The opinion
Filed 9/23/25 P. v. Pizarro CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B340797
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA261296)
v.
AMADOR ROBLES PIZARRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Henry J. Hall, Judge. Reversed and
remanded with directions.
Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven D. Matthews, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Amador Robles Pizarro appeals from the trial court’s order
denying his motion to vacate his conviction and withdraw his
plea under Penal Code section 1473.7.1 The trial court denied the
motion without holding an evidentiary hearing. The People
concede that reversal is warranted. We agree and remand for an
evidentiary hearing.
FACTUAL AND PROCEDURAL BACKGROUND2
Pizarro was born in Honduras. He came to the United
States in 1995. In March 2004, Pizarro was charged with
committing a lewd act on a child of 14 or 15 years old, while
Pizarro was at least 10 years older, in violation of section 288,
subdivision (c)(1). After initially entering a plea of not guilty in
March 2004, Pizarro withdrew his plea in August 2004, entered a
plea of nolo contendere, and was found guilty as charged.
Before entering his plea, the trial court advised him: “There
are consequences to pleading tha[t] you need to understand. [¶]
If you are not a citizen of the United States, a plea in this case
will result in deportation, denial of naturalization, denial of re-
entry into this country, as well as exclusion from admission.”
The court then explained the other consequences of the plea and
the terms of probation. At the end of this advisement, Pizarro
indicated he understood the consequences of his plea. The trial
1 Undesignated statutory references are to the Penal Code.
Pizarro is also known as Javier Alexis Flores Mayorquin.
2 The record does not contain the facts of the underlying
crime.
2
court suspended Pizarro’s sentence and placed him on five years
of probation. He was ordered to serve six days in jail, with six
days of custody credits.
In April 2024, Pizarro filed a motion to vacate his
conviction and withdraw his plea under section 1473.7. He
supported the motion with his own signed declaration, asserting
that his 2004 conviction was the first and last time he had an
“encounter with the law.” Pizarro declared that at the time of his
plea, he “had no knowledge of how the criminal system worked,”
and “far less knowledge about the immigration system . . . .”
When he accepted the plea, he believed he only needed to “focus
on completing [his] probation.”
Pizarro further declared that at the time of his plea, he had
been in the United States for approximately nine years. His
sister, “the most important” person in his life, also resided in the
United States. In 1999, he graduated from barbershop school
and received his barber’s license from the state. At the time of
his plea, he was living with his then partner. He declared that
had he known of the immigration consequences of his plea, he
would have maintained his original not guilty plea and
challenged the charges. Pizarro has not incurred any other
criminal convictions.
In 2023, Pizarro spoke with an immigration attorney about
his eligibility for a U Visa, which is available to victims of crimes
in the United States. His attorney explained that his conviction
disqualified him for a U Visa. She informed him of
section 1473.7. Pizarro also supported his motion with a
declaration from the immigration attorney. The attorney
explained that Pizarro’s conviction could render him inadmissible
and deportable. In addition, it prevented Pizarro from pursuing
3
legalization and “other immigration relief, including for
discretionary relief before the Department of Homeland
Security.” If he sought such relief, it would be denied, and he
“could be placed in deportation proceedings.”
On May 21, 2024, Pizarro and his attorney arrived at the
courtroom for a hearing on the motion and learned the assigned
prosecutor was not present and needed time to familiarize herself
with the motion. Pizarro’s attorney agreed to a brief continuance.
However, when the court called the matter, it rejected the
request for a continuance, noting it was untimely. The court
continued, “I’d be a lot more sympathetic to this if I hadn’t spent
six or seven hours’ work on this case already and at this point I
have some questions and we’ll talk about whether we’re going to
continue it.” After an exchange with Pizarro’s counsel about the
merits, the court stated it would deny the motion. The court did
not ask the prosecution for its position. The prosecutor did not
speak at all during the hearing. When the court indicated it
would deny the motion, Pizarro’s counsel requested an
evidentiary hearing. The court denied the request.
On May 21, the court filed a written order denying the
motion. The court reasoned Pizarro was required to establish
that he was not advised or was misadvised of the immigration
consequences of his plea. The court concluded the advisement in
the record was proper and Pizarro was not misadvised. The court
emphasized that Pizarro “was clearly and unequivocally told he
would be deported if he entered into the plea agreement in this
case.” The court also noted Pizarro did not claim he was
misadvised by his trial counsel, and he did not say or do anything
at the time of his plea to suggest he did not understand the
potential immigration consequences of the plea. The court
4
further found that Pizarro was not facing deportation, denial of
naturalization, or denial of reentry, and was only “investigating
the possibility of obtaining a ‘U’ Visa . . . .” The court thus
concluded “there is absolutely no credible evidence of error in the
plea and no credible evidence of prejudice from any imaginary
error in this case. [Pizarro] is not part of that group of
noncitizens who entered illegal pleas and is not entitled to relief.”
Pizarro filed a motion to reconsider. He argued he was
entitled to an evidentiary hearing under section 1473.7, and the
court improperly failed to determine the People’s position before
denying the motion.
The court denied the motion for reconsideration, explaining
that Pizarro was not entitled to an evidentiary hearing because
“[t]he only issue in the defendant’s Penal Code section 1473.7
motion was whether the advisement of immigration consequences
which he received at the time of his guilty plea to child
molestation was sufficient. Under any legal test, it was.” The
court reasoned that “an evidentiary hearing would and could add
nothing to this.” The court also rejected Pizarro’s argument
based on the People’s right to be heard, stating that the People
were unprepared for the motion and the request for a
continuance was informal and untimely.
Pizarro timely appealed.
DISCUSSION
Pizarro argues, and the People concede, that Pizarro was
entitled to an evidentiary hearing on the motion to vacate. We
agree with the parties and reverse and remand for an evidentiary
hearing.
5
I. Pizarro Was Entitled To An Evidentiary Hearing3
Under section 1473.7, “[a] person who is no longer in
criminal custody may file a motion to vacate a conviction or
sentence” that 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 conviction or sentence.”
(Id., subd. (a)(1).)
The section further provides that “[a]ll motions shall be
entitled to a hearing.” (§ 1473.7, subd. (d).) “If the prosecution
has no objection to the motion, the court may grant the motion to
vacate the conviction or sentence without a hearing.” (Ibid.)
Otherwise, “[e]very qualifying defendant filing a section 1473.7
motion is entitled to a hearing on the merits of the motion.”
(People v. Singh (2022) 81 Cal.App.5th 147, 154; see also Fryhaat,
supra, 35 Cal.App.5th at p. 977 [“the plain language of
section 1473.7, subdivision (d), establishes that a moving party is
entitled to a hearing”].) As our high court recently explained, “In
addition to submitting declarations, both parties are entitled to
request an evidentiary hearing.” (Espinoza, supra, 14 Cal.5th at
p. 325.)
Pursuant to the plain language of section 1473.7,
subdivision (d), Pizarro was entitled to an evidentiary hearing.
3 Our review of what procedures are required by the text of
the statute is de novo. (See People v. Fryhaat (2019) 35
Cal.App.5th 969, 976–979 (Fryhaat) [reviewing § 1473.7 de novo
to determine whether it requires a right to a hearing, to be
present, and a right to counsel].) “We apply independent review”
to determine whether a defendant established eligibility for
relief. (People v. Espinoza (2023) 14 Cal.5th 311, 319, 320
(Espinoza).)
6
Further, although the statute does not expressly condition a
hearing on the defendant making a prima facie showing of
entitlement to relief, to the extent it was a requirement, we agree
with the parties that Pizarro met that burden. He alleged facts
that, if true, would entitle him to relief. (See In re Lawler (1979)
23 Cal.3d 190, 194; Fryhaat, supra, 35 Cal.App.5th at p. 982.)
A defendant seeking to vacate his or her conviction under
section 1473.7 must establish three things. “The defendant must
first show that he did not meaningfully understand the
immigration consequences of his plea.” (Espinoza, supra, 14
Cal.5th at p. 319.) “Next, the defendant must show that his
misunderstanding constituted prejudicial error. ‘[P]rejudical
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.’ [Citation.]” (Ibid.) Finally, “the moving party
shall also establish that the conviction or sentence being
challenged is currently causing or has the potential to cause
removal or the denial of an application for an immigration
benefit, lawful status, or naturalization.” (§ 1473.7, subd. (e)(1).)
Pizarro’s declaration asserted that he did not understand
the immigration consequences of his plea. The trial court advised
him that his plea “will result in deportation, . . . denial of re-entry
into this country, as well as exclusion from admission,” and
Pizarro stated that he understood the consequences of his plea.
However, an advisement that a plea will result in deportation
does not necessarily prevent a defendant from demonstrating
that he did not understand the plea’s consequences for purposes
of section 1473.7 relief. (People v. Curiel (2023) 92 Cal.App.5th
1160, 1175 (Curiel); People v. Manzanilla (2022) 80 Cal.App.5th
7
891, 906; People v. Lopez (2021) 66 Cal.App.5th 561, 577; People
v. Rodriguez (2021) 60 Cal.App.5th 995, 1003–1004; People v.
Camacho (2019) 32 Cal.App.5th 998, 1011, fn. 8 (Camacho).)4
The “will result” language in the immigration consequences
advisement Pizarro received did not determine whether he was
entitled to an evidentiary hearing under section 1473.7.
(Fryhaat, supra, 35 Cal.App.5th at p. 982 [remanding for hearing
under § 1473.7 although defendant was advised plea “will” result
in deportation, because court could not assume counsel advised
defendant of immigration consequences].)
Pizarro declared that he did not understand the
consequences of his plea, he was unfamiliar with the criminal
and immigration systems at the time of his plea, and he believed
that he only needed to focus on completing his probation. This
was sufficient to establish a prima facie showing of the first
requirement for relief. At an evidentiary hearing, he would have
the opportunity to submit contemporaneous evidence
corroborating his assertions. (See Espinoza, supra, 14 Cal.5th at
p. 321 [defendant must corroborate assertions with objective
evidence]; Curiel, supra, 92 Cal.App.5th at p. 1177 [original
defense counsel’s testimony corroborated defendant’s
declaration].)
Pizarro also declared he would not have accepted the plea
agreement if he understood its immigration consequences
because of his family and professional ties to the United States.
4 The issue of when the “totality of the circumstances”
establishes a defendant meaningfully understood the
immigration consequences of a plea is currently pending before
the California Supreme Court in In re Hernandez, S282186,
Supreme Court Minutes, December 20, 2023.
8
At the time of his plea in 2004, Pizarro had lived in the United
States for approximately nine years. His sister and partner were
in the United States. He had gone to school and obtained a
license to work as a barber in California. Pizarro stated that if he
had understood the immigration consequences of his plea, he
would have maintained his original not guilty plea and
challenged the charges. These statements established a prima
facie showing of prejudice. At an evidentiary hearing he would
be required to establish the truth of his claims by a
preponderance of the evidence, including by providing objective
evidence to corroborate his factual assertions. (Espinoza, supra,
14 Cal.5th at p. 321; People v. Vivar (2021) 11 Cal.5th 510, 523.)
Finally, Pizarro demonstrated “that the conviction or
sentence being challenged is currently causing or has the
potential to cause removal or the denial of an application for an
immigration benefit, lawful status, or naturalization.” (§ 1473.7,
subd. (e)(1), italics added; Camacho, supra, 32 Cal.App.5th at
pp. 1003–1004, & fn. 3 [moving party need not wait until
commencement of deportation proceedings or other immigration
consequence before filing motion].)
Pizarro’s immigration attorney declared that his conviction
would result in the denial of his application for an immigration
benefit—specifically, a U Visa—and rendered him removable and
inadmissible. As one court described in holding that a
section 1473.7 motion may be brought “in the absence of removal
proceedings,” “[t]he phrase ‘actual or potential adverse
immigration consequences’ [in section 1473.7] is broad and
encompasses circumstances other than removal, such as, for
example, the one Morales has asserted: his claimed inability to
obtain temporary legal status in the United States via a U visa,
9
for which he purportedly would qualify if not for his conviction.”
(People v. Morales (2018) 25 Cal.App.5th 502, 509, 510.)5 It is
sufficient that Pizarro’s “offense[ ] to which [ ]he pleaded no
contest left h[im] subject to potential adverse immigration
consequences in the future.” (Curiel, supra, 92 Cal.App.5th at
p. 1174.)
The language of the immigration consequences advisement
is relevant to the totality of circumstances that will determine
whether the court ultimately grants Pizarro’s motion to vacate
(Espinoza, supra, 14 Cal.5th at p. 320), but it did not govern
whether the trial court was required to conduct further
proceedings. Pizarro is entitled to an evidentiary hearing under
section 1473.7, subdivision (d). We express no opinion on the
ultimate outcome of the motion to vacate the conviction.
Finally, Pizarro requests that, on remand, the matter be
assigned to a different trial judge pursuant to Code of Civil
Procedure, section 170.1, subdivision (c). The People did not
address this issue in their brief. Under Code of Civil Procedure
section 170.1, subdivision (c), “[a]t the request of a party or on its
own motion an appellate court shall consider whether in the
interests of justice it should direct that further proceedings be
heard before a trial judge other than the judge whose judgment
or order was reviewed by the appellate court.” However, this
5 In addition, Pizarro’s plea to section 288, subdivision (c)(1),
may to subject him to removal as it has in some instances been
deemed an aggravated felony. (Rodriguez-Castellon v. Holder
(9th Cir. 2013) 733 F.3d 847, 863; but see United States v. Castro
(9th Cir. 2010) 607 F.3d 566, 569.) “A noncitizen who is convicted
of an aggravated felony is subject to mandatory deportation and
permanent exclusion from the United States.” (Curiel, supra, 92
Cal.App.5th at p. 1174.)
10
power should be used “ ‘sparingly, and only when the interests of
justice require it.’ ” (In re Tuilaepa (2025) 108 Cal.App.5th 1262,
1283, quoting People v. LaBlanc (2015) 238 Cal.App.4th 1059,
1079.) “Mere judicial error does not establish bias and normally
is not a proper ground for disqualification.” (LaBlanc, at
p. 1079.) We do not find that the interests of justice require an
order for reassignment on remand in this case.
DISPOSITION
The trial court’s denial of Pizarro’s Penal Code
section 1473.7 motion is reversed and the matter is remanded for
an evidentiary hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
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