
Desautels, J.
A172784, People v. Fonua
16