Filed 10/6/26 P. v. Suh CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065451
v. (Super. Ct. No. 99WF1081)
DAE JIM SUH, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Kevin Haskins, Judge. Reversed and remanded.
Law Offices of Michael L. Guisti and Michael L. Guisti for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Eric A. Swenson, Daniel J. Hilton, and Tyler L. Krentz, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Dae Jim Suh appeals an order denying his motion to
vacate a guilty plea he entered in 1999. (Pen. Code, § 1473.7, subd. (a)(1)
(hereafter, section 1473.7(a)(1).) Suh contends the motion should have been
granted because he did not meaningfully understand the immigration
consequences of his plea. Alternatively, he seeks a remand in light of the
California Supreme Court’s recent decision in People v. Hernandez (2026) 20
Cal.5th 598 (Hernandez), which was issued while Suh’s appeal was pending
in this court.
Hernandez provides detailed guidance on what type of evidence is
relevant to support a motion under section 1473.7(a)(1) and how trial courts
should adjudicate such motions. Hernandez also recognized that, with respect
to pending appeals involving section 1473.7(a)(1) motions, remand “will be
appropriate” in many instances to “allow the defendant an opportunity to
make a fuller presentation of evidence with the guidance we have provided in
mind and [to] permit the trial court to make a new ruling taking that
additional evidence into account.” (Hernandez, supra, 20 Cal.5th at p. 621, fn.
4.) Because neither Suh nor the trial court had the benefit of the Hernandez
decision when Suh’s section 1473.7(a)(1) motion was filed and heard, we
reverse the order denying his motion and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I.
THE ORIGINAL PLEA PROCEEDINGS
In September 1999, Suh was charged in a multiple defendant
complaint with six crimes: conspiracy to commit grand theft, removing the
serial number from a firearm, counterfeiting, and three counts of check fraud.
(Pen. Code, §§ 182, subd. (a), former 12090, 648, former 475a.) The conspiracy
charge was based on the defendants’ alleged scheme to cash phony payroll
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checks. Following the preliminary hearing, additional charges of receiving
stolen property and carrying a loaded firearm in public were alleged against
Suh. (Pen. Code, §§ 496, subd. (a), former 12031, subd. (a).)
On December 17, 1999, Suh pleaded guilty to the conspiracy and
receiving stolen property charges, as well as one count of check fraud.
Pursuant to his plea agreement, Suh was sentenced to 32 months in prison,
and the prosecution dismissed the remaining charges against him.
In conjunction with Suh’s plea, the parties filed a guilty plea form
that described the rights Suh was giving up by pleading guilty and the
consequences of his doing so. The eighth paragraph on the form, which Suh
personally initialed, states: “I understand that if I am not a citizen of the
United States the conviction for the offense charged may have the
consequence of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.” But the
word “may” is crossed out, and the word “will” is handwritten directly above
it.
Suh also initialed paragraph 20, which stated he was entering his
guilty plea “freely and voluntarily and with full understanding of all the
matters” set forth in the guilty plea form. And he initialed and signed
paragraph 22, which provides: “I am entering a plea of guilty because I am in
fact guilty and for no other reason. I declare under penalty of perjury that I
have read, understood, and personally initialed each item above and
discussed them with my attorney, and everything on this form is true and
correct.”
The next paragraph on the form was signed by Suh’s attorney. It
states, “I have explained each of the above rights to the defendant, and
having explored the facts with him . . . and studied his . . . possible defenses
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to the charge(s), I concur in his . . . decision to waive the above rights and to
enter a plea of guilty.”
II.
SUH’S INITIAL CHALLENGE TO HIS GUILTY PLEA
Roughly a year after he was sentenced in 2000, Suh filed multiple
requests to withdraw his plea on the basis he did not understand the
immigration consequences of pleading guilty. Although the record on appeal
does not contain those filings or the reporter’s transcripts of the hearings
they generated, the minute orders in the record of appeal reflect the
following:
In November 2001, Suh filed a motion to vacate his guilty plea.
The trial court treated the motion as a petition for writ of error coram nobis
and denied it in January 2002. Suh then filed a petition for writ of error
coram nobis, which the court treated as both a petition of that kind and a
petition for writ of habeas corpus. In the petition, Suh argued his attorney
had not explained the immigration consequences of his guilty plea to him.
In the spring of 2002, the court conducted an evidentiary hearing
on the petition, during which Suh testified. Dennis O’Connell, Suh’s plea
attorney, also took the stand. O’Connell testified that both he and the trial
judge advised Suh of the immigration consequences of his guilty plea before
Suh entered his plea.
Ultimately, as shown in the minutes, the trial court denied Suh’s
petition for the following reasons: “Based on the credibility of witnesses, the
[c]ourt believed witness O’Connell and did not believe the testimony of [Suh].
Witness O’Connell had a good recollection of the issues before and after the
guilty plea in that the [guilty plea] form specifically outlined to [Suh] what
was going to happen regarding [i]mmigration . . . .”
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III.
SUH’S CURRENT CHALLENGE TO HIS GUILTY PLEA
Over two decades later, on December 18, 2024, Suh filed a motion
to vacate his convictions pursuant to section 1473.7(a)(1). The motion alleged
Suh’s convictions were invalid due to a prejudicial error that damaged his
ability to meaningfully understand, defend against, or knowingly accept the
adverse immigration consequences of his guilty plea.
The motion also included a supporting declaration from Suh. In
the declaration, Suh stated he is a working partner in a health and wellness
business and has led a productive, crime-free life since he pleaded guilty in
1999. Suh further alleged:
“O’Connell told me I was going to be convicted at trial and I had
to plead guilty.”
“O’Connell never went over the case discovery with me to
determine whether I should take a plea agreement or go forward with the
trial.”
“O’Connell never went over any issue with the plea form. The
plea form never mentioned removal proceedings nor eligibility for
immigration application under removal proceedings.”
“Thus, procedurally I could not take this plea knowingly,
intelligently and voluntarily.”
“If I had known the depth of a felony conviction, including but not
limited to the loss of my constitutional rights and facing immigration
consequences, I would have insisted on going to trial and not pled guilty.”
At the hearing on Suh’s motion, his present attorney echoed
Suh’s claim that he did not meaningfully understand the immigration
consequences of his guilty plea. Although Suh’s guilty plea form stated he
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would be deported as a result of pleading guilty, counsel argued that
advisement was insufficient because, inter alia, it did not mention the
prospect of “removal” from the United States.
In its opposition, the prosecution argued Suh failed to present
any new evidence showing he did not meaningfully understand the
immigration consequences of his guilty plea, the contemporaneous evidence
surrounding the plea indicates Suh was in fact aware of those consequences,
and Suh has not shown he was prejudiced by his alleged lack of awareness of
those consequences.
Agreeing with the prosecution, the trial court found as a
threshold matter that Suh had failed to prove he was unaware of the
immigration consequences of his guilty plea at the time he entered his plea.
That finding was based on the trial court’s understanding that Suh had been
advised by his plea attorney and through his guilty plea form that there
would be immigration consequences for pleading guilty.
The trial court further found that, even if Suh did not
meaningfully understand those consequences, he had failed to show resulting
prejudice. Although Suh stated in his declaration he would not have pled
guilty had he known of the immigration consequences of doing so, the court
rejected that claim as “self-serving and not corroborated by any other
evidence.”
Beyond that, from a procedural standpoint, the trial court found
“it’s all res judicata because the [coram nobis/habeas] court . . . decided these
very same issues . . . over 20 years ago. [¶] So for all those reasons,” the court
denied Suh’s motion.
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DISCUSSION
Suh claims the trial court erred by: (1) applying res judicata to
deny his motion; (2) not allowing him to present evidence at the hearing; and
(3) applying the wrong legal standard on the issue of prejudice. We agree the
principles of res judicata do not bar Suh’s section 1473.7(a)(1) motion.
However, we need not address Suh’s other two arguments because we
conclude the case should be remanded so that Suh will have an opportunity
to relitigate his motion in light of the guidance provided by Hernandez.
I.
GENERAL LEGAL PRINCIPLES AND STANDARD OF REVIEW
Under Penal Code section 1473.7, a person who is no longer in
custody may seek to vacate a conviction on the ground it “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” the conviction. (§ 1473.7(a)(1).) “A
finding of legal invalidity may, but need not, include a finding of ineffective
assistance of counsel.” (Ibid.) The statute was enacted to provide out-of-
custody defendants with a means to challenge criminal convictions for which
they have suffered unexpected immigration consequences. (People v. Vivar
(2021) 11 Cal.5th 510, 517.)
To prevail under the statute, the defendant must first prove by a
preponderance of the evidence 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 probability that the defendant would
have rejected the plea if the defendant had correctly understood its actual or
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potential immigration consequences.’” (People v. Espinoza (2023) 14 Cal.5th
311, 319.)
In Hernandez, the California Supreme Court made clear that for
purposes of establishing error under section 1473.7(a)(1), the focus is not so
much on what the defendant was told about the possible immigration
consequences of his plea, but on what the defendant subjectively understood
those consequences to be. (Hernandez, supra, 20 Cal.5th at pp. 614, 622–626.)
In addition, the Court emphasized that “courts evaluating motions to vacate
a conviction under section 1473.7(a)(1) should consider the totality of the
circumstances bearing on the inquiry.” (Hernandez, at p. 626.) Keeping in
mind that, for noncitizen defendants, preserving their right to stay in the
United States is often a crucial factor in deciding whether to plead guilty to
criminal charges (id. at pp. 607–608), the trial court ultimately must decide
whether the defendant was prejudicially harmed by his or her inability to
meaningfully understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a conviction or sentence. (Id.
at pp. 614–615.)
II.
SUH’S MOTION IS NOT BARRED BY RES JUDICATA PRINCIPLES
Relying on People v. Ruiz (2020) 49 Cal.App.5th 1061 (Ruiz), Suh
contends the trial court erred by applying res judicata to bar his section
1473.7(a)(1) motion.1 We agree.
1
Suh’s opening brief also relied on People v. Perez (2018) 19
Cal.App.5th 818 for this contention. In conjunction with his reply brief,
however, Suh’s attorney filed a notice of errata in which he acknowledged
Perez is inapt because it does not discuss the issue of res judicata.
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In Ruiz, the court ruled the doctrine of collateral estoppel, an
aspect of res judicata (see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th
813, 823–825), did not preclude the defendant from bringing successive
section 1473.7(a)(1) motions on the basis she failed to understand the
immigration consequences of her guilty plea. In so ruling, the Ruiz court
found it significant that, at the time of the defendant’s first motion, she was
required to prove her attorney was ineffective for failing to advise her of those
consequences. (Ruiz, supra, 49 Cal.App.5th at pp. 1068–1070; see generally
Padilla v. Kentucky (2010) 559 U.S. 356 [a defense attorney’s failure to advise
his or her client about the potential immigration consequences of a plea may
constitute ineffective assistance of counsel].) But by the time the defendant
filed her second motion, that requirement had been eliminated, and she only
had to show she prejudicially failed to understand the immigration
consequences of her plea. (Ruiz, at pp. 1068–1070.) Because the second
motion involved “a different standard for challenging and prevailing on
immigration advisement errors,” the defendant was not collaterally estopped
from bringing the motion. (Id. at p. 1069.)
The same reasoning applies here. Whereas Suh was required to
prove his attorney was ineffective when he petitioned to vacate his guilty plea
25 years ago, that was not the case when he filed his section 1473.7(a)(1)
motion in 2024. (Ibid.) Hernandez confirms this is an important point of
distinction because the error analysis under section 1473.7(a)(1) turns not on
what the defendant was advised regarding the possible immigration
consequences of his plea, but on whether he meaningfully understood those
consequences and whether he was able to defend against or knowingly accept
them. (Hernandez, supra, 20 Cal.5th at pp. 614, 622–626.) Because Suh’s
section 1473.7(a)(1) motion involved a different standard than was used to
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assess his prior challenges to his guilty plea, the trial court erred in finding
the motion was barred by res judicata principles.
In resisting this conclusion, the Attorney General attempts to
characterize the trial court’s ruling as only applying issue preclusion to the
narrow issue of Suh’s credibility. Because the judge who heard Suh’s coram
nobis/habeas petition in 2002 did not believe Suh’s testimony that he was not
advised regarding the immigration consequences of his guilty plea, the
Attorney General contends the trial court was justified in relying on that
finding to deny Suh’s motion under section 1473.7(a)(1).
However, even if Suh had been advised of the immigration
consequences of his guilty plea, that would not, by itself, resolve the key issue
in his section 1473.7(a)(1) motion, which is whether he meaningfully
understood those consequences. Therefore, the habeas judge’s credibility
finding on that advisement issue would not preclude Suh from pursuing relief
under section 1473.7(a)(1), in accordance with the guidance of Hernandez.
Consequently, to the extent the trial court relied on issue preclusion to deny
Suh’s motion, the court’s ruling was incorrect.
III.
HERNANDEZ COUNSELS IN FAVOR OF REMAND
Following the Supreme Court’s ruling in Hernandez, we directed
the parties to file supplemental briefing on that decision. In so doing, we
pointed out Hernandez not only provides guidance on what type of evidence is
relevant under section 1473.7(a)(1) and how motions filed under that section
should be adjudicated; it also addressed the proper disposition for appeals—
like the one presently before us—involving section 1473.7(a)(1) motions that
were pending when Hernandez was decided. As to that issue, the Hernandez
court stated:
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“[R]emand to the trial court for further development of the record
will be appropriate in many appeals from denials of section 1473.7(a)(1)
motions that are pending when we issue our decision. As the concurring and
dissenting opinion observes, remand would allow the defendant an
opportunity to make a fuller presentation of evidence with the guidance we
have provided in mind and would permit the trial court to make a new ruling
taking that additional evidence into account.” (Hernandez, supra, 20 Cal.5th
at p. 621, fn. 4.)
In his supplemental briefing, the Attorney General acknowledged
remand may be appropriate in some section 1473.7(a)(1) cases pending on
appeal at the time Hernandez was decided. However, the Attorney General
argued that, in this case, we should affirm the trial court’s ruling without
remand for two reasons: (1) even if Suh could prove he did not understand the
immigration consequences of his guilty plea, he failed to establish resulting
prejudice, and (2) the law respecting section 1473.7(a)(1) motions was more
developed when Suh invoked the statute than when the defendant in
Hernandez did.
As to the first point, the Attorney General correctly notes Suh did
not present much evidence in support of his section 1473.7 motion in this
case. Indeed, whereas the defendant in Hernandez provided detailed evidence
indicating she prejudicially misunderstood the immigration consequences of
her guilty plea, Suh tendered a declaration that seems relatively thin in
comparison. (See Hernandez, supra, 20 Cal.5th at pp. 611–612 [describing the
testimonial and documentary evidence the defendant relied on in support of
her section 1473.7(a)(1) motion].)
However, at the time Suh filed his declaration, he did not have
the guidance of the Hernandez decision, which details the type of evidence
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that is typically needed to support a section 1473.7(a)(1) motion. Remanding
the matter to allow Suh the opportunity to make a more robust record with
this guidance in mind will provide a “‘greater . . . opportunity for effective
persuasion and meaningful review.’” (Hernandez, supra, 20 Cal.5th at p. 618,
quoting People v. Espinoza, supra, 14 Cal.5th at p. 325.)
In opposing remand, the Attorney General correctly notes that
much of the discussion in Hernandez was devoted to the “error” prong of the
section 1473.7(a)(1) analysis, as opposed to the “prejudice” prong. (Compare
Hernandez, supra, 20 Cal.5th at pp. 618–626 [error analysis] with id. at pp.
626–629 [prejudice analysis].) But as the Hernandez court plainly stated
“[e]vidence relevant to the error inquiry will often also be relevant to the
prejudice inquiry.” (Id. at p. 627.)
For example, if the defendant provides evidence he did not
meaningfully understand the actual and potential immigration consequences
of his plea and the options for defending against those consequences (such as
negotiating for an immigration-safe plea), that would not only bear on the
“error” prong of section 1473.7(a)(1). It also would be relevant to the
“prejudice” prong of the statute, which focuses on whether the defendant
would have rejected the plea had he known of those consequences and
options. Thus, the Attorney General’s attempt to divorce the “error” prong of
section 1473.7(a)(1) from the “prejudice” prong is unpersuasive.
In his second argument for affirming without remand, the
Attorney General relies on the fact the Supreme Court had already
established the basic legal framework for adjudicating section 1473.7(a)(1)
motions by the time Suh made his motion in 2024. (See, e.g., People v.
Espinoza, supra, 14 Cal.5th 311, which was decided in 2023, and People v.
Vivar, supra, 11 Cal.5th 510, which was decided in 2021.) However, the
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Hernandez case was the California Supreme Court’s first opportunity to
“provide specific guidance” on section 1473.7(a)(1), a “relatively new and
evolving statute.” (Hernandez, supra, 20 Cal.5th at p. 629 (conc. & dis. opn. of
Corrigan, J.).) Consistent with Hernandez, we conclude Suh should be given
the opportunity “to make a fuller presentation of evidence with [that]
guidance . . . in mind.” (Id. at p. 621, fn. 4.)
DISPOSITION
The trial court’s postjudgment order denying Suh’s section
1473.7(a)(1) motion is reversed and the matter is remanded for further
proceedings consistent with the California Supreme Court’s decision in
Hernandez.
GOODING, J.
WE CONCUR:
MOORE, ACTING P. J.
SERVINO, J.
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