Filed 6/14/21 P. v. Sosa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E073591
v. (Super.Ct.No. FVA13536)
LUIS A. SOSA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,
Judge. Affirmed.
Karlin & Karlin and Marc A. Karlin for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Adrian Contreras and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Luis A. Sosa appeals from the trial court’s order denying
his Penal Code1 section 1473.7 motion to vacate his guilty plea and conviction. He
argues the trial court erred by denying the motion because he had met the requirements
entitling him to relief. Specifically, he claims that it is reasonably probable that he would
not have pleaded guilty, but would have defended against the charges, if he had
meaningfully understood the adverse immigration consequences of his plea. We find
substantial evidence supports a finding that defendant would have taken the plea despite
the immigration consequences, and therefore affirm the trial court’s order.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
Defendant is a 50-year-old citizen of El Salvador. He entered the United States in
approximately 1989 and resided in the United States for about 30 years as a legal
permanent resident.
On November 4, 1992, following a valid vehicle stop, defendant, who was
22 years old at the time, was found in possession of five small baggies with cocaine, four
small baggies with heroin, a beeper, and money. Defendant admitted selling drugs. At
the time he committed his offenses, he had been in the United States about three and a
half years and had a common law partner and a two-month-old child. Both his parents
and two sisters resided in El Salvador at the time.
1 All future statutory references are to the Penal Code.
2
B. PROCEDURAL HISTORY
On November 6, 1992, a felony complaint was filed charging defendant with two
counts of possession for sale of a controlled substance, involving, respectively, cocaine
and heroin (Health & Saf. Code, § 11351; counts 1 & 2). Defendant was arraigned on
November 9, 1992, and was advised that “ ‘if he is not a citizen [of the United States], the
conviction of the offense, with which he is charged, may lead to his deportation,
exclusion from admission to this country or denial of naturalization.’ ”
On November 20, 1992, defendant entered into a negotiated plea, in which he
agreed to plead guilty to count 1, and in return count 2 would be dismissed and he would
be placed on probation. Prior to pleading guilty, defendant initialed and signed a plea
agreement form. In pertinent part, defendant initialed paragraph 6C, which stated “ ‘If I
am not a citizen of the United States I could be deported or excluded from admission to
the United States or denied naturalization.’ ” Defendant was represented by counsel and
was provided the services of a Spanish interpreter. Both defense counsel and defendant’s
interpreter signed the plea agreement form. After executing the plea form, defendant
pleaded guilty to count 1. In return, count 2 was dismissed, and defendant was placed on
probation for a period of three years on various terms and conditions of probation,
including serving 90 days in county jail.
Due to his felony conviction for possession of cocaine for sale, on December 18,
2013, defendant was placed in removal proceedings by the United States Department of
Homeland Security.
3
On May 28, 2019, defendant filed a motion to vacate his guilty plea and
conviction pursuant to section 1473.7, or, in the alternative, section 1016.5. Defendant
maintained that when he entered his plea, he did not meaningfully understand that his
plea would render his legal permanent resident status void and bar him from any
immigration relief in the future. He further claimed that his attorney did not properly
advise him that his plea would have certain negative consequences to any future
immigration applications he might file.
In support of his motion, defendant attached his own supporting declaration, in
which he maintained that he was a citizen of El Salvador, that he was married to a United
States citizen,2 and that he had lived in the United States for nearly 30 years. He also
stated that prior to pleading guilty, he had briefly discussed the matter with his attorney;
however, his attorney never advised him that the guilty plea would permanently and
negatively affect his immigration status, including his permanent legal resident status,
and never advised him to seek out an immigration attorney. He asserted that he did not
meaningfully understand the consequences of his plea, and that if he had, he never would
have pleaded guilty. He claimed that instead he would have accepted a plea with a longer
custody term in order to avoid the immigration consequences or proceeded to trial.
The People opposed the motion, arguing defendant’s declaration failed to state a
claim for relief, and that to the extent section 1473.7 entitles defendant to relief, it is
unconstitutional. The People also asserted that the record showed defendant was advised
2At the hearing on his motion to vacate his guilty plea, defendant admitted that
he was neither married then nor at the time he committed his crimes.
4
of the adverse immigration consequences on November 9 and 20, 1992, by the court and
his trial counsel.
A hearing on defendant’s motion to vacate his guilty plea was held on July 19,
2019. Defendant testified at the hearing that he has been a legal permanent resident for
approximately 30 years, had three children who were citizens of the United States, and
that he was scheduled for an immigration removal hearing in January 2020. He claimed
that the first and only time he met with his attorney prior to his 1992 guilty plea was at
the plea hearing itself and that his attorney spent 10 or 15 minutes speaking with him. In
that time, defendant stated that his attorney did not discuss the immigration consequences
of the plea and that his attorney did not discuss with him the possibility of serving a
longer term to avoid adverse immigration consequences. He also claimed he did not
understand what exclusion from the United States meant and the difference between
citizenship and naturalization. He further asserted he did not recall being advised of the
negative immigration consequences during the taking of the plea hearing. Defendant
maintained that if he had known of the immigration consequences of the plea, he never
would have taken the deal.
On cross-examination, defendant acknowledged his memory was not the same as
it would have been in November 1992 and that he could not remember having been
arraigned at a separate proceeding, or being told a conviction might lead to deportation,
exclusion, and denial of naturalization. He did not recall being advised of his
constitutional rights prior to pleading guilty. Defendant also could not recall the name,
5
sex, or race of his attorney. He stated that he did not inform his attorney he wanted more
custody time to avoid any negative immigration consequences or that immigration was
more important than jail or prison. He claimed that if he had been told that his plea could
lead to deportation, exclusion, or denial of naturalization, he would have asked for
clarification. He would have asked whether there was some other plea deal that would
not have led to adverse immigration consequences and would have also asked his
attorney for advice. Defendant did not recall initialing or signing the plea agreement
form or being advised of any component of his plea.
Following argument, the trial court denied defendant’s motion to vacate under
sections 1473.7 and 1016.5. The court found that defendant failed to establish a credible,
independently verifiable prima facie showing of a reasonable probability that he would
not have pleaded guilty but for the alleged failure to advise of the adverse immigration
consequences of his plea. The court explained that defendant’s failure to show prejudice
was “fatal” to his claim under the federal and state Constitutions and also statutorily
under section 1473.7. The court noted that section 6C of the plea agreement form, which
defendant initialed with the assistance of an interpreter, stated defendant had been
advised of the potential immigration consequences of his plea. Based on the review of
the record, the court also concluded defendant did not show his attorney’s performance
fell below objective professional norms.
The court found defendant was “honest,” “forthcoming,” “straightforward,” and a
“very decent human being,” but also determined his testimony was lacking in credibility
6
in several respects. First, the court concluded there was no evidence that defendant’s
counsel ever misadvised him, only that he did not thoroughly advise defendant of all
immigration consequences, which advisal was not required in 1992. Second, the court
opined that documentary evidence refuted defendant’s contention that he was not advised
of the immigration consequences of his plea. Lastly, the court noted that defendant’s
memory of the plea was “sparse and minimal at best” and defendant had little recollection
of what he was told at the time of his arraignment and plea.
The court further found that defendant’s statement that he would have rejected the
plea if he had been thoroughly advised was “somewhat self-serving.” Specifically, as to
the question of prejudice, the court concluded that given defendant’s exposure of four to
five years in state prison, it appeared unlikely defendant would have risked that potential
sentence and given up probation and a term of only 90 days in custody. In addition, the
court observed there was insufficient evidence the charges would have permitted a
disposition that would not have affected defendant’s immigration status and that
defendant failed to corroborate his claims with objective, independent evidence.
DISCUSSION
Defendant argues the trial court erred in denying his section 1473.7 motion to
vacate his guilty plea and conviction. He maintains it is reasonably probable that he
would not have pleaded guilty, and would instead have defended against the charges, if
he had meaningfully understood the immigration consequences of his plea.
7
A. STANDARD OF REVIEW
Our Supreme Court recently clarified the standard of review for motions brought
pursuant to section 1473.7, subdivision (a)(1). In People v. Vivar (2021) 11 Cal.5th 510
(Vivar), the Supreme Court endorsed the independent standard of review to all prejudice
determinations under section 1473.7, subdivision (a)(1). (Vivar, at pp. 523-525.) “A
standard of independent review—the same standard governing our review of these claims
on habeas corpus—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.
[Citation.]” (Id. at p. 525.) “ ‘[U]nder independent review, an appellate court exercises
its independent judgment to determine whether the facts satisfy the rule of law.’
[Citation.] When courts engage in independent review, they should be mindful that
‘ “[i]ndependent review is not the equivalent of de novo review . . . .” ’ [Citation.] An
appellate court may not simply second-guess factual findings that are based on the trial
court’s own observations. [Citations.]” (Id. at p. 527, italics omitted.) In other words,
we should give particular deference to factual findings based on the trial court’s personal
observations of witnesses. (Id. at pp. 527-528.) Where “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; as a practical matter,
‘[t]he trial court and this court are in the same position in interpreting written
declarations’ when reviewing a cold record in a section 1473.7 proceeding. [Citation.]
8
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 p. 528.)
B. SECTION 1473.7
Former section 1473.7, which became effective on January 1, 2017, allowed “[a]
person no longer imprisoned or restrained” to file a motion to vacate a conviction or
sentence if “[t]he 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.” (Stats. 2016, ch. 739, § 1.) “Courts routinely interpreted the
new statute to mean that in order to vacate a conviction, a person had to prove an
ineffective assistance of counsel (IAC) claim under well-established standards.
(Strickland v. Washington (1984) 466 U.S. 668 (Strickland).” (People v. Mejia (2019) 36
Cal.App.5th 859, 861 (Mejia); People v. Camacho (2019) 32 Cal.App.5th 998, 1005
(Camacho).)
The Legislature, however, amended the statute, effective January 1, 2019, “to
provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure
uniformity throughout the state and efficiency in the statute’s implementation.” (Stats.
2018, ch. 825, § 1, subd. (b); Camacho, supra, 32 Cal.App.5th at p. 1007; Mejia, supra,
36 Cal.App.5th at p. 869.) Of significance here, a sentence was added to
subdivision (a)(1) stating, “[a] finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (Stats. 2018, ch. 525, § 2; Mejia, at pp. 862,
9
869; Camacho, at p. 1006; see People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133
(DeJesus).) A new subdivision (e)(4) directed, “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.”
(Stats. 2018, ch. 825, § 2, subd. (e)(4).)
Under the amended section 1473.7, a defendant is no longer required to prove an
ineffective assistance of counsel claim in order to obtain relief. (Mejia, supra, 36
Cal.App.5th at p. 871; Camacho, supra, 32 Cal.App.5th at p. 1008.) Thus, a defendant
no longer must prove that counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. (Camacho, at p. 1008.) This means
too that courts are not limited to the standard for prejudice used in ineffective assistance
of counsel claims—“a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different” (Strickland v. Washington (1984)
466 U.S. 668, 694)—when ruling on motions brought under section 1473.7. (Camacho,
at p. 1009.)
“Rather, a superior court is required to make a finding of legal invalidity if the
defendant simply proves by a preponderance of the evidence a ‘prejudicial error
damaging the moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of a plea of
10
guilty or nolo contendere.’ (§ 1473.7, subd. (a)(1).)” (Mejia, supra, 36 Cal.App.5th at
p. 871, italics omitted.) “[T]he 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.’ [Citation.]” (Mejia, at
p. 871, italics omitted, quoting Camacho, supra, 32 Cal.App.5th at p. 1009.)
As our Supreme Court recently explained, prejudicial error “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
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.)
“The probability of obtaining a more favorable result at trial is one factor to
consider in evaluating prejudice, but it is not necessarily the determinative factor.”
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78 (Ogunmowo); People v. Martinez
(2013) 57 Cal.4th 555, 559 (Martinez).) As the United States Supreme Court explained
in Lee v. United States (2017) __ U.S. __ [137 S.Ct. 1958, 1967] (Lee), “it could be
reasonably probable that a defendant ‘would have rejected any plea leading to
deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at
11
trial,’ where ‘avoiding deportation was the determinative factor for [the defendant].’ ”
(Ogunmowo, at p. 78, italics omitted; accord, Mejia, supra, 36 Cal.App.5th at p. 871;
Camacho, supra, 32 Cal.App.5th at pp. 1010-1011.) “ ‘[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.] When those consequences are, from the
defendant’s perspective, similarly dire, even the smallest chance of success at trial may
look attractive.’ (Lee v. United States, supra, [__] U.S. __ [137 S.Ct. at p. 1966].)”
(Mejia, at p. 872; Camacho, at pp. 1010-1011.)
As Camacho discussed, our Supreme Court has found that “ ‘ “[c]riminal
convictions may have ‘dire consequences’ under federal immigration law [citation] and
that such consequences are ‘material matters’ [citation] for noncitizen defendants faced
with pleading decisions.” [Citation.] “[A] deported alien who cannot return ‘loses his
job, his friends, his home, and maybe even his children, who must choose between their
[parent] and their native country . . . .’ ” [Citation.] Indeed, a defendant “may view
immigration consequences as the only ones that could affect his calculations regarding
the advisability of pleading guilty to criminal charges” [citation], such as when the
defendant has family residing legally in the United States. “Thus, even before the
Legislature expressly recognized [in section 1016.5, subdivision (d)] the unfairness
inherent in holding noncitizens to pleas they entered without knowing the consequent
immigration risks [citation], we held that justice may require permitting one who pleads
12
guilty ‘without knowledge of or reason to suspect [immigration] consequences’ to
withdraw the plea.” [Citation.]’ ” (Camacho, supra, 32 Cal.App.5th at p. 1010, quoting
Martinez, supra, 57 Cal.4th at p. 563.)
In determining whether the defendant would insist on an alternative resolution, the
focus is not placed on “whether the prosecution would actually ‘have offered a different
bargain’—rather” the focus is on whether “the defendant” could “expect or hope a
different bargain” was possible. (Vivar, supra, 11 Cal.5th at p. 529, italics omitted.)
“[W]hen a defendant seeks to withdraw a plea based on inadequate advisement of
immigration consequences,” he or she must corroborate “such assertions with ‘ “objective
evidence.” ’ ” (Id. at p. 530.)
C. ANALYSIS
Assuming, without deciding, defendant had established his counsel erred, he also
needed to show prejudice. We independently find defendant’s claim fails because he has
not shown prejudice. At the outset, we note defendant’s motion to vacate was based
primarily on his declaration and then oral testimony that he was not advised about the
immigration consequences of the plea and that he did not understand those consequences.
To show prejudice, a moving party must at minimum “provide a declaration or
testimony stating that he or she would not have entered into the plea bargain if properly
advised.” (Martinez, supra, 57 Cal.4th at p. 565.) Once they provide such a declaration,
“[i]t 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
13
corroborating circumstances.” (Ibid.) In assessing the credibility of a moving party’s
claim they would not have entered a plea but for some error, as previously noted, a court
may look at a number of factors, including the moving party’s history with the United
States, the length of their residency, their family ties here versus in their country of
origin, the presence or absence of other plea offers, the strength of the evidence
supporting the underlying conviction, and whether the defendant had reason to believe
that the charges would allow an immigration-neutral bargain that a court would accept.
(Vivar, supra, 11 Cal.5th at pp. 529-530; Martinez, supra, 57 Cal.4th at p. 568; Mejia,
supra, 36 Cal.App.5th at p. 872.) A defendant’s probability of success at trial also forms
part of this inquiry, as a defendant would be less likely to insist on going to trial if the
consequences of trial lead to a worse sentence than compared to the plea. (See Lee,
supra, __ U.S. __ [137 S.Ct. at p. 1966].)
Under these standards, the trial court was within its authority to find defendant’s
declaration and his testimony was not credible and self-serving for lack of corroborating
or objective evidence. (See Vivar, supra, 11 Cal.5th at pp. 529-530.) Defendant can
point to no contemporaneous corroborating evidence to support his claim that he would
not have pleaded guilty if properly advised of the adverse immigration consequences.
Defendant never attached a declaration from his attorney who had negotiated the plea on
defendant’s behalf or call the attorney to testify. He also did not call the prosecutor who
accepted the plea or the interpreter to testify at the hearing. There was no evidence
regarding the extent of plea negotiations, or whether defendant “expect[ed] or hope[d] a
14
different bargain” was possible. (Vivar, at p. 529.) There was also no evidence in the
record indicating the prosecutor would have considered, or the trial court would have
accepted, a different plea. (See People v. Perez (2018) 19 Cal.App.5th 818, 830;
DeJesus, supra, 37 Cal.App.5th at p. 1136.) Defendant’s assertion that he would not
have pled but for his counsel’s failure to advise him of adverse immigration
consequences is not enough. (Lee, supra, __ U.S. __ [137 S.Ct. at p. 1967].) “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.” (Ibid., italics omitted.) There
must also be “contemporaneous evidence to substantiate a defendant’s expressed
preferences.” (Ibid.)
Furthermore, defendant does not even try to call into question the evidence
supporting his underlying conviction. Rather, he admitted at the motion to vacate hearing
that he possessed the drugs and never denied he did so for purposes of sale. The record
also indicates defendant admitted to committing the charged offenses to the probation
officer. In addition, the trial court could have looked at the other factors, and, as it
determined, defendant had very little incentive to fight the conviction and risk a four- to
five-year prison term rather than plead guilty in exchange for probation. Defendant’s ties
to the United States were minimal. He had immigrated to the United States only three
and a half years before his arrest, when he was around 18 years old, and both his parents
and sisters resided in El Salvador. And though his declaration says he was married, at the
time of the hearing defendant acknowledged he was not married.
15
Undeniably, removal from the United States after creating a life and family here
for three decades is distressing. However, the test for prejudice considers what defendant
would have done had he been properly advised of immigration consequences at the time
of the plea, and not the consequences defendant faces now in 2021. (See Martinez,
supra, 57 Cal.4th at p. 564.)
This case is thus distinguishable from Camacho and Mejia, which involved
defendants who had lived in the United States for at least eight years at the time of their
crimes, had significant immediate personal family ties, few ties to their country of origin,
and in Mejia “some lingering questions about the strength of the underlying evidence” of
the conviction. (Mejia, supra, 36 Cal.App.5th at pp. 872-873; see Camacho, supra, 32
Cal.App.5th at p. 1011.)
This case is also distinguishable from Vivar, wherein our Supreme Court
concluded “Vivar was prejudiced.” (Vivar, supra, 11 Cal.5th at p. 530.) However,
unlike here, “Vivar was brought to this country at age six as a lawful resident, and he
attended schools, formed a family, and remained here for 40 years. At the time of his
plea, he had two children, two grandchildren, and a wife, all of whom are citizens and all
of whom resided in California. By the time he was deported, his wife was undergoing
radiation treatment for a thyroid condition. By contrast, Vivar had virtually no ties to
Mexico, spoke Spanish ‘like an American,’ and found it ‘difficult to function in Mexican
society because people treat [him] like an outsider.’ Trial counsel’s recollection and
contemporaneous notes reflect that Vivar was indeed concerned about the ‘consequences’
16
of his plea. All of these constitute contemporaneous objective facts that corroborate
Vivar’s concern about the immigration consequences of his plea options. [Citation.]”
(Ibid., citing Mejia, supra, 36 Cal.App.5th at p. 872.)
The Supreme Court further explained: “Also revealing is the objective evidence
of Vivar’s state of mind reflected in uncounseled letters he wrote to the court at or near
the time of his plea. In his first letter, written just a month after his March 2002 plea,
Vivar objected to his immigration hold and emphasized that ‘I am a legal resident and
have been for the past 40 years’; noted that not only his wife and mother are citizens, but
his children and grandchildren were all ‘born here in Riverside County’; and explained
that his oldest child and only son was serving in the United States Air Force and awaiting
deployment to the Middle East. He reiterated these concerns in another letter from
federal immigration custody a month later, pleading that he be allowed to become ‘an
asset to my community and not a liability.’ Three months after that, Vivar said that
counsel never advised him that his plea would result in his deportation and declared that
‘[i]f I would have been made aware of these facts I would have never plead[ed] Guilty to
this Charge.’ ” (Vivar, supra, 11 Cal.5th at pp. 530-531, italics added.) The objective,
corroborating factors noted in Vivar are wholly absent in this case.
Our Supreme Court further emphasized in Vivar that the record demonstrated
Vivar could have entered a plea avoiding mandatory deportation. (Vivar, supra, 11
Cal.5th at p. 531.) “Trial counsel’s contemporaneous notes indicate the prosecution
offered a deal under which Vivar would plead guilty to a single count of burglary (Pen.
17
Code, § 459) with a recommendation that he serve the low term of two years in state
prison. With credits, Vivar could have cut that term in half. (See Pen. Code, § 2933,
subd. (a).) At the time of his plea, burglary in California was a deportable felony only in
particular situations [citation], and the uncontradicted declaration from Vivar’s
immigration expert stated that Vivar could’ve entered such a plea without subjecting
himself to mandatory deportation. Under these circumstances, we find at least ‘ “a
reasonable probability” ’ that he could have tried ‘to obtain a better bargain that [did] not
include immigration consequences.’ [Citation.]” (Vivar, at p. 531, quoting Martinez,
supra, 57 Cal.4th at p. 567.)
Our review of the Lee, Vivar, and Martinez factors do not convince us defendant
would have opted for trial had he been properly advised of the immigration
consequences. Given defendant’s minimal ties to the United States, his failure to
challenge the strength of the evidence against him, his admission to committing the
offenses, and the lack of any other evidence corroborating defendant’s declaration and
testimony, there was sufficient evidence for the trial court to conclude defendant’s
declaration and testimony were not credible and self-serving. Accordingly, even if
defendant had demonstrated an error affecting his ability to “meaningfully understand,
defend against, or knowingly accept the actual or potential adverse immigration
consequences of a plea of guilty” under section 1473.7, subdivision (a)(1), we find he did
not show he would have rejected the plea if he had been advised properly.
18
Exercising our independent review while deferring to the trial court’s credibility
determinations and factual findings, we conclude defendant did not meet his burden for
relief under section 1473.7.
DISPOSITION
The trial court’s order denying defendant’s section 1473.7 motion to vacate is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
SLOUGH
J.
RAPHAEL
J.
19
People v. Sosa CA4/2
Combined Opinion