People v. Rodriguez

Filed 8/30/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent, A159679

v. (Napa County Super. Ct.
VANESSA S. RODRIGUEZ, No. CR121064)
Defendant and Appellant.

Vanessa S. Rodriguez appeals from the trial court’s denial of her 2020
motion under Penal Code section 1473.7 1 to vacate her 2005 conviction for
felony possession for sale of a controlled substance, methamphetamine, in
violation of Health and Safety Code section 11378. 2 Section 1473.7 permits
individuals who are no longer in custody to move to vacate a conviction or
sentence on the ground it 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” the plea. (§ 1473.7, subd. (a)(1).) At the time Rodriguez filed her motion,

1 Statutory references are to the Penal Code unless otherwise stated.
2 Rodriguez also based her motion on section 1016.5, which requires a
trial court, before accepting a plea of guilty or nolo contendere, to advise a
defendant that if he or she is not a citizen, the conviction may have certain
immigration consequences, including deportation. On appeal, Rodriguez does
not argue the trial court failed to provide this advisement.
1
she had been detained by federal authorities and was facing mandatory
deportation to her country of birth, Mexico, because of that conviction. She
has since been deported. 3
In 2005, Rodriguez pleaded no contest to the charge of possession for
sale in violation of Health and Safety Code section 11378 (as well as to
transportation of a controlled substance, methamphetamine, in violation of
Health and Safety Code section 11379 4) as part of a negotiated disposition of
a multi-count case against her and was placed on probation. She brought her
motion soon after she was detained by federal authorities. She submitted a

3 The People do not contend that deportation moots this appeal,
presumably because her record of conviction, which the trial court declined to
vacate, may continue to prevent her entry into this country in the future.
(See Zegarra-Gomez v. I.N.S. (9th Cir. 2003) 314 F.3d 1124, 1127 [“case or
controversy requirement is satisfied where the petitioner is deported, so long
as he was in custody when the habeas petition was filed and continues to
suffer actual collateral consequences of his removal”]; United States v. Marsh
(1st Cir.1984) 747 F.2d 7, 9, fn. 2 [although defendants had been deported,
their record of conviction constituted a “continuing harm” that may prevent
their entry into this country in the future” and “[a]ccordingly, their appeals
are not moot”].) Regardless, even if the case were moot for some reason, we
would exercise our discretion to consider it because it poses issues of broad
public interest, as seen by the Legislature’s own declarations regarding
sections 1473.7 and 1016.2, which we will discuss, and because Rodriguez
argues trial court errors in implementing section 1473.7 that are likely to
recur without appellate court guidance. (County of Fresno v. Shelton (1998)
66 Cal.App.4th 996, 1006 [appellate courts have the discretion “to decide a
case which, although technically moot, poses an issue of broad public interest
that is likely to recur”].)
4 At the same time, Rodriguez also pleaded no contest to and was
convicted of transportation of methamphetamine under Health and Safety
Code section 11379. She does not seek to have that conviction vacated, and
the People do not argue that the transportation conviction rendered her
deportable or resulted in her inability to show prejudice from denial of the
motion to vacate the sale conviction. We therefore do not address that
conviction.
2
declaration of her own and a declaration of the supervising attorney of the
law office that represented her in 2005, stating that her possession for sale
conviction was legally invalid because in 2005 a prejudicial error damaged
her ability to meaningfully understand the actual or potential adverse
immigration consequences of her no contest plea. The declarations further
stated that, but for this error, it was reasonably probable she would not have
entered the plea. She stated that she had come to the United States when
she was an infant and had lived in this country ever since, and that her
family, including her two young children, her parents and her five sisters, all
live in the United States. The trial court rejected her motion on the grounds
that she appeared to be on probation in another case, which it held would bar
her motion under the terms of section 1473.7, and that in any event she failed
to show there was a reasonable probability that she would not have entered
her no contest plea if she had been fully informed of its adverse immigration
consequences.
We review this case under the guidance recently provided by our
Supreme Court in People v. Vivar (2021) 11 Cal.5th 510 (Vivar), which directs
appellate courts to independently review lower court rulings on
section 1473.7 motions that are based entirely on documentary evidence. We
conclude the trial court erred in rejecting Rodriguez’s motion. Rodriguez was
no longer in custody in the underlying case, and her probation status in a
wholly separate case did not bar her motion. Further, she showed it was
reasonably probable that she would not have entered her no contest plea if
she had known its adverse immigration consequences. That she was not
advised of these consequences by her attorney and was not aware of them is
corroborated by the supervising attorney’s declaration based on his review of
Rodriguez’s 2005 case file. That this failure to advise was prejudicial is

3
apparent because of Rodriguez’s undisputed, deep, lifelong connections to this
country, the dire consequences of her plea and the likelihood that she would
have fought harder to avoid these consequences if she had known of them. It
is at least as probable that she would have not entered her no contest plea as
that she would have. We therefore reverse.
BACKGROUND
Rodriguez filed her motion in Napa County Superior Court in
January 2020 (2020 motion) with three supporting declarations. As we detail
further in the Discussion section, Rodriguez was 22 years old in 2005 and had
previously committed a few relatively minor offenses that did not involve
drugs. In her 2020 declaration, she stated that her life and her family had
been entirely in the United States since she was a year old; that she was not
informed of, and did not know, the actual or potential adverse immigration
consequences of her 2005 no contest plea to the possession for sale charge and
that she would not have entered it if she had known them. A supervising
attorney of the law office that represented Rodriguez in 2005 declared that
Rodriguez’s 2005 case file contained extensive notes by her attorney but did
not indicate her attorney ever looked into, or advised Rodriguez about, the
possible immigration consequences of Rodriguez’s plea. Rodriguez’s 2020
attorney declared that the adverse immigration consequences of her
possession for sale conviction, which, as an “aggravated felony” under federal
law, rendered her deportable from, and unable to gain readmission to, the
United States.
The People opposed Rodriguez’s motion, contending she did not
establish that prejudicial error damaged her ability to understand the
adverse immigration consequences of her no contest plea for multiple
reasons.

4
 After reviewing these briefs and hearing argument, the trial court
denied Rodriguez’s motion. The court ruled that Rodriguez’s existing formal
probation status in an unrelated case made her ineligible to move under
section 1473.7. The court also concluded that Rodriguez did not show
prejudicial error, since she failed to prove ineffective assistance of counsel
and likely would have pleaded no contest no matter what her knowledge in
light of the overwhelming evidence of her guilt.
Rodriguez subsequently filed a timely notice of appeal. 5
DISCUSSION
I.
The Enactment and Amendment of Section 1473.7
The Legislature enacted section 1473.7 in 2016. We briefly lay out the
historical circumstances giving rise to its enactment.
For many years, adverse immigration consequences of guilty pleas were
considered indirect or collateral matters and, thus, trial courts were not
required to advise defendants of them. (People v. Mejia (2019)
36 Cal.App.5th 859, 866-867 (Mejia).) In 1977, the Legislature
enacted section 1016.5 (added by Stats. 1977, ch. 1088, § 1), which requires
trial courts to advise criminal defendants, “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

5 The trial court denied Rodriguez’s request for a certificate of probable
cause, but Rodriguez does not need such a certificate to maintain her appeal.
(§ 1473.7, subd. (f) [“An order granting or denying the motion is appealable
under subdivision (b) of Section 1237 as an order after judgment affecting the
substantial rights of the party”]; see also People v. Arriaga (2014) 58 Cal.4th
950, 960 [no certificate required for an appeal from a denial of a section
1016.5 motion to vacate a conviction].) The People do not contend otherwise.

5
to the United States, or denial of naturalization pursuant to the laws of the
United States.” (§ 1016.5, subd. (a).) Defense attorneys, however, were still
under no particular duty to discuss these potential adverse immigration
consequences with their clients, although an affirmative misrepresentation
about them could constitute ineffective assistance. (Mejia, at p. 867.) Thus,
unless a defendant actually inquired about immigration consequences,
“counsel could generally rely on the court’s immigration advisement.” (Ibid.)
In 2010, the United States Supreme Court issued Padilla v. Kentucky
(2010) 559 U.S. 356 (Padilla). It held that an attorney is constitutionally
ineffective under the Sixth Amendment if he or she fails to advise a client-
defendant of the actual or potential adverse immigration consequences of
pleading guilty to a criminal charge. In 2015, the California Legislature
enacted section 1016.3, which essentially codified the holding of Padilla by
requiring defense counsel to “provide accurate and affirmative advice about
the immigration consequences of a proposed disposition” and, when
consistent with the defendant’s informed consent and with professional
standards, “defend against those consequences.” (2015 Stats., ch. 705, § 2,
eff. Jan. 1, 2016.)
In the meanwhile, however, the Supreme Court, in Chaidez v. United
States (2013) 568 U.S. 342, had held Padilla is not retroactive. Thus, Padilla
does not provide grounds for vacating a conviction that was final prior to
2010 by a defendant who was not properly advised by counsel of the actual or
potential adverse immigration consequences of a guilty or no contest plea.
In 2016, the California Legislature adopted section 1473.7, effective
January 1, 2017. Section 1473.7, subdivision (a) as originally written
“creat[ed] a mechanism to allow individuals who are no longer imprisoned to
move to vacate a conviction or sentence on the ground that ‘[t]he conviction or

6
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.’ ” (People v. Rodriguez (2021) 60 Cal.App.5th 995,
1002 (Rodriguez), quoting former section 1473.7, subd. (a)(1); Stats. 2016,
ch. 739, § 1.) Former section 1473.7, subdivision (e)(1) provided (and
continues to provide), “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).” (Stats. 2016, ch. 739, § 1; § 1473.7, subd. (e)(1).) Further, “If
the court grants the motion to vacate a conviction or sentence obtained
through a plea of guilty or nolo contendere, the court shall allow the moving
party to withdraw the plea.” (Stats. 2016, ch. 739, § 1; § 1473.7, subd. (e)(3).)
“As explained in the report of the Senate Committee on Public Safety
when considering the bill that became former section 1473.7 (Sen. Com. on
Pub. Safety, Rep. on Assem. Bill No. 813 (2015-2016 Reg. Sess.) June 22,
2015 (Pub. Safety, Rep. on Assem. Bill No. 813)), the purpose of the
legislation was to ‘fill a gap in California criminal procedure’ (Pub. Safety,
Rep. on Assem. Bill No. 813, at p. 5) by providing a means to challenge a
conviction by a person facing possible deportation who is no longer in
criminal custody and thus for whom a petition for a writ of habeas corpus is
not available: ‘California lags far behind the rest of the country in its failure
to provide its residents with a means of challenging unlawful convictions
after their criminal sentences have been served. . . . [¶] This omission has a
particularly devastating impact on California’s immigrant
community . . . . Many immigrants suffer convictions without having any idea
that their criminal record will, at some point in the future, result in

7
mandatory immigration imprisonment and deportation, permanently
separating families. [¶] . . . Challenging the unlawful criminal conviction is
often the only remedy available to allow immigrants an opportunity to
remain with their families in the United States. Yet, in California, affected
individuals have no way of challenging their unjust convictions once
probation ends, because they no longer satisfy habeas corpus’ strict custody
requirements.’ (Pub. Safety, Rep. on Assem. Bill No. 813 at pp. 4-5.) The
Senate report continued, ‘This bill creates a new mechanism for post-
conviction relief for a person who is no longer in actual or constructive
custody. Specifically, it allows a person to move to vacate a conviction due to
error affecting his or her ability to meaningfully understand, defend against,
or knowingly accept the actual or potential immigration consequences of the
conviction.’ (Public Safety, Rep. on Assem. Bill No. 813 at p. 6.)” (People v.
Fryhaat (2019) 35 Cal.App.5th 969, 976-977.)
Unlike the Padilla rule, Section 1473.7 applies retroactively, allowing
challenges to pleas entered into before it was adopted. (People v. Perez (2018)
19 Cal.App.5th 818, 824-829; People v. Espinoza (2018) 27 Cal.App.5th 908,
912-914; People v. Tapia (2018) 26 Cal.App.5th 942, 949; see People v.
Morales (2018) 25 Cal.App.5th 502 (Morales) [granting section 1473.7 motion
of party who pleaded and served time for a crime in 2002].)
California courts initially interpreted section 1473.7 to require
defendants to prove ineffective assistance of counsel, following an analysis
like that in Padilla. “California courts uniformly assumed . . . that moving
parties who claim prejudicial error was caused by having received erroneous
or inadequate information from counsel, must demonstrate that counsel’s
performance fell below an objective standard of reasonableness under
prevailing norms, as well as a reasonable probability of a different outcome if

8
counsel had rendered ineffective assistance.” (People v. Camacho (2019)
32 Cal.App.5th 998, 1005-1006 (Camacho).)
In 2018, the Legislature amended section 1473.7, effective
January 1, 2019 (Stats. 2018, ch. 825, § 2), clarifying that the judicial
interpretation of section 1473.7 to require a showing of ineffective assistance
of counsel was not what it had intended. (See Stats. 2018, ch. 825, § 1,
subd. (b); see Camacho, supra, 32 Cal.App.5th at p. 1007.) The Legislature
added this sentence to the end of the 2018 version of section 1473.7,
subdivision (a)(1): “A finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (Stats. 2018, ch. 825, § 2)
This amended version of section 1473.7 governed when the trial court
considered Rodriguez’s motion to vacate her conviction in 2020. 6 “[T]he
Legislature’s declarations included the following: ‘(c) This measure shall be
interpreted in the interests of justice and consistent with the findings and
declarations made in Section 1016.2 of the Penal Code’; and, ‘(d) The State of
California has an interest in ensuring that a person prosecuted in state court
does not suffer penalties or adverse consequences as a result of a legally
invalid conviction.’ (Stats. 2018, ch. 825, § 1(c) & (d).)” (Camacho, supra,
32 Cal.App.5th at p. 1007.)
The declarations in section 1016.2 that the Legislature reiterated as
the underpinnings for interpretation of section 1473.7, include that:
“[In Padilla] the United States Supreme Court found that for
noncitizens, deportation is an integral part of the penalty imposed for

6 The Legislature subsequently amended section 1473.7 again, as part
of the California Racial Justice Act of 2020, to provide relief to persons who
could show their conviction or sentence was based on race, ethnicity, or
national origin in violation of section 745, subd. (a). (Stats. 2020, ch. 317,
§ 5.) That amendment is not relevant to this appeal.

9
criminal convictions” and “may be by far the most serious penalty flowing
from the conviction” (§ 1016.2, subd. (c));
“With an accurate understanding of immigration consequences, many
noncitizen defendants are able to plead to a conviction and sentence that
satisfy the prosecution and court, but that have no, or fewer, adverse
immigration consequences than the original charge” (§ 1016.2, subd. (d));
“Defendants who are misadvised or not advised at all of the
immigration consequences of criminal charges often suffer irreparable
damage to their current or potential lawful immigration status, resulting in
penalties such as mandatory detention, deportation, and permanent
separation from close family” (§ 1016.2, subd. (e));
“In immigration proceedings, there is no court-appointed right to
counsel and as a result, the majority of detained immigrants go
unrepresented. Immigration judges often lack the power to consider whether
the person should remain in the United States in light of equitable factors
such as serious hardship to United States citizen family members, length of
time living in the United States, or rehabilitation” (§ 1016.2, subd. (f)); and
“The immigration consequences of criminal convictions have a
particularly strong impact in California. One out of every four persons living
in the state is foreign-born. One out of every two children lives in a
household headed by at least one foreign-born person. The majority of these
children are United States citizens. It is estimated that 50,000 parents of
California United States citizen children were deported in a little over two
years. Once a person is deported, especially after a criminal conviction, it is
extremely unlikely that he or she ever is permitted to return.” (§ 1016.2,
subd. (g).)

10
 The 2018 amendment of section 1473.7 “made it easier to retroactively
challenge convictions” where the defendant was not properly advised of
immigration consequences by removing judicially created “barriers” to relief.
(People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066-1067.) Since the 2018
amendment, courts have adopted a more expansive interpretation of
section 1473.7, subdivision (a)(1). For example, several have held that, under
the statute as amended, the error need not be one made by defense counsel or
the court but may be one made by the moving party herself if supported by
contemporaneous evidence. (Mejia, supra, 36 Cal.App.5th at pp. 870-871.) 7
Several have held the “prejudice component of the amended statute” does not
require a showing that, if the moving party had rejected the plea and gone to
trial, there is a reasonable probability he or she would have obtained a more
favorable result. Rather, prejudice is established if the movant shows “there
is a reasonable probability [he or she] would not have pleaded guilty–and
would have risked going to trial (even if only to figuratively throw a ‘Hail
Mary’)—had [he or she] known the guilty plea would result in mandatory and
dire immigration consequences.” (Id. at p. 871 [agreeing with Camacho,
supra, 32 Cal.App.5th at pp. 1009-1011]; accord, Ruiz, supra, 49 Cal.App.5th
at pp. 1066-1067.) The California Supreme Court recently interpreted
section 1473.7 to adopt this prejudice standard. (Vivar, supra, 11 Cal.5th at
pp. 529-530.)

7
See also Camacho, supra, 32 Cal.App.5th at pp. 1008-1009; People v.
Jung (2020) 59 Cal.App.5th 842, 846, disapproved on other grounds in Vivar,
supra, 11 Cal.5th at p. 526, fn. 4; People v. Rodriguez, supra, 60 Cal.App.5th
at p. 1005.)
11
 II.
We Independently Review the Trial Court’s Denial of Rodriguez’s
Motion to Vacate Her Conviction.
The parties agree that we should independently review the trial court’s
denial of Rodriguez’s motion, both relying on People v. DeJesus (2019)
37 Cal.App.5th 1124, 1132 [appellate court should “exercise our independent
judgment to decide whether the facts demonstrate deficient performance and
resulting prejudice”].) Since they submitted their briefs, the California
Supreme Court held in Vivar, supra, 11 Cal.5th 510 that appellate courts
should independently review section 1473.7 rulings on motions brought
under subdivision (a) that rely entirely on documentary evidence (Vivar, at
pp. 527-528), as is the case here. Specifically, the court held that, while we
“may not simply second-guess factual findings that are based on the trial
court’s own observations . . . , [w]here . . . facts derive entirely from written
declarations and other documents, . . . there is no reason to conclude the trial
court has the same special purchase on the question at issue; as a practical
matter, the ‘[t]rial court and [the appellate] court are in the same position in
interpreting written declarations’ when reviewing a cold record in a
section 1473.7 proceeding. [Citation.] Ultimately it is for the appellate court
to decide, based on its independent judgment, whether the facts establish
prejudice under section 1473.7.” (Ibid.) The court reasoned that “[a]
standard of independent review . . . is most consistent with section 1473.7’s
purpose: to offer relief to those persons who suffered ‘prejudicial error’ but
are ‘no longer imprisoned or restrained’ and for that reason alone are unable
to pursue relief on habeas corpus. (Legis. Counsel’s Dig., Assem. Bill No. 813
(2015-2016 Reg. Sess.).)” (Id. at p. 525.)
All the evidence submitted to the trial court regarding Rodriguez’s
motion was documentary in nature. Therefore, following Vivar, we conduct

12
an independent review of the motion and are not required to defer to the trial
court’s findings or rulings.
III.
The Trial Court Erred in Holding Rodriguez’s Probation Status for
an Unrelated Conviction Barred Her Section 1473.7 Motion.
Rodriguez and the People agree that the trial court erred in ruling that
Rodriguez was barred under the terms of former section 1473.7 from moving
to vacate her 2005 conviction when she was on probation for another,
unrelated conviction. In this case of first impression, we agree that the trial
court erred as a matter of law.
The People did not argue below that Rodriguez was barred from
bringing her 2020 motion because she then was on probation for another,
unrelated conviction. Nonetheless, the trial court so concluded as its first
reason for denying Rodriguez’s motion. It apparently relied on the opening
provision of section 1473.7, subdivision (a), which states in relevant part, “A
person who is no longer in criminal custody may file a motion to vacate a
conviction” on the ground asserted by Rodriguez here. (Stats. 2018, ch. 825,
§ 2, italics added.)
As we wrote recently in interpreting section 1473.7, “Our interpretation
of the statute begins with, but is not necessarily limited to, its words.
[Citation.] ‘Statutory interpretation is a question of law [citation] in which
we ascertain the Legislature’s intent “ ‘with a view to effectuating the
purpose of the statute, and construe the words of the statute in the context of
the statutory framework as a whole.’ ” ’ [Citation.] ‘We give the words of the
statute “a plain and commonsense meaning” unless the statute specifically
defines the words to give them a special meaning.’ [Citation.]
“ ‘ “If the statutory language is unambiguous, we presume the
Legislature meant what it said, and the plain meaning of the statute

13
controls.” ’ [Citation.] Nonetheless, ‘[w]e may also look to a number of
extrinsic aids, including the statute’s legislative history, to assist us in our
interpretation.’ [Citation.] ‘Courts seek to ascertain the intent of the
Legislature for a reason—“to effectuate the purpose of the law.” ’ [Citation.]
In the end, we should avoid interpreting a statute in a manner which would
both frustrate its purpose and lead to absurd results. [Citation.]” (Morales,
supra, 25 Cal.App.5th at p. 509.)
Section 1473.7’s directive that “[a] person who is no longer in criminal
custody may file a motion to vacate a conviction” does not on its face
conclusively indicate whether a person may move to vacate a particular
conviction at a time when that person is on probation for another, unrelated
conviction (probation being a form of constructive custody (People v. Cruz-
Lopez (2018) 27 Cal.App.5th 212, 220-221). Nonetheless, the language of this
directive, when considered with the remainder of section 1473.7, the
Legislature’s purpose for the statute and the larger statutory framework,
indicates the Legislature intended this clause to mean a person may file a
motion to vacate a conviction provided the person is no longer in criminal
custody for that particular conviction, and nothing more.
First, the language of the directive, i.e., “a person who is no longer in
criminal custody” (italics added), presupposes the movant was once in
criminal custody. The only reason for the Legislature to have presumed a
movant will necessarily have served time is that the statute is providing
potential relief from a plea agreement and resulting conviction in a criminal
matter. The language regarding criminal custody is at minimum susceptible
to the interpretation that “criminal custody” refers to custody resulting from
the plea and conviction being challenged.

14
 Second, to interpret the statute otherwise, as allowing those for whom
a conviction is invalid to challenge it only if they are not in custody for an
unrelated offense, would thwart the Legislature’s purpose of providing a
means for a person who cannot seek habeas corpus to challenge a conviction
on an offense that had adverse immigration consequences. Habeas corpus
provides a mechanism by which a person who is detained may challenge the
legality or the conditions of that detention. As our Supreme Court stated in
People v. Villa (2009) 45 Cal.4th 1063 (Villa), “ ‘once the sentence imposed for
a conviction has completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an individual “in custody”
for the purposes of a habeas attack upon it.’ ” (Id. at p. 1071; see § 1473,
subd. (a) [“A person unlawfully imprisoned or restrained of their liberty,
under any pretense, may prosecute a writ of habeas corpus to inquire into the
cause of the imprisonment or restraint”], italics added.)
The court in Villa held that an individual who was the subject of
deportation proceedings by the federal government, which did not seek to
deport him until 16 years after he was convicted and long after he had
completed his probation, could not obtain relief on habeas corpus because he
was “no longer in California custody as a result of his 1989 conviction.”
(Villa, supra, 45 Cal.4th at p. 1066.) As the court explained, “The key
prerequisite to gaining relief on habeas corpus is a petitioner’s custody.
Thus, an individual in custody for a crime (or alleged crime) may—within
limits—challenge the legality of that detention on habeas corpus.” (Id. at
p. 1069.) “While the continuing existence of the collateral consequences of a
criminal conviction may be relevant to determining a mootness claim
[citation], ‘once the sentence imposed for a conviction has completely expired,
the collateral consequences of that conviction are not themselves sufficient to

15
render an individual “in custody” for the purposes of a habeas attack upon it’
[Citation.]” (Id. at p. 1071.)
When the Legislature enacted section 1473.7, the initiating legislative
committee expressed concern about the limitations described in Villa that
make habeas corpus unavailable for immigrants no longer in custody on the
deportable offense. 8 (Morales, supra, 25 Cal.App.5th at pp. 512-514 & fn. 8.)
Under the trial court’s interpretation of section 1473.7, movants completing
sentences on nondeportable offenses would be deprived of any remedy where,
as here, the federal government proceeds to deport them while they are under
restraint on a nondeportable offense. Such an interpretation would leave
open part of the “ ‘gap in California criminal procedure’ ” the Legislature
sought to close and deny some immigrants of the opportunity the Legislature
created for challenging invalid convictions that can no longer be challenged
by habeas corpus. 9 To adopt that interpretation would contravene the
Legislature’s directive that section 1473.7 “shall be interpreted in the
interests of justice and consistent with the findings made in Section 1016.2 of
the Penal Code.” (Stats. 2018, ch. 825, § 1, subd. (c).) This we will not do.
We conclude the Legislature did not intend to bar persons from moving
under section 1473.7 to vacate a conviction at a time when they are in

8 In Villa, the petitioner was not in state custody but in federal custody
only, while awaiting deportation. However, the court’s discussion indicates
there are two components to the “in custody” requirement for habeas, (1) that
the petitioner be in actual or constructive custody of the state, and (2) that
such custody be a result of the allegedly unlawful conviction or sentence.
9 As the People acknowledge, the holding in People v. Cruz-Lopez,
supra, 27 Cal.App.5th 212 (and likewise People v. DeJesus, supra,
37 Cal.App.5th at pp. 1131-1132) that a movant under section 1473.7 could
not challenge his conviction on the deportable offense while still on probation
(and thus in constructive state custody) for that offense has no bearing here.
In such a circumstance, a movant may still avail himself of habeas corpus.
16
custody for another, unrelated conviction. The trial court erred as a matter of
law in concluding otherwise to deny Rodriguez’s motion.
IV.
Rodriguez Showed It Was Reasonably Probable She Would Not Have
Pleaded No Contest but for Prejudicial Error.
The parties agree that possession of a controlled substance for sale is,
and was at the time of Rodriguez’s plea in 2005, an “aggravated felony” under
federal law, 10 making deportation and exclusion from readmission
mandatory. 11 It is also undisputed that in 2020, when she filed her motion to
vacate her possession for sale conviction, Rodriguez had been taken into ICE
custody and faced mandatory deportation and a bar from readmission as a
result of that conviction. The People do not contest Rodriguez’s showing (or
defend the trial court’s contrary finding) that Rodriguez entered her no
contest plea to the possession for sale charge in 2005 based on an error that
damaged her ability to understand the actual and potential adverse
immigration consequences of that plea. In this appeal, the parties’ dispute is
narrowed to whether the error was prejudicial.
Rodriguez argues the trial court erred in ruling she failed to show it
was reasonably probable she would not have entered her 2005 no contest plea

10 See 8 U.S.C. § 1101(a)(43)(B); United States v. Andrino-Carillo (9th
Cir. 1995) 63 F.3d 922, 925 (Congress defined trafficking in controlled
substance as aggravated felony in the Immigration and Nationality Technical
Corrections Act of 1994, Pub. L. No. 103-416, § 222(a), 108 Stat. 4305, 4320-
22 (1994)); Moncrieffe v. Holder (2013) 569 U.S. 184, 188 (drug trafficking
felony punishable by more than one year’s imprisonment counts as
“aggravated felony” for immigration purposes).
11 See 8 U.S.C. § 1227(a)(2(A)(iii) (mandatory deportation for
aggravated felonies); United States v. Watson (1st Cir. 2004) 386 F.3d 304,
305 (witness’s “conviction for an aggravated felony exposed him to mandatory
deportation” under 8 U.S.C. § 1227(a)(2)(A)(iii)).
17
to the possession for sale charge but for an error that prevented her from
knowing it would lead to her mandatory deportation. We agree.
A. Relevant Proceedings Below
In January 2020, Rodriguez filed her section 1473.7 motion to vacate
her 2005 possession for sale conviction. In her accompanying declaration, she
stated, “I came to the United States when I was one year old. I grew up in
Napa and have lived here all my life. I went to Westwood Elementary School
(now NVLA), Silverado Middle School, and Napa High School. In 2005, as
today, my family and my entire life are in the United States. In 2005 I was
in a committed relationship and had two children here (then aged one and
three) living with us in Napa, and I was pregnant with my third child. I now
have four children here who are all U.S. citizens. My mother is a U.S. citizen,
and my father is a lawful permanent resident who is pending naturalization
as a citizen. I have five sisters who all live in the United States. I have
never lived in Mexico, and I have no family ties or community in Mexico.”
The declaration further stated, “At no time before entry of my [no
contest] plea [in 2005] did my attorney or the Court explain to me that a
conviction of [Health and Safety Code section] 11378 is an ‘aggravated felony’
for purposes of United States immigration law, a conviction which guarantees
deportability, exclusion from the United States, a serious federal felony upon
return, and denial of naturalization.” According to Rodriguez, she pleaded no
contest to the possession for sale charge the day after being jailed, apparently
for failing to appear at a hearing after being released on her own
recognizance. After noting she had a co-defendant in the case, she contended
she was not guilty of the possession for sale offense, but “entered a no contest
plea and accepted the plea deal because I had been taken into custody the
day before and I was desperate to get out of jail and return to my family as

18
soon as possible.” She declared that she “would never have entered the plea
of no contest if I had been aware of the automatic immigration consequences
of such a plea; that is, that the plea would separate me forever from my
children, my parents, my entire family, and the only community I have ever
known.” After she was taken into ICE custody in September 2019 and
consulted an immigration lawyer, she learned for the first time that her
conviction of a violation of Health and Safety Code section 11378 “would be
used by the government to deport and exclude me from readmission into the
United States, and to prevent me from ever becoming a citizen.” In
January 2020, Rodriguez filed her motion. She was represented by counsel
but was unable to attend the hearing because she was in ICE custody.
Rodriguez also submitted a declaration by Mervyn Lernhart, Jr., the
supervising attorney of the conflict public defender office in 2005. Lernhart
stated he had maintained custody and control of the closed case files from
that year. Rodriguez’s case had been handled by an attorney who “wrote
extensive file notes during her representation of Ms. Rodriguez. There is no
indication in any of the file notes that [the representing attorney] ever
examined the immigration consequences that could or would result from the
entry of a guilty or no contest plea to a violation of [Health and Safety Code]
section 11378 in this case, nor that she ever advised Ms. Rodriguez of any
such consequences.” Lernhart added, “As a career defense attorney, I will
state that prior to 2010 and the U.S. Supreme Court’s opinion in Padilla v.
Kentucky, 559 U.S. 356 (2010) [holding that a lawyer is constitutionally
ineffective for Sixth Amendment purposes if he or she fails to advise a client
of the potential immigration consequences of pleading guilty to a criminal
charge], it was not the common practice of defense counsel to research or

19
advise clients regarding the specific immigration consequences of a particular
plea.”
Rodriguez also submitted a declaration by the attorney representing
her in removal proceedings, Aaron M. Morrison. Morrison stated
Ms. Rodriguez is currently married to a United States citizen; her mother
and father are a U.S. citizen and a lawful permanent resident, respectively;
her four siblings are U.S. citizens; and all of her immediate family members
reside in the United States. This includes her four children, aged 8 to 18,
who were born in the United States and are U.S. citizens. Morrison
explained that Rodriguez’s 2005 possession for sale conviction was “classified
as an ‘aggravated felony’ under the Immigration and Naturalization Act
(‘INA’),” which rendered Rodriguez, as a non-citizen, deportable and ineligible
for virtually all forms of discretionary immigration relief and benefits and
rendered her inadmissible to the United States even though she was married
to a United States citizen. Also, in 2005 Rodriguez was eligible to adjust her
immigration status without leaving the country as the beneficiary of a
pending family-based visa petition filed by her mother on her behalf in 1995.
Her conviction of possession for sale disqualified her from obtaining this
relief.
The People opposed Rodriguez’s motion, contending she did not
establish prejudicial error based on 2005 police and probation reports, as well
as Rodriguez’s 2005 plea form, which they attached to their opposition.
These documents indicate police initially pulled Rodriguez over in
March 2005 for driving an unregistered car that displayed false registration
tags. A male passenger with her consented to be searched, leading to the
police discovery of a methamphetamine pipe in his pants pocket. Upon
questioning, Rodriguez said a small amount of methamphetamine was in a

20
“zipper purse” near the driver’s seat. Inside the purse, police found two
Ziploc bags containing methamphetamine and coin-size Ziploc bags. In the
car, they also found a gram scale and what appeared to be Rodriguez’s
backpack, which contained a Ziploc bag of methamphetamine and $500 in
cash. A total of 4.8 grams of methamphetamine were found to be in
Rodriguez’s possession. Two Ziploc bags containing methamphetamine were
also found in the passenger’s pants coin pocket.
After being advised of her Miranda rights, 12 Rodriguez admitted to
selling methamphetamine and to having a smoking pipe on her person.
Police seized the pipe and her cell phone, which rang constantly during the
stop and indicated 51 calls had been missed, and arrested Rodriguez. Upon
further questioning, Rodriguez told police the methamphetamine found in
her possession was for her own use and the $500 in cash was from her work
cleaning houses and babysitting. She admitted having sold drugs to about
five friends, to whom she delivered $20 bags of methamphetamine when they
called her. She said she sold a $20 bag of methamphetamine to a friend in
Napa that night, more that night in Vallejo, and about five bags the night
before in Napa to close friends. She told police a friend gave her the coin-size
Ziploc bags in case she needed them and that she was returning the gram
scale to its owner, although she could not say where he lived.
In their opposition to Rodriguez’s 2020 motion, the People also noted
that, as part of the negotiated disposition of her case, Rodriguez initialed a
statement on her plea form that states: “I understand that, if I am not a
United States citizen, a plea of guilty or no contest could result in my
deportation, exclusion from admission to this country, or denial of

12 Miranda v. Arizona (1966) 384 U.S. 436.

21
naturalization.” Further, the form contains a signed declaration by
Rodriguez’s attorney in 2005 stating that she explained the “consequences of
the plea[s]” to Rodriguez.
The People further contended that in 2020, Rodriguez had five open
criminal cases, including a charged strike offense for assault with a deadly
weapon allegedly committed while she was on grants of probation for petty
theft and driving with a suspended license. Further, she was on a grant of
deferred entry of judgment for possession of a methamphetamine pipe, was
convicted in 2005 of felony possession of forged checks and was convicted in
2016 of a misdemeanor offense.
Based on this information, the People argued Rodriguez failed to show
that a prejudicial error damaged her ability to understand the actual or
potential adverse immigration consequences of her 2005 no contest plea to
possession for sale. First, her initialing of the 2005 plea form statement and
her then-attorney’s declaration established that she had been sufficiently
informed that her plea could have possible adverse immigration
consequences. Second, her 2020 declaration statement that she had not been
advised of these adverse immigration consequences in 2005 was not credible
because she also stated that she was not guilty of possession for sale despite
having confessed to police in 2005 that she was selling methamphetamine to
friends. Third, her contention that she would not have entered the no contest
plea if she had known its adverse immigration consequences was belied by
her criminal record after 2005, which showed her repeated willingness to act
in ways that jeopardized her residency in the United States. Fourth, there
was no reason to believe she would have rejected the 2005 plea deal because,
given the overwhelming evidence of her guilt, it was a better result than a

22
conviction after a trial that would have exposed her to the same adverse
immigration consequences.
At the hearing, in addition to his previous arguments, Rodriguez’s
counsel contended the court should believe Rodriguez’s assertion that she
would not have pleaded no contest to possession for sale if she had known it
would cause her deportation because in 2005 she had honestly admitted to
police, against her interest, that she sold a modest amount of
methamphetamine to friends; a relatively small amount of
methamphetamine was found in her possession, supporting her assertion
that it was for her personal use; and she was unlikely to have gone to prison
after a trial in light of her modest criminal record and the circumstances of
the case. He argued Rodriguez had a “good case” for which she could have
negotiated the same disposition on an “immigration safe” plea. Counsel
further argued the “vague” plea advisement about possible immigration
consequences contained in the 2005 plea form was insufficient to advise
Rodriguez of the adverse immigration consequences of her plea. He
acknowledged that, as of the 2020 hearing, Rodriguez was on probation for a
petty theft.
In addition to his previous arguments, the prosecutor contended it was
unclear that Rodriguez’s deportation for her 2005 possession for sale
conviction was “automatic,” since she had not been detained for deportation
until several months before the 2020 hearing. This suggested that “if she
hadn’t continued to tangle with the law she might not have become under
federal custody now.”
After hearing argument, the court denied Rodriguez’s motion. It
initially focused on her then-existing probation status, concluding it meant
Rodriguez “may still be in custody for purposes of [section] 1473.7,” which

23
would prohibit her motion. It also concluded for several reasons that
Rodriguez failed to show it was reasonably probable that she would not have
pleaded no contest to the possession for sale charge due to an error that
damaged her understanding of the plea’s adverse immigration consequences.
First, the court, construing Rodriguez’s motion as probably arguing
ineffective assistance of counsel, found no ineffective assistance because the
United States Supreme Court did not establish a counsel’s duty to inform a
client about specific immigration consequences until five years later in
Padilla, supra, 559 U.S. 356. 13
Second, the court found Rodriguez did not show her 2005 attorney
insufficiently advised her of the actual or potential adverse immigration
consequences of her plea for two reasons: Rodriguez did not submit an
affidavit from that attorney indicating a failure to advise, and a 2005
probation department sentencing report indicated Rodriguez misrepresented
to the department that she was a United States citizen, suggesting that she
“may have told” her lawyer the same thing. The court apparently concluded
this misrepresentation eliminated any reason for her attorney to inform her
of the adverse immigration consequences of her plea.
Third, the court found Rodriguez had little likelihood of success at a
trial in 2005 in light of her “full confession to law enforcement about selling
methamphetamine to friends” and the $500 and scale found in her
possession. It doubted a prosecutor would have allowed her to plead to
simple possession in light of her confession. The court concluded, “And so I

13 Finding no ineffective assistance of counsel, the court stated, “And
I’m not certain if [Rodriguez’s 2020 attorney] is alleging I.A.C. It sounds like
maybe he is. And the court can consider whether the [2005 attorney], there is
no way she could have known that the Sixth Amendment required a criminal
defense attorney to advise of immigration consequences way back in 2005.
The law didn’t change regarding that requirement until 2010.”
24
think the outcome that she got . . . is probably pretty consistent with the
evidence that the People had at the time. And I think the break she got was
that she was released [from jail] . . . . That’s the benefit she got. That’s the
chance she was willing to take. But I don’t see that she did that without any
real understanding of the possible immigration consequences of this case
because, A, I question whether she ever told her attorney at the time that she
was not a U.S. citizen, and, B, I don’t know that there was any I.A.C. by her
attorney regarding her decision to or her lack of admonishment regarding
any possible immigration consequence.” The court continued, “And again
given the nature of the charges in this case and the evidence that was
stacked up against [Rodriguez], I don’t see that this was a case that she was
eager to defend against despite her affidavit to the contrary as part of this
motion today.” The court also agreed with the prosecutor that Rodriguez
“kind of created her own bed” by continuing to engage in criminal activity
after 2005 that could also cause her adverse immigration consequences. “So,”
the court continued, “I don’t think that this is probably the case that’s driving
her concerns at this point. So I’m going to deny the motion.”
B. Relevant Legal Standards
As we have already discussed, since the 2018 amendment of
section 1473.7, “a person’s own error in not understanding or knowingly
accepting that a guilty plea will have certain and adverse immigration
consequences may constitute prejudicial error entitling the person to relief
under section 1473.7.” (People v. Jung, supra, 59 Cal.App.5th at p. 846;
Mejia, supra, 36 Cal.App.5th at p. 871 [“the 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’ ”]; Rodriguez, supra, 60 Cal.App.5th at

25
p. 1005 [defendant’s lack of awareness of a change in his sentence
“constituted a prejudicial error”].)
Further, as our Supreme Court has explained, a person moving under
section 1473.7 to vacate a conviction must also show that the error is
prejudicial. (Vivar, supra, 11 Cal.5th at p. 528.) “Although the statute
doesn’t itself define what ‘prejudicial’ means, we can glean the meaning from
its context.” (Ibid.) Relying on other immigration-related statutes in which
it had interpreted similar prejudice requirements, the court held that
“showing 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 [movant]
has shown that reasonable probability, they consider the totality of the
circumstances. [Citation.] Factors particularly relevant to this inquiry
include the 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 disposition was possible.” (Id. at pp. 529-
530.)
Also, movants under section 1473.7 must provide evidence
corroborating their assertions. “ ‘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, quoting
Jae Lee v. United States (2017) 582 U.S. ___, 137 S.Ct. 1958, 1967 (Lee)
[discussing how to evaluate the “reasonable probability” that a defendant

26
who would have rejected a plea deal but for counsel’s erroneous advice about
deportation in an ineffective assistance of counsel case].)
C. Analysis
The trial court’s reasoning for concluding Rodriguez did not establish
an error under section 1473.7 raises concerns that merit discussion even
though the parties do not dispute that error was shown.
First, the court suggested Rodriguez’s motion was based on ineffective
assistance of counsel even though Rodriguez did not argue ineffective
assistance in her motion or at the hearing. Instead, she asserted that her
attorney did not inform her, and she did not know, the specific and dire
consequences of her plea. Since the 2018 amendment, our courts have
consistently held that prejudicial error may be based on the movant’s own
misunderstanding and that a movant need not prove ineffective assistance.
Second, the court relied on her purported misrepresentation to the
probation department in 2005 that she was a United States citizen. The
probation department’s reference is contained in a social history summary
that does not identify the source. The finding of misrepresentation was
speculative.
Third, the court rejected Rodriguez’s assertion that she was not
informed of the adverse immigration consequences of her plea because the
attorney who represented her in 2005 did not submit an affidavit. An
affidavit of counsel is not required as long as there is some contemporary
corroborating evidence, which there is in this case. Lernhart, the custodian
of Rodriguez’s file, declared it contains extensive notes but no indication that
the attorney researched or discussed with Rodriguez the adverse immigration
consequences of her plea. Further, at the time of Rodriguez’s plea, Lernhart
was the supervising attorney of the public defender’s office where her counsel

27
was employed. He stated that prior to the Padilla decision in 2010, it was
“not the common practice of defense counsel to research or advise clients
regarding the specific immigration consequences of a particular plea.”
Fourth, after commenting that Rodriguez had created “her own bed”
since the conviction by her continued criminal behavior, the court concluded,
“I don’t think that this [2005 possession for sale case] is probably the case
that’s driving her concerns at this point.” We understand the court’s concern
about Rodriguez’s continued criminal behavior. Nevertheless, what might be
her “driving concerns” in 2020 is irrelevant to whether she entered a plea in
2005 because of an error or would not have entered the plea but for that
error.
Having addressed these concerns, we now turn to the primary issue in
dispute, whether the trial court erred in holding Rodriguez did not show
prejudice. We address this issue keeping in mind that, as we have discussed,
under Vivar, we are not required to defer to the trial court’s findings and
conclusions, since they are based on a paper record. (See Vivar, supra,
11 Cal.5th at pp. 527-528.)
We cannot agree with the trial court’s conclusion, based on the totality
of the circumstances, that Rodriguez failed to show a reasonable probability
that she would have rejected the plea and would have sought a different
bargain with less drastic immigration consequences if she had known the
consequences of the plea she entered. The trial court relied heavily on the
potential outcome of Rodriguez’s trial and gave short shrift to the evidence of
her lifelong residence in and connection to the United States and the
presence of her family here. It disregarded her assertion that she entered the
plea because she had been taken into custody, was pregnant, and had young
children at home.

28
 As Vivar instructs, “Factors particularly relevant to this inquiry
include the 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 disposition was possible.” (Vivar, supra,
11 Cal.5th at pp. 529-530.) As one appellate court reviewing a section 1473.7
ruling observed, quoting the United States Supreme Court, “ ‘[C]ommon
sense . . . recognizes that there is more to consider than simply the likelihood
of success at trial. The decision whether to plead guilty also involves
assessing the respective consequences of a conviction after trial and by plea.
[Citation.]’ [Citation.] In Lee, the court found that the defendant had
demonstrated a reasonable probability that he ‘would have rejected any plea
leading to deportation—even if it shaved off prison time—in favor of throwing
a “Hail Mary” at trial.’ ” (Camacho, supra, 32 Cal.App.5th at pp. 1010-1011,
quoting Lee, supra, 582 U.S. ___ [137 S.Ct. at pp. 1966, 1967].)
Our analysis rests on the meaning of “reasonably probable.” It does not
mean more likely than not. We have not found an opinion that discusses its
meaning in evaluating a section 1473.7 ruling, but our Supreme Court and
appellate courts have repeatedly explained it in other cases evaluating the
impact of an error, including with regard to ineffective assistance of counsel
claims. As we most recently observed in evaluating the impact of an
evidentiary error under state law, “A ‘reasonable probability’ ‘does not mean
more likely than not, but merely a reasonable chance, more than an abstract
possibility.’ [Citation.] It ‘does not mean “more likely than not,” but merely
“probability sufficient to undermine confidence in the outcome.” ’ [Citations.]
Therefore, reversal is necessary when it cannot be determined whether or not
the error affected the result, as in such a case there ‘exists . . . at least such

29
an equal balance of reasonable probabilities’ ‘ “that it is reasonably probable
that a result more favorable to the appealing party would have been reached
in the absence of error.” ’ [Citation.]” (People v. Hardy (2021) 65 Cal.App.5th
312, 329-330; see also People v. Beck and Cruz (2019) 8 Cal.5th 548, 668 [a
reasonable probability of a different result is shown when the error
“ ‘ “undermines confidence in the outcome” ’ ”]; People v. Mar (2002)
28 Cal.4th 1201, 1225 [under the reasonable probability standard, “reversal
is required when there exists ‘at least such an equal balance of reasonable
probabilities as to leave the court in serious doubt as to whether the error
affected the result’ ”]; People v. Mower (2002) 28 Cal.4th 457, 484 [same].)
Rodriguez plainly met this “reasonable probability” standard. She
presented evidence indicating it was at least equally and reasonably probable
that in 2005, faced with certain deportation that would remove her from all
that she knew and held dear if she pleaded no contest to possession for sale,
she would have insisted on pleading no contest to a different, more
immigration-neutral charge (whether it was realistic to insist on such a deal
or not) or gambled on a “Hail Mary” trial.
We base this conclusion, first, on Rodriguez’s deep, lifelong ties to the
United States. Other courts have found such ties to be very persuasive.
Rodriguez’s ties to the United States are very similar to those considered by
our Supreme Court in Vivar, such as: (1) Vivar, who as a lawful resident
noncitizen of the United States, faced permanent deportation for a 2002 drug
conviction under former Health and Safety Code section 11383 (Vivar, supra,
11 Cal.5th at pp. 516-517), and was brought to the United States at a very
young age (id. at p. 516), just as Rodriguez was brought here as an infant; (2)
Vivar’s family was in the United States (id. at p. 517) just like Rodriguez’s
family, which as of 2005 included her mother, father and five sisters and her

30
own two children; (4) Vivar grew up in the United States and attended
schools here (id. at pp. 517-518) just like Rodriguez, who attended primary,
middle and high schools in Napa; (5) Vivar had been in the United States for
decades (id. at p. 520) just like Rodriguez had been in California for virtually
all of her 22 years; and (6) Vivar, like Rodriguez, indicated that he lacked
meaningful ties to the country of his birth, Mexico (id. at p. 516). The
Supreme Court summarized Vivar’s extensive ties to the United States (and
also cited correspondence Vivar wrote around the time he entered his plea)
and concluded that the appellate court “neglected to explain why these facts
at or near the time of Vivar’s plea failed to provide adequate corroboration
that he wouldn’t have pleaded guilty had he known it would result in his
deportation. Indeed, the court’s analysis failed to mention these facts at all.
This was error. In our view, these objective and contemporaneous facts
corroborate, in a most convincing way, the statement in Vivar’s declaration
that he ‘would never have plead[ed] [g]uilty’ if his attorney had informed him
of the plea’s consequences. (See Camacho, [supra,] 32 Cal.App.5th at
pp. 1101-1012 [finding prejudice where the defendant was brought to the
United States as a child, had lived here for over 30 years, and his spouse and
children were citizens]; accord, Lee, supra, [582] U.S. ___ [137 S.Ct. at
p. 1968] [finding prejudice where the defendant was brought to the United
States as a child, had lived here for nearly 30 years, and his parents were
citizens].)” (Id. at p. 531; see also People v. Espinoza, supra, 27 Cal.App.5th
at p. 917 [“Because defendant resided in the United States since he was four
years old as a lawful permanent residence, his family resided in the United
States, and he was employed as a maintenance supervisor at a Holiday Inn,
it could be reasonably probable that defendant would have rejected any plea
that would have mandated deportation”]; People v. Ogunmowo, supra,

31
23 Cal.App.5th at p. 73 [movant’s declaration indicated he would have
rejected plea deal, having moved across the globe and established his life in
the United States].) Here, the trial court largely ignored the undisputed
evidence of Rodriguez’s deep, lifelong ties to the United States. This was
error. It is compelling evidence that Rodriguez would not have pleaded no
contest to a charge that led to her mandatory deportation to Mexico.
Further, while we agree with the trial court that there was ample
evidence to support Rodriguez’s possession for sale conviction, we disagree
that she would neither have sought to obtain a more immigration-neutral
plea deal nor risked going to trial if she had known of the dire immigration
consequences of a possession for sale conviction, and instead would have
pleaded no contest to that charge. The record does not indicate that in 2005
Rodriguez extensively trafficked in methamphetamine or had such a serious
criminal record that the prosecution would necessarily have been unwilling to
enter an immigration-neutral plea. Nor does it show Rodriguez was without
any plausible defense. She could have claimed—as she implied in her
declaration—that it was her companion, not Rodriguez, who intended to sell
the methamphetamine found in her car, and she made admissions and
pleaded no contest simply because she was desperate to get out of jail and
return to her family as soon as possible. Also, she pleaded no contest not only
to the charge of possession for sale, but also to the charge of transportation of
methamphetamine (conviction of which no one argues would have led to her
mandatory deportation). Under these circumstances, she may well have
insisted that any plea deal involve her no contest plea to the transportation
or another more immigration-neutral charge.
Second, the record indicates Rodriguez never tested the prosecution’s
resolve. Instead, she agreed to a plea deal the very next day after she was

32
jailed for apparently failing to appear at a hearing in her case because, she
states in her 2020 declaration, she wanted “to return to her family as soon as
possible,” an assertion that is not disputed. In other words, she hardly
negotiated, if at all, in order to return to her family, including her two small
children, right away. Her desire to do so is a further indication that she
would have done all she could to avoid pleading no contest to a charge that
would lead to her mandatory deportation and separation from her family for
the rest of her life.
Finally, in 2005 Rodriguez had only a modest criminal record that did
not include any drug offenses. Therefore, she reasonably could have believed
that even if she risked all on a “Hail Mary” trial she might in the end have
received probation on similar terms to what she received by pleading no
contest.
Given these circumstances, and in light of her deep, lifelong bonds in
the United States, we fail to see how any court could confidently look back
and conclude that if she had understood the consequences of her plea,
Rodriguez would not have bargained for an immigration-neutral plea deal or
risked going to trial in an effort to avoid certain deportation. We conclude it
is reasonably probable that she would have. Therefore, we must reverse.
DISPOSITION
The trial court’s denial of Rodriguez’s section 1473.7 motion is reversed
and the matter is remanded to the trial court with instructions to grant the
motion and vacate Rodriguez’s 2005 possession of a controlled substance for
sale conviction. (See Camacho, supra, 32 Cal.App.5th at p. 1012 [“The
appropriate remedy is to direct the trial court to grant the motion”].)

33
 STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.

People v. Rodriguez (A159679)

34
Trial Court: Napa County Superior Court

Trial Judge: Hon. Elia Ortiz

Counsel:

L. Richard Braucher, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Katie L. Stowe,
Deputy Attorneys General, for Plaintiff and Respondent.

35