NEW Eighth Appellate Opinion Analyzing Recently Enacted Penal Code section 1473.7

On September 28, 2018, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.[1]

In 2012, the defendant in People v. Edgar Espinoza, 2018 S.O.S. 4837, out of the Superior Court of Riverside County, pled guilty to a violation of Health and Safety Code section 11378. Mr. Espinoza subsequently filed a motion to withdraw his plea pursuant to Penal Code section 1018 claiming that he was not advised of the immigration consequences of his plea. This motion was denied. On January 23, 2017, Mr. Espinoza filed a motion to withdraw his plea under Penal Code section 1473.7. This motion was denied and Mr. Espinoza appealed.

Mr. Espinoza contends that the trial court abused its discretion in denying his motion to vacate his conviction pursuant to Penal Code section 1473.7. The People argue the motion was properly denied for the following reasons: (1) the statute does not apply retroactively and (2) Mr. Espinoza was “well aware” of the immigration consequences of his plea.

As to Section 1473.7’s retroactivity, the court agreed with their colleagues in People v. Perez (2018) 19 Cal. App. 5th 818, that the Section is retroactive and applicable to defendants who pled guilty prior to the Statute’s effective date.

The court stated that the issue was whether a prejudicial error damaged the defendant’s ability to meaningfully understand or accept the actual or potential adverse immigration consequences of his guilty plea. The defendant contended that he made a sufficient showing that his trial counsel rendered ineffective assistance of counsel and that he was prejudiced by the deficiency.

During the plea colloquy in this matter, the defendant acknowledged that he signed the plea form and it had been fully explained to him. This plea form advised Mr. Espinoza that the offense “may have the consequences of deportation, exclusion from admission to the U.S., or denial of naturalization pursuant to the laws of the United States.” In his motion pursuant to Section 1473.7, the defendant argued that his trial counsel rendered IAC when he failed to properly advise the defendant of the immigration consequences and failed to defend against them.

At the hearing on the motion, the defendant’s trial counsel testified that he did not have specific recollection of representing the defendant but that it was his habit and custom to, at the very least, review the Tahl form with his client and answer any specific questions he or she may have. He further testified that his notes for the matter did not reference any discussion of immigration consequences and he was not aware at the time that he represented the defendant that the charge he was convicted of was considered an “aggravated felony” for federal immigration purposes. He also testified that he did not believe that he attempted to seek a plea with better immigration consequences and he did not believe that he consulted with immigration counsel on behalf of his client.

The court of appeal stated that from the evidence it is clear that Mr. Espinoza’s trial counsel did not know that pleading guilty to the charged offense would mandate deportation of the defendant, as it was considered an aggravated felony. Further, the court of appeal stated that although the defendant was advised that he could be deported, he was not informed that deportation would be mandatory. The court proceeded to state that this is not a situation where deportation was a possibility – this offense mandated deportation. Thus, trial counsel should have been aware of or researched the actual immigration consequences and advised the defendant. Simply going over the waiver form and advising Mr. Espinoza that he could be deported, is objectively deficient performance under prevailing professional norms, according to the court of appeal.

The court of appeal found that the defendant had established he was prejudiced by this deficiency because he was raised in the U.S. since he was 4 years old as a lawful permanent resident, his family resided in the U.S., he was employed as a maintenance supervisor at the Holiday Inn and it could be reasonably probable that he would have rejected any plea that would have mandated deportation. Thus, the court of appeal held that the trial court erred in denying Mr. Espinoza’s motion.


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[1] Penal Code section 1473.7 became effective on January 1, 2017 and states, in pertinent part, as follows:

(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:

(1) The conviction or sentence is legally invalid due to a 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 plea of guilty or nolo contendere.

(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.

(b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following:

(1) The date 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.

(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

(c) A motion pursuant to paragraph (2) of subdivision (a) shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section.