People v. Salas CA4/2

Filed 6/15/21 P. v. Salas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075277

v. (Super.Ct.No. FVA1100791)

MISAEL MADRIGAL SALAS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bridgid M.

McCann, Judge. Reversed.

Quadros & Cuellar, Micheli Quadros and Sarah Cuellar for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Marvin E. Mizell Deputy Attorneys General, for Plaintiff and Respondent.

In 2012, defendant and appellant Misael Madrigal Salas, a Mexican citizen, pled

no contest to two misdemeanor counts of indecent exposure and one felony count of false

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impersonation of another. Defendant voluntarily left the United States in April 2012 after

immigration proceedings were instituted against him based on his indecent exposure

convictions. In 2019, defendant filed a motion to set aside his conviction pursuant to

Penal Code section 1473.71 (motion) and additionally relied on section 1016.5. He

submitted his own declarations attesting that he would not have entered a guilty plea if he

was informed by his counsel, and the court, of the immigration consequences at the time

he entered into the plea. The trial court denied the motion without a hearing. The trial

court excluded defendant’s declarations based on defendant not being available for cross-

examination (he lived in Tijuana); denied any further continuance for defendant to set up

a video conference to make him available for cross-examination; and refused to consider

the motion under section 1016.5.

Defendant appeals, contending (1) he was not afforded a hearing on the merits of

the motion pursuant to sections 1016 and 1473.7; (2) the trial court failed to hear and

make a ruling on the additional ground raised in the motion that he was entitled to relief

under section 1016.5;; (3) the trial court should have granted the motion because the

record supports that the trial court never gave him immigration warnings, which is

grounds for the court to grant the motion pursuant to section 1016.5; (4) the trial court

erred by finding that his declaration and his wife’s declaration submitted in support of the

motion were inadmissible hearsay; and (5) once the declarations are considered, the

motion should be granted by this court.

1 All further statutory references are to the Penal Code unless otherwise indicated.

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 FACTUAL AND PROCEDURAL HISTORY

A. SUMMARY OF FACTS

Defendant pled guilty and no appeal was taken from the entry of his plea. As

such, the only facts are those from the police report. On May 26, 2011, in Fontana,

defendant exposed his genitals and masturbated in front of two females he did not know,

at two separate locations. Defendant was arrested and found in possession of a false

social security card and a false permanent resident card.

B. PLEA AND SENTENCE

Defendant was charged in a felony complaint in count 1 with “use of false

documents” (all caps. omitted) (§ 114) and in counts 2 and 3 with misdemeanor indecent

exposure (§ 314, subd. (1)). Defendant entered into a plea agreement, which provided

that count 1 would be dismissed, defendant would admit to the misdemeanor indecent

exposure in counts 2 and 3, and the information would be amended to add a charge of

false impersonation of another (§ 529) in count 4, which he would admit. Defendant was

advised in the plea agreement that the possible state prison sentence for a violation of

section 529 was 16 to 23 months but the district attorney had agreed to a 16-month

sentence with credit for time served. Defendant would serve no additional prison or jail

time.

Defendant initialed the following language that appeared on the plea agreement:

“I understand that if I am not a citizen of the United States, deportation, exclusion from

admission to the United States, or denial of naturalization will result from a conviction of

the offense(s) to which I plead guilty/no contest.” Defendant signed the plea agreement

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on March 9, 2012. Included was a certificate of the interpreter who declared, under

penalty of perjury, that the entire contents of the plea agreement were translated from

English to Spanish directly to defendant and that defendant signed the plea agreement.

Defendant’s counsel, San Bernardino County Deputy Public Defender Maria Lacorte,

attested on the plea agreement that she “personally read and explained the contents of the

above Declaration to the Defendant” and observed defendant sign the Declaration.

The minute order states “The Court, after readvisement of each of these rights,

finds that the Defendant understands the charge(s), the possible penalties, right against

self-incrimination, to confront and cross[-]examine witnesses, to a public and speedy

trial, to Jury trial, to have an attorney present at all stages of the proceedings and to the

Public Defender if indigent and to the compulsory process of the court to subpoena

witnesses.” The reporter’s transcript from the plea agreement proceedings was not made

part of the record. Defendant was sentenced to state prison on count 4 to the low term of

16 months. He was to serve 180 days in county jail on counts 2 and 3. He was given

credit for time served and did not have to serve any additional time.

C. MOTION

On August 29, 2019, seven years after defendant entered his guilty plea, defendant

filed his motion, which was entitled “Notice of Motion and Motion to Vacate Conviction

and Set Aside Guilty Plea Pursuant to California Penal Code § 1473.7.” (All caps.

omitted.) Defendant’s counsel noted that defendant would be absent from the

proceedings because he lived in Mexico and was not eligible to enter the United States.

Defendant’s counsel provided in the body of the motion that it was brought under

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sections 1016, 1473.7 and 1385 on the grounds that defendant’s former counsel, Lacorte,

and the deputy district attorney did not fulfill their duty under section 1016, defendant

was not aware that he would be deported and he was entitled to have his plea vacated in

the interests of justice. Further, defendant’s trial attorney did not make an effort to

negotiate an immigration-safe plea. Defendant was unaware that his guilty plea would

have “profound immigration consequences.” Defendant pleaded guilty but was not aware

of the actual deportation consequences. Defendant’s counsel alleged that defendant

would not have pleaded guilty if he had known that deportation proceedings would be

brought against him causing him to agree to voluntary depart the United States.

Defendant’s counsel contended that Lacorte was ineffective. Lacorte never

discussed with defendant the immigration consequences of the plea bargain. Further, she

did not seek an alternative disposition that would not have immigration consequences.

Lacorte had to provide an unequivocal warning to defendant that he would probably be

deported. Defendant’s counsel also argued that the prosecution failed to properly

consider the immigration consequences when negotiating the plea as required pursuant to

section 1016.3.2

Defendant’s counsel argued that defendant was prejudiced by Lacorte’s

performance as he was left with no alternative but to leave the United States. His crime

made him deportable. Defendant would have rejected the plea even though he would be

required to serve more jail time. Defendant’s counsel finally argued that the trial court

2 Section 1016.3 was effective January 1, 2016. (Stats. 2015, c. 705 (AB 1343)
§ 2, eff. Jan. 1, 2016.) As such, it does not seem applicable to a plea negotiated in 2012.

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had the power pursuant to section 1385 to dismiss defendant’s convictions in the interests

of justice.

In support of the motion, defendant provided his own declaration. He originally

entered the United States in 2004 in pursuit of a better life. He was unable to appear in

court on the motion due to his “inadmissibility” to enter the United States. He married

Nancy Vargas Plasencia in Mexico in November 2016. They had been dating since 2006.

She was a United States citizen. They had a daughter on August 14, 2017. He gave his

version of the events leading to his arrest and claimed that he was innocent. Defendant

admitted the documents in his possession at the time of his arrest were fake. He insisted

his time in jail was “unbearable as I was beat several times, emotionally and physically

abused.” Other inmates asked him to transport drugs for them when he went to court

appearances, and when he refused, they beat him up. None of his attorneys spoke

Spanish and they had to rely on an interpreter. Lacorte never told him that he was going

to be deported. “The interpreter told me that there could be immigration consequences.

She also said that it was the norm to tell immigrants that.” Lacorte never told him about

any alternative plea agreements.

Defendant claimed, “If I knew the certainties of immigration consequences I

would not have accepted the plea deal.” He accepted the plea bargain based on Lacorte

advising him that it was the best option for him. He would be willing to do more jail time

to avoid the immigration consequences. Defendant claimed that he lived in Tijuana due

to the criminal charges against him.

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 Other evidence attached to the motion included the felony complaint; police

reports; and the minute order from the plea deal, which is set forth ante. The reporter’s

transcript of the taking of defendant’s plea was not provided. Defendant admitted he was

born in Mexico.

Nancy Vargas Plascencia also provided a declaration. She was married to

defendant and they had a daughter. Defendant had to leave the United States because of

the criminal charges. While defendant was in jail, he was beaten and threatened. “Misael

tried to keep his plea of ‘not guilty.’ However, due to the circumstances he was

experiencing in jail, we felt that it was best that he accepted a plea so he could be

released and safe.” Plascencia and defendant had no knowledge when he accepted the

plea that he would be deported from the United States if he did not voluntarily leave. He

would have not accepted the plea if he had known. Plascencia had to take care of their

child by herself and had to send defendant money.

Defendant’s counsel also provided a declaration. She attested that she contacted

Lacorte on July 2, 2019. Lacorte provided her notes from the plea, which included,

“Client wants to plead guilty to less time. Understand he will be deported. Not a US

citizen.” Lacorte would not provide a declaration because she had no other recollection

of the case except what was in the notes. She did not respond to defendant’s counsel as

to whether she sought an alternative disposition with no immigration consequences.

Defendant’s counsel also provided information prepared by the Immigrant Legal

Resource Center on the immigration consequences for different crimes. Plascencia’s

father and mother provided declarations regarding how hard it was for Plascencia to raise

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her daughter without defendant’s help. Also included with the motion were pictures of

defendant and his daughter.

D. OPPOSITION TO THE MOTION

The San Bernardino County District Attorney’s office filed opposition to the

motion on October 11, 2019. The People argued that the motion should be denied

because it was untimely, parts of the statute were unconstitutional as applied to this case,

defendant could not obtain relief unless he was subject to cross-examination, and he had

failed to show attorney error or prejudice.

The People noted that Lacorte represented defendant and that a Spanish interpreter

helped with the plea agreement. Defendant was facing five years for the section 114

charge in count 1 of the felony complaint and the plea agreement that was negotiated

dismissed this charge. Defendant was given credit for the time he served in jail and was

released from custody. The People noted that the written plea agreement contained a

provision notifying defendant of the possibility he would be deported and that he had

sufficient time to consult Lacorte regarding the meaning of the plea agreement.

Defendant acknowledged being assisted by an interpreter. Lacorte attested on the written

plea agreement that she explained the contents of the plea agreement.

The People objected to the consideration and admission of defendant’s declaration

unless he was subject to cross-examination. Although a hearing pursuant to section

1473.7 allows the hearing to proceed without defendant upon a finding of good cause, the

People were still entitled to due process pursuant to Article I, section 29 of the California

Constitution which provided for cross-examination. Further, information in defendant’s

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declaration regarding his current family situation was irrelevant. The People objected on

the grounds of hearsay to Plascencia’s declaration. Further, the materials from the

Immigrant Legal Resource Center should be excluded. The declarations of Plascencia’s

parents should be excluded as irrelevant, they were not executed under penalty of perjury

and were hearsay.

The People also stated that it did not concede that sections 314 and 529 rendered

defendant deportable and excludable. Defendant had the burden of showing that he was

deportable and excludable due to the criminal charges in the case. He did not provided

the court with a notice to appear filed in federal court initiating the immigration

proceedings.

The People additionally argued that the motion was untimely. Defendant had not

shown reasonable diligence in filing the motion. Defendant must have filed the motion

within a reasonable time of discovering the immigration consequences. According to

defendant, he was aware of the immigration consequences in 2012 but waited until

September 2019 to file the motion, which was two years after section 1473.7 took effect.

The People argued the statute violated the principle of separation of powers.

Defendant’s judgment was final in 2012. Section 1473.7 was effective in 2017. Section

1473.7 could not be used to vacate defendant’s judgment without violating the separation

of powers.

The People additionally contended that defendant had failed to provide

corroborative evidence of his claims that he would not have taken the plea agreement if

he had been adequately advised of the immigration consequences. Defendant’s self-

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serving statement had to be corroborated. The People alleged defendant was properly

advised of the immigration consequences. Further, at the time of the plea, Lacorte did

not have an obligation to investigate immigration consequences or negotiate a non-

deportable sentence. Attached to the opposition, was the complete police report.

On January 16, 2020, defendant filed a waiver of appearance pursuant to section

977, subdivision (a).

Defendant’s counsel filed a reply to the People’s opposition to the motion.

Defendant was willing to submit to cross-examination but was not available. Defendant

had been deported from the United States and the court was unable to compel his

appearance. Defendant had good cause as to why he could not be present at the hearing

on the motion. According to defendant, he was unable to obtain a green card to testify.

Defendant’s due process rights would be violated by having his declarations excluded.

The only way to be subject to cross-examination would be by illegally crossing the

border. The declarations were sufficient evidence to support defendant’s motion. He

would have not pled guilty if he had been aware of the immigration consequences. His

declaration was admissible as a hearsay exception because he was unavailable.

The declarations from Plascencia and her family were admissible to show the

consequences of his deportation. Further, defendant was diligent in seeking relief.

Defendant argued that section 1473.7 was valid and he was entitled to its protections.

Attached as an exhibit, defendant’s counsel provided the notice to appear, which

initiated deportation proceedings against defendant based on the section 314, subdivision

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(1) charge. Defendant agreed to voluntary departure in lieu of removal. Defendant was

to depart on or before April 9, 2012.

Defendant submitted a supplemental declaration. He retained an attorney

immediately upon becoming aware of section 1473.7. Defendant additionally declared,

“I did not receive immigration warnings by the court as required under PC Section

1016.5.” New declarations were submitted from Plascencia’s parents. Also included was

a letter from a law firm explaining immigration consequences of different crimes.

E. FIRST HEARING ON MOTION

On January 24, 2020, the trial court held a hearing on the motion. The trial court

noted that the statements by defendant in his declarations were contradicted by the court

file. Based on the conflict, the People would need to cross-examine defendant. The trial

court felt it could not consider defendant’s declarations without the opportunity for the

People to cross-examine defendant. The trial court also expressed concern regarding the

emails between Lacorte and defendant’s current counsel. The statements by Lacorte

were privileged and defendant had not waived the privilege. Based on the exclusion of

defendant’s declaration and the emails, there was no evidence for the trial court to

consider in ruling on the motion. The People tried to admit the email from trial counsel

as evidence in its favor but the trial court excluded it. Lacorte3 was in court and could be

subject to cross-examination by defendant.

3 Since 2012, Lacorte had changed her last name to Lee.

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 Defendant’s counsel requested a continuance to further brief the issue of the

admission of defendant’s declaration. The trial court again expressed that section 1473.7

did not address the complete inability of a defendant to be cross-examined on a

declaration. The declaration was contradicted by other evidence so cross-examination of

defendant was crucial. The trial court granted the continuance for the sole purpose of

defendant’s counsel providing case law that allowed the motion to proceed without

defendant being available for cross-examination. The trial court also noted the

declaration from Plascencia was hearsay and would not be considered.

F. ADDITIONAL FILINGS

After the hearing, on February 4, 2020, defendant’s counsel filed a request for the

trial court to issue a subpoena for defendant’s appearance under section 1342; a request

for defendant to appear by video call; and a request for continuance to allow another

counsel to travel to Tijuana to appear with defendant on the video call. Defendant was

willing to present himself at the hearing if allowed to enter the United States. If

defendant could not appear, defendant’s counsel requested that he be allowed to appear

via a video call.

Defendant’s counsel included defendant’s waiver of appearance pursuant to

section 977, subdivision (a). Defendant’s counsel also submitted a survey and finding

prepared by the Judicial Council of California regarding video remote technology in the

courts. Defendant submitted another supplemental declaration indicating he was willing

to appear by video. He could appear by Skype or Facetime.

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 Defendant’s counsel also submitted a supplemental brief of cases in support of the

motion. Counsel argued that the People’s right to due process was not equivalent to the

defendant’s right to due process, and it would be a violation of defendant’s due process

rights to exclude his declaration; it was the only way he could raise the issue. The

reporter’s transcript of the plea agreement had been lost. Counsel also referred to

subdivision (d) of section 1473.7, which allowed for the hearing to proceed without

defendant’s presence if defendant’s counsel was present and the court finds good cause as

to why the defendant could not attend the hearing. Defendant’s counsel argued that the

trial court should admit the defendant’s declaration as defendant’s due process rights

outweighed the People’s rights.

Another hearing was conducted on February 14, 2020. The trial court advised

defendant’s counsel that the court did not issue subpoenas but that counsel could try to

subpoena defendant. The trial court then addressed the request for continuance for

defendant to appear by video conference. The People objected arguing that video

conferencing was not appropriate for cross-examination. The People did not believe that

there was a constitutional right to appear by video conference. Defendant’s counsel

argued that defendant wanted to be present but was not allowed in the United States.

The trial court noted there was video technology for arraignments. Cameras were

set up through the Department of Corrections and there were courtrooms set up to view

the video. However, the trial court was unaware of video conferencing being utilized for

cross-examination in the trial courts. The trial court was willing to grant a continuance if

defendant’s counsel could set up a system where the trial court and attorneys could see

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defendant, and defendant could see the trial court and the attorneys. The trial court was

willing to allow defendant’s counsel to try to set up the appropriate video conferencing

by the next hearing, which was scheduled for February 21, 2020.

The People filed supplemental opposition to defendant appearing by video

conference. The People had a right to cross-examination. The People had due process

rights under Article I, section 29, and defendant was seeking to enforce a state statutory

right. The People insisted that they were entitled to cross-examination in person. There

was no authority permitting the court to have cross-examination of witnesses by video

conference. The People would be prejudiced as they would not be able to adequately

cross-examine him with documents.

Defendant’s counsel filed a response to the supplemental opposition filed by the

People. Defendant had the right to exercise his right under the law to bring the motion

under section 1473.7. There was no question defendant was unavailable. The motion

could be supported by defendant’s declaration. The trial court placed an undue burden on

defendant in trying to exercise his rights. He would be required to spend thousands of

dollars to pay counsel to go to Tijuana and also to provide adequate video equipment.

Defendant’s counsel asked that the trial court allow defendant to participate remotely

with the equipment, means and resources defendant was able to afford and allow his

declarations to be admitted as evidence if the equipment provided was not satisfactory.

G. RULING

The trial court heard argument on February 21, 2020. The trial court reiterated

that it was not going to consider defendant’s declarations if he was not available for

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cross-examination. The trial court was concerned because defendant’s credibility was

paramount in the case. The trial court found defendant was unavailable but it was still

not appropriate to consider his affidavit. The trial court noted that unavailability was

required for some hearsay exceptions but in itself was not a hearsay exception.

Defendant’s counsel argued that the only way defendant could be heard in the case was

through his declaration. Defendant’s counsel also noted the trial court gave only three

days to defendant to set up the video call.

The People argued that no cases were presented to the court that it could consider

cross-examination by video conference for a Penal Code section 1473.7 motion.

Pursuant to Evidence Code section 773, subdivision (a), the People had a statutory right

to cross-examine defendant. Evidence Code section 711 required that it be done in court.

Further, the Legislature had provided for video testimony for arraignments and

vulnerable victims, but not for a motion pursuant to section 1473.7.

Defendant’s counsel insisted that the motion also raised a claim pursuant to

section 1016.5. It was a clerical error that it did not appear in the caption of the motion.

Defendant’s counsel argued that just initialing the plea agreement was not sufficient

evidence that defendant understood the plea agreement.

The trial court took the matter under submission.

The trial court denied the motion on June 1, 2020. The trial court submitted its

findings and ruling in writing. The trial court noted that defendant had been represented

by counsel, who was assisted by an interpreter at the time the plea agreement was signed.

The trial court noted defendant initialed the box that he understood he may be deported.

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The trial court in a footnote stated, “In the motion caption it indicated §1473.7, in the

notice it was indicated as §§ 1016, 1473.7 and 1385. This ruling is only as to the §

1473.7 as that was the decision of counsel being the appropriate section.”

The trial court granted the section 977 waiver of appearance filed by defendant but

indicated that such waiver did not absolve defendant of any evidentiary obligation. The

trial court also found the motion was timely. Further, the misdemeanor conviction of

section 314, subdivision (1), was the cause of defendant’s removal from the United

States.

The trial court found defendant’s declarations were not admissible because he was

not subject to cross-examination. Defendant’s credibility was “paramount” and the

People had a due process right to cross-examination. The trial court could not rely on

defendant’s self-serving declarations and the declarations conflicted with the court

record. The trial court concluded, “Without cross-examination, the court could not make

a determination on the credibility of the Defendant as to any issue. While the court

recognizes the difficulties this presents to those having been removed, it is a fundamental

evidentiary issue without which this court cannot make proper rulings. [¶] Defense

proffered remote testimony. This court is not aware of any authority for such. In

reviewing case law as well as the objections raised by the People, this court could not

find any satisfactory manner in which the Defendant could testify remotely.” The trial

court excluded the declarations.

The court excluded any reference to the email from defendant’s counsel at the

time of the plea as defendant had not waived the attorney/client privilege. The other

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declarations from his family were irrelevant to the plea or were hearsay and were

excluded. The trial court again noted that based on counsel’s indication at the hearing,

there would be no ruling under section 1016. However, the trial court additionally stated

that a preponderance of the evidence showed defendant was advised of the possibility of

deportation. The trial court stated, “Additionally, the court did reconsider the remote

testimony in light of the strides made in video access that became necessary during the

emergency, the court continues to deny remote testimony for the reasons stated above.”

The motion was denied.

DISCUSSION

A. SECTION 1473.7 MOTION

Defendant essentially argues as to the section 1473.7 motion that the trial court

erred by excluding his declarations as they were the only way that he could participate in

the proceedings. Such exclusion violated his due process rights. The trial court erred by

finding that the People’s due process rights to cross-examine him outweighed his due

process rights to have his motion heard by the only means available to him. He

additionally contends the trial court placed an undue burden on him to provide and pay

for his video appearance and by denying him a continuance to secure such technology.

Defendant seeks to have this court review the motion de novo and grant the motion based

on his declarations alone.

“Effective January 1, 2017, the Legislature passed Assembly Bill No. 813 (2015–

2016 Reg. Sess.) adding section 1473.7 to the Penal Code. (Stats. 2016, ch. 739, § 1.)

The section provided relief to those people who were ‘no longer imprisoned or

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restrained.’ (§ 1473.7.) According to the author, the bill was necessary because at the

time, ‘under California law, there [was] no vehicle . . . for a person who is no longer in

actual or constructive custody to challenge his or her conviction based on a mistake of

law regarding immigration consequences or ineffective assistance of counsel in properly

advising of these consequences when the person learns of the error post-custody.’ (Sen.

Com. on Public Safety, Com. on Assem. Bill No. 813 (2015–2016 Reg. Sess.) July 7,

2015, at p. 6.)” (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1129 (DeJesus).) The

section has been amended several times.

As amended effective January 1, 2019, section 1473.7, subdivision (a)(1)

provides, “A person who is no longer in criminal custody may file a motion to vacate a

conviction or sentence for either of the following reasons: [¶] . . . The 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 plea of guilty or nolo contendere. A finding of

legal invalidity may, but need not, include a finding of ineffective assistance of

counsel.”4

“All motions shall be entitled to a hearing. Upon the request of the moving party,

the court may hold the hearing without the personal presence of the moving party

provided that it finds good cause as to why the moving party cannot be present. If the

4 Section 1473.7 was amended in 2020 effective January 1, 2021. There is no
significant change from the section applicable at the time that defendant’s motion was
heard and we will refer to the version effective January 1, 2019.

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prosecution has no objection to the motion, the court may grant the motion to vacate the

conviction or sentence without a hearing.” (§ 1473.7, subd. (d), italics added.)

Pursuant to section 1473.7, subdivision (e)(1), in ruling on the motion, “The court

shall grant the motion to vacate the conviction or sentence if the moving party

establishes, by a preponderance of the evidence, the existence of any of the grounds for

relief specified in subdivision (a). For a motion made pursuant to paragraph (1) of

subdivision (a), the moving party shall also establish that 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.”

Subdivision (e)(4) provides, “When ruling on a motion under paragraph (1) of

subdivision (a), the only finding that the court is required to make is whether the

conviction 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 plea of guilty or nolo contendere.”

Under the 2019 version of section 1473.7, a defendant may simply show his own

subjective error in not knowing or understanding his plea’s actual or potential adverse

immigration consequences and need not show ineffective assistance of counsel pursuant

to Strickland v. Washington (1984) 466 U.S. 668, even if the motion is based on errors by

counsel. (People v. Camacho (2019) 32 Cal.App.5th 998, 1008-1009 (Camacho); People

v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia).) As the moving party, the defendant

bears the burden of showing the legal invalidity of his prior conviction by a

preponderance of the evidence. (Camacho, at p. 1005.) “To obtain relief, [a defendant]

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must show by a preponderance of the evidence that the plea was legally invalid due to a

prejudicial error.” (DeJesus, supra, 37 Cal.App.5th at p. 1133.)

The California Supreme Court recently addressed how courts should determine

prejudice in deciding section 1473.7 motions in People v. Vivar (2021) 11 Cal.5th 510

(Vivar). “[S]howing prejudicial error under section 1473.7, subdivision (a)(1) means

demonstrating a reasonable probability that the defendant would have rejected the plea if

the defendant had correctly understood its actual or potential immigration consequences.

When courts assess whether a petitioner has shown that reasonable probability, they

consider the totality of the circumstances. [Citation.] Factors particularly relevant to this

inquiry included 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

deposition was possible.” (Vivar, at p. 485.) “Courts should not upset a plea solely

because of post hoc assertions from a defendant about how he would have pleaded but for

his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to

substantiate a defendant’s expressed preferences.” (People v. Ogunmowo (2018) 23

Cal.App.5th 67, 78 (Ogunmowo).)

The Vivar court also addressed the proper standard of review of a trial’s court

decision on a section 1473.7 motion. It found that the proper standard was “independent

review” finding it appropriate based on multiple factors including, “the history of section

1473.7, the interests at stake in a section 1473.7 motion, the type of evidence on which a

section 1473.7 ruling is likely to be based, and the relative competence of trial courts and

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appellate courts to assess that evidence.” (Vivar, supra, 11 Cal.5th at p. 436.) “ ‘[U]nder

independent review, an appellate court exercises its independent judgment to determine

whether the facts satisfy the rule of law.’ ” (Ibid.) The Supreme Court noted,

“ ‘ “[i]ndependent review is not the equivalent of de novo review.” ’ ” (Ibid.) It

additionally noted that, “In section 1473.7 proceedings, appellate courts should similarly

give particular deference to factual findings based on the trial court’s personal

observations of witnesses.” (Ibid.) It concluded, “Ultimately it is for the appellate court

to decide, based on its independent judgment, whether the facts establish prejudice under

section 1473.7.” (Id. at pp. 36-37.)

However, Vivar and the statute do not address how a trial court should conduct

the hearing on the motion pursuant to section 1473.7. Here, the trial court excluded the

declarations by defendant based on the inability of the defendant to be available for cross-

examination. The trial court found that the People’s right to due process “in this situation

differs from those involving shield statutes etc.” The trial court stated that credibility of

defendant was “paramount.” The determination of credibility required in-person

testimony and cross-examination of defendant. This court has found no case law or

language in the statute that supports the exclusion of a defendant’s declaration when

bringing a section 1473.7 motion. The statute does provide that a hearing on a section

1473.7 motion can proceed without defendant’s presence, and that a hearing need not be

conducted if the People concede that the motion should be granted. It appears that the

trial court incorrectly focused on the due process rights of the People and should not have

excluded the declarations.

21
 In People v. Ault (2004) 33 Cal.4th 1250, the court discussed the due process

rights of the People in determining the proper standard of review (abuse of discretion or

de novo review) when a trial court grants a motion for new trial based on prejudicial juror

misconduct and the People file an appeal. (Id. at pp. 1255, 1259-1260.) The People

argued that the proper standard was de novo arguing “On the assumption that ‘due

process’ means ‘equal process,’ the People urge that if a defendant receives independent

review on the issue of juror bias when the trial court denies a new trial, the People are

entitled to the same standard of review when the trial court finds prejudice and grants a

new trial.” (Id. at p. 1269.) The Ault court stated, “However, we have rejected the notion

that ‘the [P]eople’s right to due process of law must be the exact equivalent to a criminal

defendant’s right to due process.’ (Miller v. Superior Court (1999) 21 Cal.4th 883, 896,

. . . [People’s state constitutional right to due process does not ‘trump’ provisions of state

Constitution’s ‘newsperson’s shield’ provisions, though defendant may have superior

federal due-process and fair-trial right to discover newsperson’s source]; see also

Menendez v. Superior Court (1992) 3 Cal.4th 435, 456-457, . . . [People’s state

constitutional right to due process does not ‘trump’ existing statutory privileges and

immunities, including psychotherapist-patient privilege].)” (Id. at p. 1269.) The court

reasoned, “Certainly the People, and society at large, have a significant interest in

preserving fair convictions. The trial court’s discretion to award a new trial must be

exercised with due regard to this important interest. Nonetheless, the People fail to

persuade us that they have a due process right—equivalent to the defendant’s right to be

free of conviction by a biased jury—to avoid retrying criminal charges before a new jury

22
unless an appellate court comes to an independent conclusion that the trial court’s

determination of prejudice from juror misconduct was correct. We therefore conclude

that article I, section 29 of the California Constitution affords the People no due process

right to independent review of a trial court order granting a new trial on that ground.”

(Ault, supra, 33 Cal.4th at pp. 1269-1270.)

The determination by the trial court in this case placed the People’s due process

rights above those of defendant. Defendant was not available, as determined by the trial

court, but the only way for him to appear at the hearing was by his declaration, which

was excluded. As stated, the Legislature anticipated that some defendants would not be

available for the hearing. The Legislature specifically provided that the hearing on the

section 1473.7 motion could be conducted outside the presence of the defendant.

(§ 1473.7, subd. (d).) There is no indication that the Legislature intended that the

defendant would have to be made available for cross-examination in order for the trial

court to consider the motion and the defendant’s declarations. As such, the Legislature

anticipated there would be no opportunity for the People to cross-examine the defendant

by finding that the hearing was allowed to proceed without the defendant. It places an

undue burden on a defendant who may be in federal custody awaiting deportation, or who

may already have left the United States and cannot return, like defendant in this case, to

be available for cross-examination. It appears the appropriate resolution here was that the

23
declarations were admissible despite defendant being unavailable for cross-examination.5

The trial court should have considered defendant’s declarations in support of the motion.

Such result is supported by Vivar. The California Supreme Court found that

independent review by the appellate court was proper because a majority of these

motions are based on a cold record. It noted, “Where, as here, the facts derive entirely

from written declarations and other documents, however, there is no reason to conclude

the trial court has the same special purchase on the question at issue.” (Vivar, supra, 11

Cal.5th at p. 436.) Although the California Supreme Court did not address the issue

involved here, it recognized that the trial courts may only have a declaration in deciding a

section 1473.7 motion and implied that live testimony was not necessary.

It is further supported by prior cases in which the trial court has considered only

the defendant’s declaration and contemporaneous evidence presented with the motion in

deciding section 1473.7 motions. In Ogunmowo, the defendant sought to have his 1989

conviction vacated wherein he admitted to a charge of possession for sale of a controlled

substance by bringing a section 1473.7 motion. (Ogunmowo, 23 Cal.App.5th at p. 69.)

In 2004, deportation proceedings were instituted against the defendant based on the

conviction. (Id. at p. 71.) He insisted his counsel provided ineffective assistance by

failing to advise him of the immigration consequences. (Id. at pp. 72-73.) The

defendant’s counsel at the time of the plea provided a declaration. He admitted advising

5 Since we conclude that defendant’s declaration was admissible without him
being subject to cross-examination, we need not address whether the trial court erred by
failing to allow for his testimony by video conference.

24
the defendant that there would be no immigration consequences. However, the trial court

did advise the defendant that there could be immigration consequences, including

deportation. The defendant provided a declaration that he did not recall the trial court’s

advisal and would have not taken the plea agreement if he had been properly advised of

the immigration consequences. (Id at p. 73.) The People did not file opposition to the

defendant’s section 1473.7 motion. (Ogunmowo, at p. 73.) The trial court denied the

motion finding that the defendant had failed to show ineffective assistance of counsel

because it was not proven that the immigration consequences were a factor in the

defendant accepting the plea. (Id. at p. 74.)

On appeal, the Ogunmowo court relied on the declarations from the defendant and

his counsel to support that the defendant was misadvised by his counsel that there would

be no immigration consequences, and that the defendant would not have taken the plea

deal if he was aware he would be deported. (Ogunmowo, supra, 23 Cal.App.5th at pp.

76-81.) The court concluded, “Taken together [the defendant’s] declaration and [his trial

counsel’s] affidavit demonstrate a reasonable probability [the defendant] would not have

pleaded guilty if [trial counsel] had not misadvised him. Accordingly, [the defendant]

established prejudice.” (Id. at p. 81.)

In DeJesus, supra, 37 Cal.App.5th 1124, the defendant filed a section 1473.7

motion and submitted his declaration, records regarding his legal status, and a declaration

from his post-conviction attorney in support of his motion. (Id. at p. 1128.) The

appellate court concluded that the defendant had failed to produce sufficient evidence of

prejudice by failing to present contemporaneous evidence to substantiate his post hoc

25
assertion that he would not have accepted the plea agreement if he was aware of the

immigration consequences. (Id. at pp. 1133-1135, 1137.) Although the trial court found

that there was insufficient evidence of prejudice, it considered the defendant’s declaration

despite him not testifying.

The courts have accepted declarations without testimony and considered the

declarant’s veracity in the declarations by considering corroborating evidence from the

time of the plea agreement. As such, the trial court should have admitted defendant’s

declarations and considered the contemporaneous evidence supporting the claims made in

the declarations.

Further, the admission of defendant’s declaration is supported by Code of Civil

Procedure section 2009, which states: “An affidavit may be used to verify a pleading or a

paper in a special proceeding, to prove the service of a summons, notice, or other paper in

an action or special proceeding, to obtain a provisional remedy, the examination of a

witness, or a stay of proceedings, and in uncontested proceedings to establish a record of

birth, or upon a motion, and in any other case expressly permitted by statute.” Code of

Civil Procedure section 1102 makes civil rules of evidence applicable to criminal actions.

The People argue that Code of Civil Procedure section 2009 only applies to motions

brought prior to trial on procedural matters. However, they provide no case law to

support such statement.

Finally, there is no fundamental unfairness to the People in not being allowed to

cross-examine defendant. The trial court cannot grant the motion solely on the self-

serving statements made in the declaration. As stated, “Courts should not upset a plea

26
solely because of post hoc assertions from a defendant about how he would have pleaded

but for his attorney’s deficiencies. Judges should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.” (Ogunmowo, supra, 23

Cal.App.5th at p. 78.) The trial court cannot grant the section 1473.7 motion based solely

on defendant’s declaration. While certainly defendant’s testimony would shed light on

whether he would have accepted the plea, it was not necessary for the trial court to

resolve the motion. The trial court must consider any other contemporaneous evidence

along with the declaration in deciding a section 1473.7 motion. (See Vivar, supra, 11

Cal.5th at p. 438 [“[W]hen a defendant seeks to withdraw a plea based on inadequate

advisement of immigration consequences, we have long required the defendant

corroborate such assertions with ‘ “objective evidence” ’ ”].) Such contemporaneous

evidence can be admitted by counsel. Hence, in order to preserve a defendant’s right to

bring a motion pursuant to section 1473.7, the trial court here should have admitted

defendant’s declaration even without the ability of the People to cross-examine

defendant.

We note that Vivar directs this court to independently review the record and

determine if defendant has shown prejudice. However, in this case, defendant was not

given a hearing on the merits of his motion under the applicable law and the trial court

did not review the motion on its merits. (Pen. Code, § 1473.7, subd. (d) [“[a]ll motions

shall be entitled to a hearing”].) Moreover, it appears the court erred by excluding

Lacorte’s testimony. By raising the claim in the motion that he was not advised by

counsel of the immigration consequences, it appears defendant waived such privilege in

27
connection with the resolution of the motion. (See People v. Ledesma (2006) 39 Cal.4th

641, 690-691; Evid. Code, § 958.) The People were entitled to introduce Lacorte’s

testimony at the hearing. While this court can independently review the record, if the

record is not complete, it appears the appropriate remedy is remand for the record to be

fully developed. As noted in Vivar, “Courts should subject the trial court’s prejudice

finding under this statute to independent review, a standard that heavily weighs trial court

factual findings based on the court’s own observations, but not trial court findings arising

only from a cold record.” (Vivar, supra, 11 Cal.5th at p. 440.) Thus, we will reverse the

trial court’s order and remand the matter for the trial court to review all of the evidence,

which may include testimony from Lacorte, under the prejudice standard set forth in

Vivar.

B. SECTION 1016.5

Defendant further contends the trial court erred by refusing to consider

defendant’s claim pursuant to section 1016.5. He insists the trial court did not advise him

of the immigration consequences when accepting the plea agreement.

Section 1016.5 requires the trial court to administer the following advisement

before accepting a plea of guilty or nolo contendere: “If you are not a citizen, you are

hereby advised that conviction of the offense for which you have been charged 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.” (§ 1016.5, subd. (a).)

28
 Section 1016.5 further provides that if “the court fails to advise the defendant as

required by this section and the defendant shows that conviction of the offense to which

defendant pleaded guilty or nolo contendere may have the consequences for the

defendant of deportation, exclusion from admission to the United States, or denial of

naturalization pursuant to the laws of the United States, the court, on defendant’s motion,

shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo

contendere, and enter a plea of not guilty.” (§ 1016.5, subd. (b).)

To prevail on a motion to vacate under section 1016.5, a defendant must show he

“was not properly advised of the immigration consequences of the plea as required by

section 1016.5, subdivision (a); there existed, 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 the defendant was prejudiced by the nonadvisement.”

(People v. Arendtsz (2016) 247 Cal.App.4th 613, 617.) To show prejudice, the defendant

“must prove it was reasonably probable he or she would not have entered a guilty, no

contest or nolo contendere plea if properly advised.” (Ibid.) “To that end, the defendant

must provide a declaration or testimony stating that he or she would not have entered into

the plea bargain if properly advised. It is up to the trial court to determine whether the

defendant’s assertion is credible, and the court may reject an assertion that is not

supported by an explanation or other corroborating circumstances.” (People v. Martinez

(2013) 57 Cal.4th 555, 565.)

29
 It is well settled that the advisement required by section 1016.5 need not be given

orally. (People v. Quesada (1991) 230 Cal.App.3d 525, 536, superseded by statute on

other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207, fn.

5.) “It is sufficient if . . . the advice is recited in a plea form and the defendant and his

counsel are questioned concerning that form to ensure that defendant actually reads and

understands it.” (Quesada, at p. 536.) “Only if in questioning the defendant and his

attorney the trial court has reason to believe the defendant does not fully comprehend his

rights, must the trial court conduct further canvassing of the defendant to ensure a

knowing and intelligent waiver of rights.” (People v. Castrillon (1991) 227 Cal.App.3d

718, 722.) We review the trial court’s decision to grant or deny a section 1016.5 motion

for abuse of discretion. (People v. Zamudio (2000) 23 Cal.4th 183,192.)6

Here, the motion filed by defendant’s counsel itself was not clear that defendant

was raising a claim pursuant to section 1016.5. However, throughout the proceedings,

defendant’s counsel made it clear that this was an issue to be decided by the trial court.

Defendant, in his supplemental declaration, stated that he did not receive immigration

warnings from the trial court.

The People contend the trial court properly heard argument on defendant’s section

1016.5 motion on February 21, 2020. The record does not support that the trial court

properly considered the section 1016.5 motion at the hearing. During argument that day,

defendant’s counsel stated, “The defendant is moving this Court to vacate its plea based

6 Vivar does not appear to change the standard of review for motions brought
pursuant to section 1016.5.

30
on 1473.7 and 1016.5.” The trial court responded, “Counsel, I didn’t think we were at a

1016.5.” Counsel responded, “Within the motion, yes your honor.” The trial court

stated, “I thought that was specifically denied. Am I confusing cases?” Defendant’s

counsel stated, “I believe so, your Honor.” Defendant’s counsel confirmed that

defendant was claiming he did not receive the court advisals under section 1016.5 and

also received ineffective assistance of counsel.

The People responded that defendant’s counsel had captioned the motion as being

pursuant to section 1473.7 and not section 1016.5. None of the subsequent filings

referred to section 1016.5. If the trial court considered section 1016.5, the plea

agreement was evidence that he was properly advised by the court.

Inexplicably, the trial court stated in its ruling, “the court makes no ruling as to

any PC § 1016 motion based upon counsel’s indication at the time of the hearing.” The

trial court did not consider the merits of defendant’s section 1016.5 motion. As stated in

the written ruling, it found counsel had decided not to pursue the section 1016.5 motion.

Since this court has determined that remand in order for the trial court to consider

the section 1473.7 motion on its merits is appropriate, remand to the trial court for it to

additionally consider the motion pursuant to section 1016.5 is proper. Since we review

the trial court’s ruling on a section 1016.5 motion for an abuse of discretion, the trial

court is in the best position to determine the motion upon remand.

31
 DISPOSITION

We reverse the trial court order denying defendant’s motion. We remand for the

trial court to consider defendant’s motion in accordance with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

RAMIREZ
P. J.

RAPHAEL
J.

32