P. v. Lopez CA6

Filed 8/7/26 P. v. Lopez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H053105
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC617449)

v.

GERARDO LOPEZ,

Defendant and Appellant.

Defendant and appellant Gerardo Lopez appeals the denial of a motion to vacate
his 2008 conviction and to allow him to withdraw his no contest plea under Penal Code
sections 1016.5 and 1473.7. Lopez argues that he was not advised of the immigration
consequences of his plea and did not meaningfully understand those consequences.
Having reviewed the record, we conclude that there was sufficient evidence to support
the trial court’s finding that Lopez was properly advised of the consequences of his plea.
In addition, the evidence did not support Lopez’s claim that he lacked a meaningful
understanding of those consequences; indeed, he admitted to understanding that removal
from the United States was one such consequence. We affirm.
I. BACKGROUND
A. The Charges Against Lopez and his Plea
In January 2008, the Santa Clara County District Attorney’s office filed an
information charging Lopez with six criminal counts: (1) assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)); (2) hit and run driving causing property damage (Veh.
Code, § 20002, subd. (a)); (3) inflicting corporal injury on a spouse, cohabitant, former
spouse, or former cohabitant (Pen. Code, § 273.5, subd. (a)); (4) battery (Pen. Code,
§§ 242, 243, subd. (a)); (5) driving while unlicensed (Veh. Code, § 12500, subd. (a)); and
(6) vandalism – less than four hundred dollars (Pen. Code, § 594, subds. (a), (b)(2)(A)).
On February 13, 2008, Lopez pleaded no contest to counts 1, 2, 3, and 5.1 On the
minute order for that plea hearing, the boxes for “Adv” and “Immig” were checked by the
court. Before sentencing, on March 18, 2008, Lopez was detained on an immigration
hold. At the sentencing hearing on April 11, 2008, the trial court placed Lopez on three
years of probation, with 360 days in the county jail as a condition of probation, deemed
served.
B. The Motion to Vacate
More than 16 years later, on August 29, 2024, Lopez moved to vacate his
conviction and withdraw his plea pursuant to Penal Code sections 1016.5 and 1473.7.2
He asserted that he “did not ‘meaningfully understand’ the immigration consequences of
his guilty plea.” In his sworn declaration, Lopez acknowledged that “[m]any years have
passed and I do not remember all the details of what happen[ed] in Court, but I do
remember not being told I could get deported, denied naturalization, exclu[ded] from the
United States, or not be able to receive a green card.” He claimed to “remember that
neither my attorney nor the judge advised me of [the] immigration consequences” of his
plea, and that he “did not talk about immigration consequences” with his attorney. After
stating that he did not remember “all the details” of the court hearing, he later stated in

1 Count 1 was amended to a charge of assault by means of force likely to cause
great bodily injury.
2 All further statutory references are to the Penal Code unless otherwise indicated.

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the same declaration, “I do not remember much of the details in court. But I am sure I
was not told of any [i]mmigration consequences.”
Lopez pointed out that his attorney in the 2008 case did not speak Spanish, but he
acknowledged that there was a Spanish interpreter at the court hearings. He asserted:
“Had I known that my plea of guilty would result in future immigration consequences of
deportation, exclusion of admission into the United States, denial of naturalization, or
risk never receiving legal permanent resident status, I would have fought the case and I
would have also consulted with an immigration attorney to discuss different options for
resolution.”
The trial court held an evidentiary hearing on Lopez’s motion on February 13,
2025. The reporter’s transcripts from 2008 and the change of plea form signed by Lopez
were no longer available. The following individuals testified at the hearing: (1) Lopez’s
attorney in the 2008 case, Thompson Sharkey; (2) the prosecutor in the 2008 case, Max
Zarzana; (3) a defense expert witness, Peter Singh; and (4) Lopez himself.
Sharkey testified that he did not have the file from the 2008 case and had no
independent recollection of the matter. He stated, however, that in 2008 he had a
standard admonition that he gave to his clients in “[e]very felony case where the person
was pleading.” The specific immigration advisement he gave in 2008 was: “If you are
not a citizen of the United States, conviction can result in deportation, denial of
naturalization, or refusal of admittance into the country.”
Zarzana also testified that he had no independent recollection of Lopez’s case.
Nevertheless, he stated: “If I was taking a felony change of plea, I would fill out a felony
change of plea checklist 100 percent of the time.” On Zarzana’s felony voir dire
checklist for Lopez’s case, the words “deportation, exclusion, denial of naturalization if
not U.S. citizen” were checked. Zarzana testified he would be “checking things off”
while the judge gave the advisements.

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Singh, an immigration attorney of more than 25 years, testified as to the
immigration consequences of Lopez’s plea. He noted that having a spouse and children
in the United States would not help prevent removal. Singh stated further that a person
who is removed from the United States as a result of a conviction for an aggravated
felony (such as an assault under Penal Code section 245, subdivision (a)(1)) would be
removed for the rest of the person’s life.
The court also received into evidence an April 2008 probation report describing a
March 13, 2008 interview with Lopez in which he talked about his future goals. The
report states: “As to [Lopez’s] future goals, he indicated he will be deported. ‘So that is
that, I can’t do anything.’ However, if he is not deported, he will comply with the terms
and conditions of probation and pay restitution to the victims.” (Italics added.) At the
February 13, 2025 hearing, Lopez testified that he did not remember ever speaking with a
probation officer in 2008; at the same time, he denied that he ever stated that he “will be
deported.”
The trial court issued its decision denying Lopez’s motion on March 6, 2025,
finding that Lopez had not met his burden of proof. The court found that the testimony of
Sharkey and Zarzana regarding their regular practices as to immigration advisements was
corroborated by the court’s February 13, 2008 minute order, on which the immigration
advisement boxes (“Adv” and “Immig”) had been checked. In addition, the court
observed that the probation report confirmed that Lopez knew of at least one of the most
severe potential immigration consequences. The court found that Lopez’s testimony that
he had never spoken to a probation officer as part of his presentence interview was “not
true, and I found his testimony on that point unreliable.”
Lopez timely appealed.

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II. DISCUSSION
A. Governing Law and Standard of Review
Section 1473.7 provides that “[a] person who is no longer in criminal custody may
file a motion to vacate a conviction or sentence [because] [¶] … [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.” (Id., subd. (a)(1).) “To
establish prejudicial error, a defendant must demonstrate a ‘reasonable probability that
the defendant would have rejected the plea if the defendant had correctly understood its
actual or potential immigration consequences’ [citation] and must corroborate any
assertions with ‘ “ ‘objective evidence’ ” ’ [citation].” (People v. Espinoza (2023)
14 Cal.5th 311, 316.)
“We apply independent review to the denial of a section 1473.7 motion.
[Citation.] Under this standard, we defer to any ‘factual findings based on the trial
court’s personal observations of witnesses,’ but otherwise ‘ “exercise[] [our] independent
judgment to determine whether the facts satisfy the rule of law.” ’ [Citation.]” (People v.
Padron (2025) 109 Cal.App.5th 950, 959; People v. Vivar (2021) 11 Cal.5th 510, 524
(Vivar).)
“To prevail on a motion brought pursuant to Penal Code section 1016.5, a
defendant must establish: (1) he or she was not properly advised of the immigration
consequences as provided by the statute; (2) there exists, at the time of the motion, more
than a remote possibility that the conviction will have one or more of the specified
adverse immigration consequences; and (3) he or she was prejudiced by the
nonadvisement, i.e., if properly advised, he or she would not have pleaded guilty or nolo
contendere.” (People v. Dubon (2001) 90 Cal.App.4th 944, 951–952 (Dubon).) The
language of the advisement given need not be exact, but only in substantial compliance

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with the requirements of section 1016.5. (People v. Superior Court (Zamudio) (2000)
23 Cal.4th 183, 207–208 (Zamudio).)3
We review denial of a section 1016.5 motion for abuse of discretion. (Zamudio,
supra, 23 Cal.4th at p. 192.) Under this standard, we will reverse if the trial court
exercised its discretion “in an arbitrary, capricious, or patently absurd manner that results
in a manifest miscarriage of justice.” (People v. Limon (2009) 179 Cal.App.4th 1514,
1518.) In examining the trial court’s resolution of factual questions, we apply the
substantial evidence rule, and “ ‘[i]f the circumstances reasonably justify the trial court’s
findings, an appellate court cannot reverse merely because the circumstances might also
be reasonably reconciled with a contrary finding.’ [Citations.]” (People v. Quesada
(1991) 230 Cal.App.3d 525, 533.) “ ‘Although “substantial” evidence is not synonymous
with “any” evidence ... , the standard is easily satisfied.’ [Citation.]” (People v. Barnwell
(2007) 41 Cal.4th 1038, 1052, fn. 11.)
B. Analysis
As noted above, this appeal focuses on whether the trial court gave Lopez the
necessary advisement regarding the potential immigration consequences of a “no contest”
or guilty plea under section 1016.5, and whether he meaningfully understood those
consequences under section 1473.7. We first address section 1016.5.

3 Effective January 1, 2026, section 1016.5, subdivision (a) requires a “verbatim”
recitation of the advisement, with subdivision (e) also providing as follows: “For a plea
accepted prior to January 1, 2026, it is not the intent of the Legislature in amending this
section that a court’s failure to provide a verbatim advisement as described in
subdivision (a) requires the vacation of judgment and withdrawal of the plea or otherwise
constitutes grounds for finding a prior conviction invalid pursuant to subdivision (b).”
Neither side has argued that this most recent amendment has any impact on the outcome
of the present appeal.

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1. Penal Code Section 1016.5

Section 1016.5, subdivision (a) sets forth the specific advisement that a trial court
must provide to a pleading defendant. “Absent a record that the court provided the
advisement required by this section, the defendant shall be presumed not to have received
the required advisement.” (§ 1016.5, subd. (b).) “[T]he presumption of nonadvisement is
rebuttable. [Citation.]” (People v. Arriaga (2014) 58 Cal.4th 950, 961 (Arriaga).) In
this case, we no longer have either the reporter’s transcript of the plea hearing or the plea
form signed by Lopez, and so we will assume that the section 1016.5 presumption
applies.4
The parties dispute whether the trial court properly applied the presumption, but
“[i]n the absence of evidence to the contrary, we presume that the court ‘knows and
applies the correct statutory and case law.’ [Citations.]” (People v. Thomas (2011)
52 Cal.4th 336, 361.) The critical question here is whether the prosecution presented
sufficient evidence to rebut the presumption. We conclude that it did.
At the hearing on Lopez’s motion to vacate, the trial court heard testimony from
the original prosecutor, Zarzana, that he had a regular practice of filling out a “felony
plea voir dire checklist” in every felony case, and that he in fact filled one out in this
case. On the checklist for Lopez, he “marked ‘deportation, exclusion, denial of
naturalization if not U.S. citizen,’ ” which indicates that the trial judge in 2008 gave the
necessary advisement, as Zarzana “was checking things off as we went along.” The trial
court in 2025 also had before it the minute order from February 2008 showing the
immigration advisement boxes checked. The trial court appropriately found that the

4 In Arriaga, discussed further below, the California Supreme Court discussed
whether a minute order could qualify as a sufficient “record” under section 1016.5,
subdivision (b), obviating the application of any evidentiary presumption, as well as
whether a minute order could be used to rebut the presumption. (Arriaga, 58 Cal.4th at
pp. 961–964.)

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minute order corroborated Zarzana’s testimony. Zarzana’s testimony, coupled with the
February 2008 minute order, was sufficient evidence to overcome the presumption under
section 1016.5.
In Arriaga, the Supreme Court held that the required showing under
section 1016.5 did not require clear and convincing evidence—only a preponderance
(Arriaga, supra, 58 Cal.4th at p. 955)—and the following evidence was deemed
sufficient to rebut the section 1016.5 presumption: (1) a minute order stating:
“ ‘Defendant advised of possible effects of plea on any alien or citizenship/probation or
parole status’ ”; and (2) testimony of the prosecutor from the defendant’s plea hearing,
who declared that he always gave the following advisement: “ ‘There are a number of
consequences to your plea. One of those consequences is you may be deported from the
country, that is, required to leave the country, after you are convicted of this offense.
You may be denied readmission to the United States after you enter your plea. And if
you apply for citizenship, that application may be denied.’ ” (Arriaga, supra, at p. 956.)
The Supreme Court noted that “[t]here will be circumstances, not present here, under
which the trial court may properly conclude that the prosecution has not rebutted the
nonadvisement presumption. For instance, both the original prosecutor and the trial
judge may be unavailable to testify; their testimony about what occurred at the plea
hearing may prove less persuasive than the defendant’s testimony; or the minute order
for the plea hearing, by the absence of any notation that the defendant was advised, may
strongly support an inference that advisements were not given [citation].” (Id., at p. 963.)
The foregoing circumstances were not present in Arriaga, and we likewise
conclude that they are not present in this case. Although there was no testimony from
the trial judge who took Lopez’s plea in 2008, there was testimony from the prosecutor,
coupled with the minute order. While a minute order may not contain enough detail in
all circumstances to qualify as a written “record” under section 1016.5, it can still
provide “significant evidence rebutting the statutory presumption.” (Dubon, supra,

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90 Cal.App.4th at p. 955.) As in Arriaga, Zarzana’s testimony and the minute order here
were sufficient for the 2025 trial court to conclude that Lopez received the proper
immigration advisements in 2008.5
Lopez argues that the law has changed since Arriaga, and he highlights
sections 1016.2 and 1016.3, enacted approximately a year later, as well as amendments
to section 1473.7. Section 1016.2 was enacted to codify Padilla v. Kentucky (2010)
559 U.S. 356, in which the United States Supreme Court emphasized the importance of
defense counsel informing their noncitizen clients of the risk of removal during the plea
bargaining process. The statute provides that “defense counsel must investigate and
advise regarding the immigration consequences of the available dispositions, and should,
when consistent with the goals of and informed consent of the defendant, and as
consistent with professional standards, defend against adverse immigration
consequences.” (§ 1016.2, subd. (a).) Section 1016.3 goes on to provide that defense
counsel “shall provide accurate and affirmative advice about the immigration
consequences of a proposed disposition, and … defend against those consequences.”
(Id., subd. (a).) At the same time, section 1016.3 also states that “[t]his code section shall
not be interpreted to change the requirements of Section 1016.5.” (Id., subd. (c).) While
we are cognizant of the importance of advising a client regarding the immigration
consequences of a plea, sections 1016.2 and 1016.3 do not affect our conclusion that the
evidence in this case supports the trial court’s finding that Lopez did receive the
immigration advisement required by section 1016.5.

5 Section 1016.5, subdivision (a) refers to an advisement given by “the court,”
whereas in Arriaga, the prosecutor from the original plea hearing testified that he himself
always “advise[d] defendants of the immigration consequences of pleading guilty or
no contest, as required by section 1016.5.” (Arriaga, supra, 58 Cal.4th at pp. 963–964.)

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2. Penal Code Section 1473.7

In addition to arguing that he did not receive the section 1016.5 advisement, Lopez
argues that he did not meaningfully understand the immigration consequences of his plea
under section 1473.7. (See § 1473.7, subd. (a)(1).) “[T]he focus of the inquiry in a
section 1473.7 motion is on the ‘defendant’s own error in … not knowing that his plea
would subject him to mandatory deportation and permanent exclusion from the United
States.’ [Citation.]” (People v. Mejia (2019) 36 Cal.App.5th 859, 871.) And yet “[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. [Citations.]” (People v. Carrillo (2024) 101 Cal.App.5th 1, 17.)
Lopez argues that he “did not understand everything because things were
happening very fast and he was very nervous.” As noted above, he testified that he was
“sure no one told [him] anything” about “deportation, exclusion from admission into the
United States, or denial of naturalization.” According to him, if anyone had properly
advised him of these consequences, it would have made a strong impression on him
because he had a baby on the way, and he would have consulted an immigration attorney.
Lopez further notes that at the time of the hearing in 2008, his English was still not very
good.
Lopez’s contentions are belied by the probation report, which described him as
being resigned to the fact that he “will” be “deported”: “ ‘So that is that, I can’t do
anything.’ ” (Italics added.) This statement to the probation officer was directly
inconsistent with the notion that Lopez would have been highly motivated to consult with
an immigration attorney had he known about the adverse consequences. Similarly, the
trial court reasonably concluded that Lopez’s claim that he “never saw anyone from
probation” strained credulity, given the existence of a probation report upon which the
trial court would necessarily have relied at sentencing in 2008. In light of the

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inconsistencies between Lopez’s assertions and the contents of the probation report, the
trial court in this case appropriately found Lopez’s testimony to be “not true” and
“unreliable.” Because we evaluate the court’s ruling in a section 1473.7 proceeding
under independent review, we “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.)
On appeal, Lopez professes to find significance in the fact that the probation report
was prepared after he had already pled to the charges, but he fails to identify any case
event at which he would have learned about the possibility of removal before his
March 13, 2008 interview with probation, other than the February 13, 2008 plea hearing
itself. Moreover, Lopez never moved to withdraw his plea before the sentencing hearing
in April 2008, further belying his claim that he would have acted differently if he had
been fully advised.
Lopez claims that the generic advisement that a conviction may have immigration
consequences is not sufficient and that “[u]nder current law, a criminal defendant must be
alerted to three distinct dangers: (1) the certainty of removal; (2) the certainty of denial of
readmission; and (3) the lifetime exclusion from naturalization.” But the trial court did in
fact have evidence before it to support a finding that Lopez had been informed of all three
consequences. As mentioned above, the prosecutor’s felony voir dire checklist for the
2008 case showed that the words “deportation, exclusion, denial of naturalization if not
U.S. citizen” were checked.
In short, the record on appeal supports a conclusion that Lopez was properly
advised of the immigration consequences of his plea under section 1016.5, and he has
failed to establish with any corroborating evidence that he did not meaningfully
understand those consequences under section 1473.7. Accordingly, we find no error in
the trial court’s denial of his motion to vacate his conviction. Additionally, in light of
this conclusion, we do not need to reach the separate question of prejudice—i.e., whether

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the court’s alleged failure to advise Lopez or his alleged failure to understand caused him
to accept a plea deal that he would otherwise have rejected.
III. DISPOSITION
The trial court’s March 6, 2025 order denying the motion to vacate the conviction
is affirmed.

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CHUNG, J.

WE CONCUR:

GREENWOOD, P. J.

WILSON, J.

People v. Lopez
H053105


Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.