NEW Appellate Opinion Analyzing Penal Code section 1473.7

On December 23, 2020, the California Court of Appeal, Fourth Appellate District, certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7, in People v. Esteban Zarate Bravo, Appellate Case No. E072782.

The defendant (appellant) in this matter pleaded guilty in 1997 to violating Penal Code section 273.5(a), “Domestic Violence,” and Penal Code section 273a(a), “Child Cruelty,” both felonies. In December of 2018 the defendant filed a joint motion to vacate the judgment pursuant to Penal Code section 1016.5 and 1473.7, which the trial court denied. The defendant subsequently appealed.

According to the appellate opinion, at the time of the defendant’s plea he was in custody and was using the services of a Spanish language interpreter, as he was a native to Mexico and Spanish was his first language. Prior to entering his plea, the defendant was admonished of his rights via a written waiver form, commonly referred to as a “Tahl Form,” which he initialed and signed. Included in this waiver form was an admonishment stating: “If I am not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

According to the appellate court, an immediate advantage of defendant taking the plea was the time-served sentence he would receive which would allow him to be released from custody that same day, return to his job without being fired, and avoid a “sweep of the county jail” by Immigration and Customs Enforcement (ICE), which was scheduled to occur that next morning.

In his post-conviction motions to vacate the pleas, defendant contends that after recently consulting with his immigration counsel he was advised that these convictions will result in certain denial of his intended citizenship application, that he was never informed that he could be deported at any time after entering these pleas, and that he is otherwise eligible for lawful permanent status through his wife who is a U.S. citizen. He further claimed that he was never admonished of the immigration consequences pursuant to Penal Code section 1016.5.

At the time that the defendant originally executed his declaration, he was under the belief that no copy of the Tahl Form existed. However, subsequent to filing the motion, the trial court found a copy in the court file and provided it to the parties. The defendant then acknowledged that the admonishment had been provided and that he initialed and signed in the appropriate areas on the form.

The trial court ruling on the post-conviction motions determined that the Penal Code section 1016.5 claim fails given that the waiver form shows that the defendant was properly admonished. Further, as to defendant’s argument pursuant to Penal Code section 1473.7, the trial court denied the claim that he was factually innocent of the charges, as the defendant alleged. The trial court also denied the claim that he did not meaningfully understand the immigration consequences of his plea as he initialed the section on the waiver form stating that he understood each of the consequences of his plea.

The appellate court here began its analysis by recognizing that the words “may have” in a Penal Code section 1016.5 advisement are not an adequate advisement for defendants with serious offenses mandating deportation or other severe immigration consequences, citing People v. Ruiz (2020) 49 Cal. App. 5th 1061, 1065. The proper advisement in these circumstances is that the “defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequences of the conviction. However, the appellate court further states that the defendant here has not met the standard to support a claim that he was not so advised.

The appellate court states that the defendant’s only declaration for this matter is the one presented to the trial court in which he states in absolute terms that “The Court and the Prosecution did not convey to me any immigration consequences attached to this plea. I was not admonished about the immigration consequences pursuant to PC § 1016.5.” The trial court subsequently found this declaration to be incredible, after finding the properly executed waiver form in the court file.

This declaration contains the only direct evidence presented as to whether the defendant would have taken the plea in 1997 had he been aware of the immigration consequences he claims counsel never gave him. Citing In re Alavernaz (1992) 2 Cal. 4th 924, 938, the appellate court cites that “a defendant’s self-serving statement - after trial, conviction, and sentence - that with competent advice he or she would have accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.” According to the court of appeal, judges should instead look to contemporaneous evidence to substantiate a claim, to which defendant presented none besides statements in his declaration regarding his desire to support his family. According to the appellate court, these statements bolster the People’s argument that he accepted the plea to obtain release and resume his job, not to substantiate his claim that he would have refused the plea bargain had he known of the ultimate immigration consequences.

Accordingly, the appellate court upheld the denials of defendant’s post-conviction motions to vacate.

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