Filed 9/1/26 P. v. Higuera CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090277
Plaintiff and Respondent,
(Super. Ct. No. SC060950A)
v.
FERNANDO DUARTE HIGUERA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Andrew
Kendall, Judge.
Sanger, Hanley, Sanger & Avila and Sarah S. Sanger, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench,
Jessica A. Eros and Brittany M. Gunter, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Meehan, J. and DeSantos, J.
INTRODUCTION
In 1995, appellant and defendant Fernando Duarte Higuera, a lawful permanent
resident of the United States with no criminal record, entered a no contest West plea1 to
one count of committing a lewd or lascivious act on a child under the age of 14 years.
(Pen. Code, § 288, subd. (a).)2 In 2025, after defendant learned from an immigration
attorney that his conviction bars him from becoming a United States citizen and mandates
deportation, he retained an attorney to assist him in seeking postconviction relief.
Through counsel, defendant filed a statutory motion to vacate his conviction due to
prejudicial error affecting his ability to meaningfully understand the immigration
consequences of his plea. (§ 1473.7, subd. (a)(1).)
At the evidentiary hearing on the motion, the superior court recognized the plea in
this case was entered prior to the decision in Padilla and concluded defendant was not
properly advised of the immigration consequences of his plea. (Padilla v. Kentucky
(2010) 559 U.S. 356, 374 (Padilla) [6th Amend. requires counsel to advise client whether
plea carries risk of deportation].) However, the court found no prejudicial error because
it was not persuaded defendant would have acted differently had he been properly
advised of the immigration consequences. (People v. Espinoza (2023) 14 Cal.5th 311,
319 (Espinoza).)
Defendant timely appealed. He claims that he has met his burden of
demonstrating prejudicial error under the totality of the circumstances, entitling him to
relief from his conviction. (Espinoza, supra, 14 Cal.5th at pp. 320–321.) He requests
1 A plea under People v. West (1970) 3 Cal.3d 595, 600–601 (West) “allows a defendant to
plead guilty to a charge without admitting that he or she committed the crime alleged.” (People v.
Riddles (2017) 9 Cal.App.5th 1248, 1250, fn. 1; accord, In re Alvernaz (1992) 2 Cal.4th 924, 932 [no
admission to factual basis].) The parties stipulated that the preliminary hearing transcript provided a
factual basis for the plea.
2 All further statutory references are to the Penal Code.
2.
this court vacate the superior court’s order denying his motion and remand this matter
with instructions to the superior court to grant the motion.
The People dispute any entitlement to relief. They argue defendant fails to show
“he did not meaningfully understand the immigration consequences of his plea”
(Espinoza, supra, 14 Cal.5th at p. 319), and, if it is assumed he met the first prong of the
inquiry, he fails to “show that his misunderstanding constituted prejudicial error” (ibid.).
We have independently reviewed the record and conclude defendant has
demonstrated entitlement to relief. (Espinoza, supra, 14 Cal.5th at pp. 319–321; People
v. Vivar (2021) 11 Cal.5th 510, 527–528 (Vivar).)3 The superior court’s order denying
defendant’s section 1473.7 motion is vacated and this matter is remanded with
instructions to the court to grant the motion following the issuance of the remittitur. To
expedite proceedings, the parties may stipulate to the immediate issuance of the
remittitur. (People v. Carrillo (2024) 101 Cal.App.5th 1, 33, fn. 10 (Carrillo).)
DISCUSSION
I. Legal Principles
1. Section 1473.7, Subdivision (a)(1)
In response to the absence of a legal remedy for individuals who are no longer in
custody but find themselves facing unanticipated immigration consequences resulting
from a guilty or no contest plea entered years earlier, the Legislature added
section 1473.7 to the Penal Code, effective January 1, 2017. (Vivar, supra, 11 Cal.5th at
pp. 522–523; Carrillo, supra, 101 Cal.App.5th at p. 12.) The statute was subsequently
amended to broaden eligibility for relief beyond the entry of a plea. (Carrillo, supra, at
p. 13, citing Stats. 2021, ch. 420, § 1 [eff. Jan. 1, 2022].) In relevant part, the statute now
provides that individuals may file a motion for relief from a conviction or sentence on the
3 Although the decision is not yet final, our opinion is also consistent with the California
Supreme Court’s recent decision in People v. Hernandez (2026) ___ Cal.5th ___, ___ [2026
Cal.Lexis 4212, *13–14].)
3.
basis that “[t]he conviction or sentence is legally invalid due to prejudicial error
damaging the moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of a
conviction or sentence.” (§ 1473.7, subd. (a).) Relief is not contingent upon establishing
ineffective assistance of counsel. (Ibid.)
“A defendant must satisfy three statutory requirements to be eligible to seek relief
from a ‘legally invalid’ conviction or sentence under section 1473.7, subdivision (a)(1).”
(Carrillo, supra, 101 Cal.App.5th at p. 13.) The movant must show he is “no longer in
criminal custody” (§ 1473.7, subd. (a)), and “the conviction or sentence being challenged
is currently causing or has the potential to cause removal or the denial of an application
for an immigration benefit, lawful status, or naturalization” (id., subd. (f)(1)). (Carrillo,
supra, at p. 13.) The motion must also be timely.4 (Carrillo, supra, at p. 13.)
“To prevail under section 1473.7, a defendant must demonstrate that his
conviction is ‘legally invalid due to prejudicial error damaging [his or her] ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of a conviction or sentence.’ (§ 1473.7, subd. (a)(1).)
The defendant must first show that he did not meaningfully understand the immigration
consequences of his plea. Next, the defendant must show that his misunderstanding
constituted prejudicial error. ‘[P]rejudical error … means demonstrating a reasonable
4 Section 1473.7, subdivision (b), provides: “(1) Except as provided in paragraph (2), a motion
pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the
individual filing the motion is no longer in criminal custody.
“(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed
if it was not filed with reasonable diligence after the later of the following:
“(A) The moving party receives a notice to appear in immigration court or other notice from
immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of
an application for an immigration benefit, lawful status, or naturalization.
“(B) Notice that a final removal order has been issued against the moving party, based on the
existence of the conviction or sentence that the moving party seeks to vacate.”
4.
probability that the defendant would have rejected the plea if the defendant had correctly
understood its actual or potential immigration consequences.’” (Espinoza, supra, 14
Cal.5th at p. 319, quoting Vivar, supra, 11 Cal.5th at p. 529.)
We evaluate prejudicial error under the totality of the circumstances. (Espinoza,
supra, 14 Cal.5th at p. 320, citing Vivar, supra, 11 Cal.5th at p. 529.) “‘Factors
particularly relevant to this inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the defendant’s priorities in
seeking a plea bargain, and whether the defendant had reason to believe an immigration-
neutral negotiated disposition was possible.’” (Espinoza, supra, at p. 320, quoting Vivar,
supra, at pp. 529–530.) “[T]he defendant’s probability of obtaining a more favorable
outcome if he had rejected the plea [and] the difference between the bargained-for term
and the likely term if he were convicted at trial” are also relevant. (Espinoza, supra, at
p. 320, citing People v. Martinez (2013) 57 Cal.4th 555, 564 (Martinez).) “These factors
are not exhaustive, and no single type of evidence is a prerequisite to relief.” (Espinoza,
supra, at p. 321.)
“A defendant must provide ‘“‘objective evidence’”’ to corroborate factual
assertions. (Vivar, supra, 11 Cal.5th at p. 530.) Objective evidence includes facts
provided by declarations, contemporaneous documentation of the defendant’s
immigration concerns or interactions with counsel, and evidence of the charges the
defendant faced.” (Espinoza, supra, 14 Cal.5th p. 321, citing & quoting Vivar, supra, at
pp. 530–531 & Lee v. United States (2017) 582 U.S. 357, 358.)
2. Standard of Review
On appeal, we “apply independent review to evaluate whether a defendant has
demonstrated a reasonable probability that he would have rejected the plea offer had he
understood its immigration consequences.” (Espinoza, supra, 14 Cal.5th at p. 319, citing
Vivar, supra, 11 Cal.5th at p. 527.) We exercise “‘“independent judgment to determine
whether the facts satisfy the rule of law”’” (Espinoza, supra, at p. 320), and defer “to the
5.
trial court’s factual determinations if they are based on ‘“‘the credibility of witnesses the
[superior court] heard and observed’”’” (ibid.). However, “when[, as in this case,] the
trial court’s findings ‘derive entirely from written declarations and other documents,’ the
trial court and the reviewing court ‘“are in the same position,”’ and no deference is
owed.” (Ibid., quoting Vivar, supra, at p. 528.)
II. Procedural Background
Defendant was born in Mexico in 1959, but has lived in the United States since at
least 1984, and he is a lawful permanent resident.5 In November 1994, defendant was
arrested after his sister-in-law reported to law enforcement that he touched his 12-year-
old niece inappropriately the day before. Defendant allegedly stopped his vehicle while
driving his niece home, hugged her, kissed and sucked on her ear lobe, and touched her
breast over her clothing two or three times. Defendant’s niece reportedly confirmed the
allegations to investigating deputies, and defendant reportedly admitted the allegations to
them, but stated he touched his niece’s breast several months earlier and in November, he
only hugged and kissed her.
That month, defendant was charged by complaint with two counts of committing a
lewd or lascivious act on a child under the age of 14 years, based on the November 1994
incident and an incident alleged to have occurred between July and October 1994.
(§ 288, subd. (a).) In January 1995, the prosecution filed an information charging
defendant with one count of violating section 288, subdivision (a), based on the
November 1994 incident.
In March 1995, during jury selection, defendant withdrew his not guilty plea and,
pursuant to West, entered a no contest plea to one count of committing a lewd or
lascivious act on a child under the age of 14 years. (§ 288, subd. (a).) In accepting the
5 In his declaration, defendant attests he has lived in this country since 1984. The probation
report, prepared in 1995, reflects he arrived in 1980 and includes an employment history from 1981
to 1995. This discrepancy is not material to resolution of defendant’s claim.
6.
plea, the trial court advised defendant the sentencing range was three, six, or eight years
in prison, probation was possible, and it was a registerable offense under section 290.
The court also advised defendant, in accordance with section 1016.5, “[I]f you are not a
citizen of the United States, an entry of this no contest plea would have the effect of
deportation, exclusion from admission and denial of naturalization pursuant to the laws of
the United States. Do you understand that, sir?” Defendant responded, “yes.”
In May 1995, following a report on defendant’s mental condition under
section 288.1 indicating he was not a threat to society or the victim, and he was amenable
to counseling, defendant was sentenced to formal probation for a period of five years,
with one year in jail.
In August 2022, the superior court granted defendant’s petition for termination
from the sex offender registry under section 290.5.
In February 2025, after defendant consulted with an immigration attorney about
becoming a United States citizen, he learned his conviction barred citizenship and
mandated deportation. Defendant was referred to another attorney, Richard R. Rivera,
who determined defendant’s conviction was both a crime of moral turpitude and an
aggravated felony, rendering him deportable. In May 2025, pursuant to section 1473.7,
subdivision (a)(1), defendant filed a motion seeking to vacate the judgment based on
prejudicial error affecting his ability to understand the immigration consequences of his
plea. The motion is supported by defendant’s declaration, Mr. Rivera’s declaration, a
transcript from the 1995 plea hearing, the superior court’s 2022 order terminating his sex
offender registration requirement, an employment verification letter covering a period of
almost 11 years, and 16 character reference letters.6
6 Defendant was employed between January 2014 and November 2024 as a full-time
commercial driver.
7.
The prosecution opposed the motion, but did not submit any supporting evidence
other than the 1995 plea transcript.
Defendant filed a reply and, in July 2025, the superior court held a hearing on the
motion. The parties did not offer testimony or other additional evidence. The court
recognized the plea was entered prior to the United States Supreme Court’s seminal
decision in Padilla and found that defendant was not adequately advised of the
immigration consequences, although the court equivocated on whether defendant was
entirely uninformed given the section 1016.5 advisement. The court was not persuaded
that defendant would have been offered an immigration-safe plea given the charge he
faced or that he would have acted any differently had he been accurately advised of the
immigration consequences. Therefore, the court found defendant did not suffer prejudice
from the error and denied the motion.
Defendant timely appealed. He argues his motion was timely, a consequence of
his conviction is mandatory removal from the United States, he was not properly advised
of the immigration consequences of his plea, and the error was prejudicial. The People
do not dispute that defendant is eligible to seek relief under section 1473.7, subdivision
(a)(1).7 (Carrillo, supra, 101 Cal.App.5th at p. 13.) They contend that given the superior
court’s admonition on immigration consequences, defendant fails to show, by a
preponderance of the evidence, that he misunderstood the consequences of his plea and,
in any event, he fails to demonstrate he suffered prejudice.
7 Defendant submits evidence, via declaration, that section 288, subdivision (a), is a crime of
moral turpitude as well as an aggravated felony. We observe that section 288, subdivision (a), was
categorized as an aggravated felony when Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (Pub.L. No. 104–208 (Sept. 30, 1996) 110 Stat. 3009)
(IIRIRA), postplea. (United States v. Baron-Medina (9th Cir., 1999) 187 F.3d 1144, 1146–1147
[§ 288, subd. (a), conviction qualifies as sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A),
defining aggravated felonies]; Aragon-Ayon v. I.N.S. (9th Cir., 2000) 206 F.3d 847, 852–853
[aggravated felony definition applies to convictions entered before effective date of IIRIRA].)
However, the People do not dispute that defendant’s crime was one of moral turpitude. (Carrillo,
supra, 101 Cal.App.5th at p. 15.)
8.
III. Analysis
A. Meaningful Understanding of Immigration Consequences
Although the superior court expressed some skepticism given the section 1016.5
advisement, it accepted defendant’s argument that he was not adequately advised of the
immigration consequences given his pre-Padilla plea. The People, however, dispute that
defendant meets his burden at the first step. They rely on the court’s statutory
advisement, their characterization of his motion as supported by nothing more than his
self-serving declaration, and the decision in Abdelsalam. (People v. Abdelsalam (2022)
73 Cal.App.5th 654 (Abdelsalam).)
“The focus of this inquiry is the defendant’s own error.” (Carrillo, supra, 101
Cal.App.5th at p. 16, citing People v. Mejia (2019) 36 Cal.App.5th 859, 871.) Thus, “the
key is the mindset of the defendant and not what an objectively reasonable person would
have understood under the circumstances.” (Carrillo, supra, at p. 16, italics added, citing
Mejia, supra, at p. 871 & People v. Alatorre (2021) 70 Cal.App.5th 747, 769 (Alatorre).)
Defendant “is the only one with direct access to his state of mind” (Carrillo, supra, at
p. 17), but “[a] defendant’s assertion as to his or her state of mind is not accepted at face
value by courts evaluating a section 1473.7 motion. Such assertions must be
corroborated with objective evidence.” (Ibid.)
Defendant attests that his attorney, identified in the plea transcript as George A.
Boyle, was unable to reach a resolution with the prosecutor, the matter was set for trial,
and on day two of trial, his attorney informed him he could plead no contest in exchange
for a chance at probation and jail time rather than prison time. Defendant attests his
attorney never discussed citizenship or immigration consequences with him and never
warned him that pleading to the charge would subject him to mandatory deportation.
There is no other evidence in the record concerning what Mr. Boyle did or did not discuss
with defendant, and defendant’s postconviction relief counsel, Mr. Rivera, attested that
file material from Mr. Boyle is not available. Defendant may not be faulted for the
9.
absence of this information, but this is particularly so where, as here, trial counsel is
deceased.8 (See Espinoza, supra, 14 Cal.5th at p. 325 [“[a] party seeking relief under
section 1473.7 is not required to provide the declaration of plea counsel”]; accord, People
v. Padron (2025) 109 Cal.App.5th 950, 962 (Padron).)
During the change of plea, the superior court admonished defendant that his plea
would have immigration consequences if he was not a citizen, in accordance with
section 1016.5, and at the end of the entire plea colloquy, the court asked if defendant had
enough time to discuss the plea and its consequences with Mr. Boyle. Defendant
responded, “Yes.” The court did not specifically ask at that juncture if defendant, who
was relying on a Spanish interpreter, had discussed the immigration consequences with
Mr. Boyle, and the court did not ask Mr. Boyle if his client understood the immigration
consequences. This is understandable given the pre-Padilla posture of the proceeding,
but, regardless, “depending on the surrounding circumstances, even a trial court’s
warning that deportation ‘“will result”’ is not a categorical bar to relief.” (People v.
Lopez (2021) 66 Cal.App.5th 561, 577 (Lopez), quoting People v. Camacho (2019) 32
Cal.App.5th 998, 1011, fn. 8 (Camacho); accord, People v. Curiel (2023) 92 Cal.App.5th
1160, 1175.)
In the context of section 1018, which permits a defendant to move to withdraw his
or her plea, the California Supreme Court concluded that “the standard [section 1016.5]
advisement—given to all criminal defendants in California who plead guilty to any
offense other than an infraction—that his or her criminal conviction ‘may’ have adverse
immigration consequences” does not bar a defendant from seeking relief from his plea on
8 We take judicial notice of the fact that there is only one match for “George A. Boyle” on the
State Bar of California’s official website. The website reflects that George Arthur Boyle was
admitted to practice law in 1970, his address of record was in Bakersfield, and he is deceased.
(<https://apps.calbar.ca.gov/attorney/LicenseeSearch/QuickSearch?FreeText=
Boyle%2C%20George> [as of Sept. 1, 2026], archived at <https://perma.cc/E5WK-QYN9>; Evid.
Code, §§ 452, subd. (h), 459; In re White (2004) 121 Cal.App.4th 1453, 1469, fn. 14 [taking judicial
notice of State Bar records].)
10.
grounds of mistake or ignorance based on immigration consequences. (People v.
Patterson (2017) 2 Cal.5th 885, 889, 895 (Patterson); accord, Lopez, supra, 66
Cal.App.5th at p. 577.) “The advice and information defendants receive from their
attorneys is critical, and the court’s ‘generic advisement’ is not a substitute for that
advice. [Citation.] ‘“In evaluating the court’s [warning], ‘[t]he defendant can be
expected to rely on counsel’s independent evaluation of the charges, applicable law, and
evidence, and of the risks and probable outcome of trial.’”’” (Lopez, supra, at p. 577,
quoting Patterson, supra, at pp. 896–898.) Thus, the fact the superior court advised
defendant pursuant to section 1016.5 does not resolve the matter against defendant.
(Espinoza, supra, 14 Cal.5th at p. 320; Padron, supra, 109 Cal.App.5th at p. 962; Lopez,
supra, at p. 578.)
Critically, as this court recognized in Carrillo, prior to Padilla, “there was no
Sixth Amendment obligation on the part of defense counsel to affirmatively advise a
defendant of the immigration consequences of a conviction. (See Chaidez v. United
States (2013) 568 U.S. 342, 353.) Rather, most courts had determined that no such duty
existed.” (Carrillo, supra, 101 Cal.App.5th at p. 17, citing Chaidez, supra, at p. 353.)
Here, defendant entered his plea 15 years before the United States Supreme Court held in
Padilla “‘that the Sixth Amendment requires defense counsel to provide affirmative and
competent advice to noncitizen defendants regarding the potential immigration
consequences of their criminal cases.’” (Carrillo, supra, at p. 18, quoting § 1016.2,
subd. (a) [codifying Padilla & related state law, eff. Jan. 1, 2016] & citing People v.
Rodriguez (2021) 68 Cal.App.5th 301, 307–312.) As such, defendant’s attestation that
Mr. Boyle did not advise him about the immigration consequences of his plea is
consistent with the state of the law at that time. (Carrillo, supra, at pp. 17–18.)
Additional circumstances lend credence to defendant’s statements. “Both the
United States and California Supreme Courts have recognized that federal immigration
law can be complex and there are numerous situations where the consequences of a
11.
conviction are unclear. (Padilla, supra, 559 U.S. at p. 369; People v. Patterson (2017) 2
Cal.5th 885, 898.) Thus, one court referred to the ‘bewildering interplay between state
criminal proceedings and federal immigration enforcement—an area of the law that has
“aptly been called a labyrinth that only a lawyer could navigate.”’” (Carrillo, supra, 101
Cal.App.5th at p. 18, quoting Alatorre, supra, 70 Cal.App.5th at p. 765.)9 Defendant
relied on a Spanish interpreter, as previously stated; the record reflects he had a fifth
grade education; and he had no prior criminal record, suggesting inexperience with the
criminal justice system. (Carrillo, supra, at p. 18.) These circumstances, coupled with
the absence of any existing legal duty on Mr. Boyle’s part to advise him, support
defendant’s statements that he was unaware of the immigration consequences.
The People cite Abdelsalam for additional support, but we find that case is readily
distinguishable. (Abdelsalam, supra, 73 Cal.App.5th at p. 658.) The defendant in
Abdelsalam came to the United States in 2017 on a fiancé visa. (Ibid.) After discovering
he intended to obtain citizenship through marriage and then divorce her, his fiancée broke
up with him and reported him to immigration authorities via a tip line. (Ibid.) He was
subsequently charged with five crimes he committed against his fiancée after she
confronted him and obtained a restraining order. (Id. at pp. 658–659.) At his preliminary
hearing, she testified she reported his attempted fraud to Immigration and Customs
Enforcement (ICE), she asked ICE to deport him, and she met with two ICE agents who
were interested in detaining him. (Id. at p. 659.) In addition, two ICE agents were in the
courtroom during the preliminary hearing. (Id. at p. 664, fn. 2.) Defendant entered a no
contest plea to one count of making criminal threats and was sentenced to probation and
364 days in jail. (Ibid.) He was then detained by ICE and deportation proceedings were
initiated. (Ibid.)
9 The People do not dispute that the law was complex. (Carrillo, supra, 101 Cal.App.5th at
p. 18.)
12.
Thereafter, the defendant moved to set aside his plea under section 1473.7.
(Abdelsalam, supra, 73 Cal.App.5th at p 660.) The appellate court found no error and,
assuming error, no prejudice. (Id. at p. 665.) The defendant had just entered the country
on a fraudulent ground; during the plea colloquy, he was advised orally and in writing
that he would be deported; the defendant stated he understood and would “‘wait for
immigration’” (id. at p. 658), which made sense in the context of a jail sentence followed
by deportation proceedings; and his counsel stated on the record that she explained the
immigration consequences to him. (Id. at pp. 663–665.) The appellate court found no
support for his contention that he did not meaningfully understand the immigration
consequences under the circumstances (id. at p. 665), and stated, “At its core, this case
comes down to answering the question: Can a defendant be told repeatedly that his plea
will result in deportation, confirm he understood, present no contrary evidence from the
attorney who advised him, and then withdraw the plea with the claim that he did not
understand he would be deported? Our answer under the facts of this case is ‘no’” (id. at
p. 666).
Here, in contrast to Abdelsalam, there is no evidence in the record undermining
defendant’s claim of ignorance except for the section 1016.5 advisement, which, as
previously explained, is not dispositive because the advisement “does not replace the
case-specific advice of counsel.” (Padron, supra, 109 Cal.App.5th at p. 962; accord,
Espinoza, supra, 14 Cal.5th at p. 320.) Defendant’s statements are supported by the fact
his plea was entered prior to Padilla’s determination that defense counsel has a
constitutional obligation to advise on immigration consequences, and by evidence that he
relied on an interpreter, had a fifth grade education, and had no prior criminal record.
(Carrillo, supra, 101 Cal.App.5th at p. 18.)
Additionally, the record reflects that defendant was a lawful permanent resident
who had been in this country for at least 10 years at the time of his plea, he was married
to a citizen with whom he had a child, and he was gainfully employed. In the years that
13.
followed his plea, defendant continued to work until he retired, he became a grandfather,
he was active in his community church, and 30 years after his conviction, he sought the
assistance of an immigration attorney to become a citizen. These are not the hallmarks of
an individual “living in hiding” with the knowledge that he faced immigration
consequences as a result of his conviction.10 (Espinoza, supra, 14 Cal.5th at p. 320; see
Camacho, supra, 32 Cal.App.5th at p. 1009 [the defendant learned of the immigration
consequences after conviction was expunged and reduced to a misdemeanor, and he met
with “an immigration attorney to apply for a permanent resident visa on the basis of his
marriage”].) The prosecutor did not offer any evidence at the hearing in the superior
court and, on review, the People point to no record evidence that supports their position,
instead resting on the argument that defendant’s statements are self-serving and he was
given an advisement under section 1016.5. (See Carrillo, supra, 101 Cal.App.5th at
p. 18.) We find reliance on those two points unpersuasive for the reasons stated and
conclude, as did the superior court, that defendant met his burden of showing, by a
preponderance of the evidence, that he did not meaningfully understand the immigration
consequences of the plea he entered in 1995. Therefore, we turn to the issue of prejudice.
10 Notwithstanding the People’s contrary contention during oral argument, the absence of
evidence in the record that defendant attempted to travel does not support a reasonable inference that
he was avoiding immigration authorities, thereby suggesting he was aware of the immigration
consequences of his plea. While evidence that a defendant has voluntarily presented himself or
herself to authorities may indicate a lack of awareness of adverse immigration consequences
(Espinoza, supra, 14 Cal.5th at p. 320; Alatorre, supra, 70 Cal.App.5th at p. 770), inferring
knowledge of adverse immigration consequences based on nothing more than the absence of travel
evidence is purely speculative. “‘“[A] reasonable inference … ‘may not be based on suspicion
alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’”’” (People
v. Ware (2022) 14 Cal.5th 151, 167.) Rather, the inference “‘must logically flow from other facts
established in the action .…’” (Id. at p. 168; see Evid. Code, § 600.)
14.
B. Prejudicial Error
As previously stated, “the defendant must demonstrate ‘a reasonable probability
that [he or she] would have rejected the plea if [he or she] had correctly understood its
actual or potential immigration consequences’” (Carrillo, supra, 101 Cal.App.5th at
p. 19, quoting Vivar, supra, 11 Cal.5th at p. 529 & citing Espinoza, supra, 14 Cal.5th at
p. 316), and prejudice is assessed by considering the totality of the circumstances
(Carrillo, supra, at p. 19). “A defendant’s decision to reject a plea leaves him or her with
two options—go to trial or negotiate a plea with no immigration consequences.” (Ibid.)
However, a defendant is “not required to show the decision to reject the plea would have
led to a more favorable result.” (Id. at p. 20, italics added.)
In support of their argument that defendant fails to demonstrate prejudice, the
People contend defense counsel is presumed competent, no evidence establishes
immigration consequences were a primary concern to defendant, his claim that an
alternative immigration-safe plea was available is pure speculation, and the charged
offense was very serious and the prosecution’s case strong. They also cite to DeJesus for
support. (People v. DeJesus (2019) 37 Cal.App.5th 1124 (DeJesus).) We are
unpersuaded by their arguments.
The more developed the record, the more likely it is that there will be evidence
either undermining or bolstering the defendant’s claim of prejudicial error. Here,
however, for purposes of assessing prejudice, it is particularly material that the
proceedings occurred long before Padilla, which “announced a ‘new rule.’” (Chaidez v.
United States (2013) 568 U.S. 342, 353–354 (Chaidez).) Therefore, the presumption of
counsel’s competency on the issue of an immigration-consequences advisement does not
assist the People. (People v. Barrett (2012) 54 Cal.4th 1081, 1105 [“[c]ounsel is
presumed competent and informed as to applicable constitutional and statutory law”
(italics added)]; see People v. Perez (2020) 9 Cal.5th 1, 8 [“‘[t]he circumstance that some
attorneys may have had the foresight to raise th[e] issue does not mean that competent
15.
and knowledgeable counsel reasonably could have been expected to have anticipated the
high court’s decision’”]; In re Grinder (2025) 114 Cal.App.5th 845, 872 [“as a general
rule, a failure to anticipate changes in the law is not considered ineffective assistance of
counsel”].) Inasmuch as trial counsel did not have a recognized duty to advise defendant
on immigration matters, and we have already determined that defendant was not
adequately advised of the consequences, it is not surprising the record is silent concerning
the importance defendant placed on avoiding deportation. Consistent with the law at that
time, there is simply no indication that immigration consequences were considered,
beyond the court’s general statutory admonition. (Chaidez, supra, at p. 354 [“Padilla’s
holding that the failure to advise about a non-criminal consequence could violate the
Sixth Amendment would not have been—in fact, was not—‘apparent to all reasonable
jurists’ prior to our decision”].)
Where the record is devoid of any indication that immigration consequences were
a consideration, years before the law recognized the duty of counsel to advise his or her
client on the matter, a defendant may demonstrate ties to the United States sufficiently
strong to support a reasonable inference that immigration consequences would have
mattered, had the defendant been aware. (Espinoza, supra, 14 Cal.5th at p. 325 [ties to
this country, along with those to family and community, “support the conclusion that
immigration concerns would have been paramount to [the defendant] at the time of his
plea”]; accord, People v. Avena (2026) 119 Cal.App.5th 624, 636; People v. Benitez-
Torres (2025) 112 Cal.App.5th 1252, 1269.) The People do not dispute defendant’s
strong ties or that he built a life here. As discussed, he has lived in this country since at
least 1985 and is a lawful permanent resident. At the time of his plea, he was married,
had one child, was employed, and had assets, including a house. His declaration states
his wife, son, and grandson are all citizens, and he submitted evidence of community
involvement in his church and of an 11-year employment with the same company
preceding his retirement. Although the People assert that defendant was sending money
16.
to his parents in Mexico at the time of his plea and he had a nephew in Mexico, they do
not dispute the evidence that his primary ties were and are to this country.
Defendant was charged with one count of violating section 288, subdivision (a),
which exposed him to a potential prison sentence of three, six, or eight years, and he
rejected a plea offer of two years in prison, although the record on appeal does not reveal
the specifics of that offer, including on what offense the offer was based.11 Rejection of
the offer suggests defendant was motivated to avoid serving a prison sentence, and his
declaration attesting to his decision to enter a plea in exchange for the possibility of
probation and a jail term supports that view. Given that defendant was not adequately
advised of the immigration consequences, however, the import of his desire to avoid
prison time should not be overstated.
We also disagree with the People’s position that defendant’s claim of an
immigration-safe disposition is purely speculative. Defendant submitted evidence, in the
form of Mr. Rivera’s declaration, of the potential for an alternative plea that would have
been safe from immigration consequences. (Espinoza, supra, 14 Cal.5th at p. 321.) In
his declaration, Mr. Rivera attests that a plea to section 237, false imprisonment, for a
sentence of 364 days or less with the same probation terms as imposed was an
immigration-safe disposition in 1995 and remains an immigration-safe disposition. He
also attests that the facts as set forth in the probation report provide a factual basis for a
plea to violating section 237. The People do not dispute this.
At the hearing, the prosecutor agreed the facts could fit a false imprisonment
charge but argued he could not “foresee a situation where a prosecutor would have taken
that.” The superior court questioned him about the fact that the victim was defendant’s
niece and the general reluctance of some victims to testify. The prosecutor
11 In ruling on defendant’s motion, the superior court described the two-year offer as the low
term, but the low term for violating section 288, subdivision (a), was three years in 1995 and remains
three years.
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acknowledged such situations do occur and could result in consideration of dispositions
not usually considered. Given the length of time that had passed, he could not
specifically speak to office policies from the 1990’s, but he stated that in his 10 years of
experience, once a case is assigned out for trial, there are no further plea negotiations.
However, the prosecutor did not submit any evidence at the hearing, and the record does
not reveal what the prosecutor assigned in 1995 may or may not have been willing to
negotiate over. (In re Zeth S. (2003) 31 Cal.4th 396, 413–414, fn. 11 [“unsworn
statements of counsel are not evidence”]; accord, People v. Holliday (2025) 116
Cal.App.5th 664, 674.) Moreover, defendant is not required to prove the prosecutor
would have accepted an immigration-safe disposition. (Espinoza, supra, 14 Cal.5th at
pp. 324–325; accord, Padron, supra, 109 Cal.App.5th at p. 964; People v. Manzanilla
(2022) 80 Cal.App.5th 891, 908.) Rather, the “inquiry is informed by whether the
defendant would have had reason ‘to expect or hope’ that a plea deal without immigration
consequences ‘would or could have been negotiated [citation].’” (Espinoza, supra, at
p. 324, quoting Martinez, supra, 57 Cal.4th at p. 567.)
Weighing in favor of the possibility of a more favorable resolution are the facts
that defendant did not have a prior criminal record; and his conduct, which we do not
seek to excuse or minimize, was nevertheless objectively less egregious, factually, than in
many cases resulting in a charge under section 288.12 Additionally, it is unclear whether
his niece, who was the only eyewitness to the crime, would have been cooperative, as the
record reflects there was no response to the probation department’s attempts to contact
the victim’s mother. Further, based on the section 288.1 evaluation and “that the
circumstances of the offense [were] substantially less serious than the circumstances
12 Section 288 proscribes “a wide range of conduct[, including] that [which] would not be
immediately recognizable as ‘sexual’ except when considered from the defendant’s perspective, and
in light of his or her intent.” (People v. Levesque (1995) 35 Cal.App.4th 530, 541; accord, In re
Rodriguez (1975) 14 Cal.3d 639, 647 [“section 288 encompasses a wide range of culpable
behavior”].)
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typically present in [section] 288[, subdivision ](a) cases,” the probation department was
of the opinion that probation should not be ruled out and one year in jail would be
justified. The superior court thereafter imposed probation and a jail term. Under these
circumstances, we cannot agree with the People that there is no evidence supporting the
possibility of a more favorable resolution for defendant, had he been adequately advised
of the immigration consequences in pleading no contest to violating section 288,
subdivision (a).
Finally, the People’s reliance on DeJesus is misplaced. (DeJesus, supra, 37
Cal.App.5th 1124.) In that case, which involved a crime committed post-Padilla, the
defendant conceded his attorney advised him of the immigration consequences of his plea
(DeJesus, supra, at p. 1128), but he claimed counsel was ineffective because “counsel
refused to try his case to a jury, [and] failed to review a video of the incident or to
investigate an ‘immigration safe plea’” (id. at p. 1132). The appellate court concluded
that the defendant was not eligible to seek relief under section 1473.7 because he was on
parole (DeJesus, supra, at pp. 1131–1132), but also found he did not meet his burden of
demonstrating error or prejudice (id. at pp. 1132–1137). As to error, the court found the
defendant failed to offer any evidence that trial counsel refused to try the case; his own
declaration evidenced his concern was the weakness of the evidence against him and his
belief he was not guilty; he failed to offer any evidence that the case was weak or that his
attorney failed to review the video footage of the crime; and he failed to offer any
evidence that counsel failed to investigate or negotiate an immigration neutral
disposition. (Ibid.) The court concluded, “DeJesus’s wish to reject the plea was not
based upon his deportability, but upon his belief that he was not guilty. At the
evidentiary hearing, his postconviction attorney confirmed that DeJesus was advised of
the immigration consequences of his plea to assault and that his motion was based upon
deficient performance by the trial attorney, not misadvice. Thus, DeJesus fails to offer
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‘contemporaneous evidence’ that he would have refused to enter the plea if he had known
it would render him deportable.” (Id. at p. 1137.)
Here, as discussed, trial counsel’s duty to advise his client on immigration matters
was years away from being established by Padilla (see Chaidez, supra, 568 U.S. at
pp. 353–354), and nothing in the record undermines defendant’s declaration statements
that he was not advised and “‘did not meaningfully understand the immigration
consequences of his [plea]’” (Carrillo, supra, 101 Cal.App.5th at p. 14, quoting
Espinoza, supra, 14 Cal.5th at p. 319). Defendant had deep, longstanding ties to this
country; he had no criminal record; and neither defendant’s declaration nor the record
undermines his contention that he would have gone to trial or asked his attorney to
negotiate a different plea agreement if he had known of the deportation consequences.
(Espinoza, supra, at p. 325.) Finally, defendant sought the assistance of an immigration
attorney and supported his motion with a declaration from Mr. Rivera, who addressed the
availability of an immigration-safe disposition that fits the facts of the case. The facts
that counsel had no duty of advisement at the time of the plea, that the record does not
undermine defendant’s statements, and that defendant offered evidence of an
immigration-safe disposition through counsel are material to the inquiry and readily
distinguish this case from DeJesus.
Accordingly, for the reasons discussed herein, we conclude that based on the
totality of the circumstances, defendant has shown, by a preponderance of the evidence, a
“‘reasonable probability that [he] would have rejected the plea if [he] had correctly
understood its actual or potential immigration consequences.’” (Espinoza, supra, 14
Cal.5th at p. 319, quoting Vivar, supra, 11 Cal.5th at p. 529.) Accordingly, we shall
vacate the superior court’s order denying his motion under section 1473.7,
subdivision (a), and remand the matter with directions to the court to grant the motion.
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DISPOSITION
The order denying defendant’s section 1473.7, subdivision (a)(1), motion is
vacated, and this matter is remanded to the superior court with instructions to grant the
motion, vacate defendant’s conviction, and set the matter for further proceedings.
21.