People v. Perez

Filed 8/17/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F080837

Plaintiff and Respondent,

(Super. Ct. No. VCF043238-99)

v.

JOSE ADRIAN PEREZ, OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Gary L.

Paden, Judge.

Law Office of Allen Broslovsky and Allen Broslovsky for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.

Farris, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

In December 2019, defendant Jose Adrian Perez filed a motion pursuant to Penal

Code section 1473.71 to vacate a 2000 conviction entered after he pled guilty to felony

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

certified for publication with the exception of the Background and parts II. and III. of the

Discussion.

1 Unlabeled statutory references are to the Penal Code.

theft. The sole ground raised in the opposition to Perez’s motion was its untimeliness.

At the hearing on the motion, the superior court stated: “While I think there are a bunch

of humanitarian reasons why it should be granted, I have to say the motion is denied.”

On appeal, the Attorney General contends the court properly denied the motion because

(1) it was untimely and (2) Perez did not establish he suffered the “prejudicial error”

required by section 1473.7, subdivision (a)(1).

The published part of this opinion addresses the meaning of the timeliness

provisions set forth in subdivision (b) of section 1473.7, which is a pure question of law

and not dependent upon the facts of this case. That subdivision contains a general rule

requiring the court to deem the motion timely in certain circumstances. (§ 1473.7, subd.

(b)(1).) It also contains a discretionary exception that permits the court to deem the

motion untimely if the moving party did not act with reasonable diligence in bringing the

motion after specific triggering events. (§ 1473.7, subd. (b)(2).) Thus, the absence of

reasonable diligence does not automatically result in the motion being deemed untimely.

A superior court has the discretionary authority, after considering the totality of the

circumstances, to deem a motion timely even if the moving party did not act with

reasonable diligence.

The unpublished portion of this opinion includes our analysis of whether Perez

acted with reasonable diligence in filing his motion and our determination that the motion

was timely filed. It also includes our analysis of whether Perez demonstrated the

existence of an error that was both prejudicial and damaging to his ability to

meaningfully understand and accept the immigration consequences of his no contest plea.

(§ 1473.7, subd. (a)(1).) Based on our independent review of the cold record in

accordance with the principles set forth in People v. Vivar (2021) 11 Cal.5th 510 (Vivar),

we conclude Perez satisfied the requirements of section 1473.7, subdivision (a)(1) and is

entitled to relief.

We therefore reverse the order denying the section 1473.7 motion.

2.

BACKGROUND*

Perez was born in Mexico in January 1981. In 1984, when he was three years old,

his parents brought him to the United States. His declaration states he has “remained

continuously in the United States since.” He became a legal permanent resident of the

United States when he was about 14 years old. He attended Lindsay High School. He

has three children, all of whom are United States citizens. His parents are legal

permanent residents of the United States.

In October 1999, a felony complaint was filed that charged Perez with

participating in taking personal property means of force from a man in violation of

section 211. The offense was committed in an inhabited dwelling.

On March 7, 2000, pursuant to a negotiated plea bargain, Perez pled guilty to one

count of felony theft (§ 487, subd. (c)) in exchange for an indicated sentence of two

years. The minute order from that hearing included a paragraph that read:

“( ) Defendant advised and understands the maximum penalties,,

consequences of his plea, the possible defenses ( ) consequences of

violation of probation ( ) possible deportation if not a citizen of the United

States ( ) driver’s license will be suspended.”

Only the first set of parentheses in this paragraph contained a check mark. The

lack of a check mark before the immigration warning of “possible deportation if not a

citizen of the United States” indicates that the warning was not given to Perez. The

minute order included a space where the name of an interpreter could be entered. This

space was left blank, which implies Perez participated in the proceedings using English.

On April 12, 2000, Perez appeared for sentencing and was represented by James

Michael Kordell.2 The superior court sentenced Perez to the midterm of two years in

* See footnote, ante, page 1.

2 Perez’s opening brief asserts he initially was represented by the Tulare County

Public Defender’s Office and, because of a conflict, his representation was assumed by

Kordell, an attorney connected to the Tulare County Conflict Defender’s Program.

3.

state prison less credits, imposed a $400 restitution fine, and stated restitution to the

victim would remain open. The court also directed Perez to participate in a counseling or

education program containing a substance abuse component. With credits, Perez served

half of the two-year sentence. The minute order for the April 2000 proceedings, like the

previous minute order, contained no name in the space for the interpreter.

When he was released, he was taken into custody by Immigration and Customs

Enforcement (ICE) and put into removal proceedings. Perez’s declaration stated: “I was

eventually ordered removed and deported to Mexico where I was separated from my

family for over three years.”

In 2008, Kordell, the attorney who represented Perez at his sentencing, pleaded no

contest to felony charges of maintaining a place for selling or using methamphetamine.

As a result, Kordell was suspended from the practice of law. In 2010, he was disbarred.

In June 2015, he died.

On September 3, 2019, the United States Immigration Court in San Francisco held

an individual hearing for Perez in case No. A-070-716-459 and ordered that he be

returned to Mexico.3 Later that month, Perez was returned to Mexico.

On December 23, 2019, Perez filed a motion to vacate his conviction pursuant to

section 1473.7. The motion was supported by (1) Perez’s declaration dated August 29,

2018; (2) a printout from the State Bar of California’s website showing a chronology of

the license status, discipline, administrative action, and State Bar Court cases involving

Kordell; (3) and a copy of Kordell’s certificate of death, which was issued by the County

of Tulare. Perez’s declaration asserts Kordell did not mention anything about

immigration and did not tell him that his plea would cause him to be deportable from the

United States and to lose his status as a legal permanent resident. Perez also asserts the

3 Perez’s motion and the district attorney’s opposition list the date of the order as

September 13, 2019. We granted our own motion for judicial notice of the fact the

removal order was issued on September 3, 2019.

4.

superior court did not inform him that there would be immigration consequences

resulting from his plea. Perez states he would not have entered his plea if he had known

of the horrible immigration consequences that would result.

On December 31, 2019, the district attorney filed an opposition to Perez’s motion

to vacate. The opposition referred to Perez’s 2000 guilty plea, the two-year sentence to

state prison, and the September 2019 order of the United States Immigration Court

directing that Perez be returned to Mexico. The sole ground raised in the opposition was

the untimeliness of the motion. It did not, however, quote or paraphrase the statutory

provisions addressing timeliness that became effective on January 1, 2019. The

opposition’s conclusion stated: “[Perez] brings this motion 19 years after he entered his

plea. His unjustifiable delay causes prejudice to the People. Accordingly, the People

respectfully request that the Court deny [Perez’s] Motion to Vacate Conviction.”

On January 3, 2020, the superior court held a hearing on the motion. The judge

was not the judge who took Perez’s plea and sentenced him in 2000.4 At the start of the

hearing, counsel for Perez stated he had a copy of Perez’s parents’ resident cards and his

children’s birth certificates. Immediately after counsel’s statement, the court said:

“The Court has read all the pleadings in this matter and reviewed the file.

What strikes me is this is very similar to a case I had about five years ago,

where — and I used the term equity, that really demanded I grant the

motion because of his family and ties and everything else. And that’s

certainly what I have here. The family is here, and he’s been here forever.

I made that ruling, granting the motion, saying that equity demands he stays

here. [¶] The Fifth District Court of Appeal overturned it, saying equity is

not a consideration for ruling on these motions. [¶] While I think there are

a bunch of humanitarian reasons why it should be granted, I have to say the

motion is denied.”5

4 As a result, “the judge hearing the section 1473.7 motion had no firsthand

familiarity with the circumstances surrounding [Perez’s] plea.” (Vivar, supra, 11

Cal.5th at p. 527.)

5 To provide context for Judge Paden’s statement, we took judicial notice of our

nonpublished opinions in People v. Superior Court (Collado) (Nov. 7, 2011, F062852)

5.

That statement ended the proceedings and the court subsequently filed a minute

order reflecting its denial of the motion. In February 2020, Perez filed a notice of appeal

and a request for certificate of probable cause.

DISCUSSION

I. INTERPRETATION OF TIMELINESS PROVISIONS

Section 1473.7 permits a person to file a motion to vacate a conviction that is

“legally invalid due to 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 guilty or nolo contendere.” (§ 1473.7,

subd. (a)(1).) Such a motion “must be timely.” (People v. Perez (2018) 19 Cal.App.5th

818, 826.) Timeliness is governed by subdivision (b) of section 1473.7.

A. Initial Timeliness Requirement

The first version of subdivision (b) of section 1473.7 was enacted in 2016, was

effective from January 1, 2017, through December 31, 2018, and stated:

“A motion pursuant to paragraph (1) of subdivision (a) shall be filed with

reasonable diligence after the later of the following: [¶] (1) The date the

moving party receives a notice to appear in immigration court or other

notice from immigration authorities that asserts the conviction or sentence

as a basis for removal. [¶] (2) The date a removal order against the moving

(peremptory writ of mandate issued directing the superior court to vacate its June 8, 2011

order granting Teodoro Collado’s motion under Penal Code section 1016.5 and to enter a

new order denying the motion) and People v. Superior Court (Contreras) (Oct. 20, 2011,

F063031) (peremptory writ of mandate issued directing the superior court to vacate its

June 15, 2011 order granting Maria Contreras’s motion pursuant to Penal Code section

1016.5 and to enter a new order denying the motion). The first sentence of the

DISCUSSION in the latter opinion stated: “There is no basis for the court to rule in

‘equity’ as a means not to follow the law when presented with a motion pursuant to

section 1016.5.” (Opn. at p. 6.) Those opinions did not address motions under section

1473.7, which did not become effective until January 1, 2017.

Those decisions and others like them appear to have prompted the Legislature to

enact section 1473.7 in 2016 and broaden the grounds for vacating certain convictions

with harsh immigration consequences. (Stats. 2016, ch. 739, § 1.)

6.

party, based on the existence of the conviction or sentence, becomes final.”

(Stats. 2016, ch. 739, § 1, italics added.)

The use of the word “shall” in the phrase “shall be filed with reasonable diligence”

plainly indicated a moving party was required to act with reasonable diligence after the

later of the two events described in paragraphs (1) and (2) of subdivision (b) of former

section 1473.7. Thus, under the first version of section 1473.7, courts were required to

deny a motion when the moving party had not acted with reasonable diligence in filing

the motion.

B. Current Timeliness Provisions

The current version of subdivision (b) of section 1473.7 was enacted in 2018 and

became effective on January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment made

substantial changes to the timeliness provisions, which now provide:

“(1) Except as provided in paragraph (2), a motion pursuant to paragraph

(1) of subdivision (a) shall be deemed timely filed at any time in which the

individual filing the motion is no longer in criminal custody.

“(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed

untimely filed if it was not filed with reasonable diligence after the later of

the following:

“(A) The moving party receives a notice to appear in immigration

court or other notice from immigration authorities that asserts the

conviction or sentence as a basis for removal or the denial of an

application for an immigration benefit, lawful status, or

naturalization.

“(B) Notice that a final removal order has been issued against the

moving party, based on the existence of the conviction or sentence

that the moving party seeks to vacate.” (§ 1473.7, subd. (b), italics

added.)

7.

The amendment relaxed the mandatory rule enacted in 2016 and granted superior

courts the discretionary authority to deem a motion timely where the moving party did

not act with reasonable diligence after the later of the triggering events.6

Subdivision (b)(1) of section 1473.7 sets forth a mandatory general rule for the

timeliness of motions based on the absence of a meaningful understanding of the

immigration consequences of a plea. Its use of the phrase “shall be deemed timely”

plainly creates a mandatory rule. “It is a well-settled principle of statutory construction

that the word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily

construed as mandatory, particularly when both terms are used in the same statute.”

(Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443.) We adopt the

ordinary meaning of the word “shall” and conclude the rule established by section

1473.7, subdivision (b)(1) is mandatory. (See People v. Ledesma (1997) 16 Cal.4th 90,

103 [in ordinary usage, “shall” is mandatory].) The Legislature’s findings, which are

contained in the uncodified section of the 2018 amendment (Stats. 2018, ch. 825, § 1),

and other provisions of section 1473.7 do not indicate a contrary legislative intent.

The clause “[e]xcept as provided in paragraph (2)” clearly identifies an exception

to the mandatory rule stated in subdivision (b)(1) of section 1473.7. Based on the plain

meaning of the text, the mandatory rule is properly characterized as a general rule subject

to one exception.

Next, we consider the nature and scope of the exception. Subdivision (b)(2) of

section 1473.7 uses the phrase “may be deemed untimely.” “[I]n delineating the trial

court’s authority by use of the word ‘may,’ the statutory language itself indicates the trial

court has broad discretion.” (People v. Moine (2021) 62 Cal.App.5th 440, 448.) Thus,

6 For convenience, this opinion refers to the events described in subparagraphs (A)

and (B) of paragraph (2) of subdivision (b) of section 1473.7 as the “triggering events.”

8.

applying the ordinary meaning of the word “may,” we conclude the exception in

subdivision (b)(2) of section 1473.7 grants discretionary authority to the court.

The discretion to deem a motion untimely arises “if it was not filed with

reasonable diligence after the later of the later of the” triggering events. (§ 1473.7, subd.

(a)(2).) According to the definition of “if” in one legal dictionary, “[i]n deeds and wills,

this word, as a rule, implies a condition precedent, unless it is controlled by other words.”

(Black’s Law Dict. (6th ed. 1990) p. 746; see Shackley v. Homer (1910) 87 Neb. 146,

149–150 [“No doubt the general meaning of the word ‘if’ implies a condition precedent,

unless it be controlled by other words”].) We conclude this definition of “if” also

establishes its ordinary meaning when used by our Legislature in a statute. Applying this

ordinary meaning, we conclude the use of the word “if” in subdivision (b)(2) of section

1473.7 indicates the discretionary authority to deem a motion untimely is conditional.

The statutory condition is satisfied when the motion “was not filed with reasonable

diligence after the later of the” triggering events. (§ 1473.7, subd. (b)(2).) Only when

the condition is satisfied does the court have the discretion to deem a motion untimely.

Thus, the lack of reasonable diligence does not automatically require the superior court to

deem the motion untimely. Instead, the absence of reasonable diligence subjects the

motion to the court’s discretionary authority and, in exercising its discretion, the court

might deem the motion timely or might deem it untimely. Section 1473.7 does not

provide any guidance for exercising that discretion, such as a list of factors that should be

weighed by the court. Based on the lack of explicit statutory guidance, we conclude the

well-established general rule governing grants of discretion applies. Thus, the

“[d]iscretion is abused when the court exceeds the bounds of reason, all of the

circumstances being considered.” (People v. Bradford (1976) 17 Cal.3d 8, 20.) In other

words, before exercising its discretionary authority regarding the timeliness of the

motion, the court must consider the totality of the circumstances.

9.

C. Summary of Timeliness Principles

Based on the absence of ambiguities in the statutory text and the litigants’ decision

not to present extrinsic materials relevant to the construction of section 1473.7, we adopt

the plain meaning of the language. (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th

627, 634 [plain meaning of statute control and resort to extrinsic sources is unnecessary];

see generally, Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1495 [use of extrinsic

materials to identify latent ambiguity].) We conclude subdivision (b) of section 1473.7

unambiguously establishes the following principles governing the timeliness of a motion

to vacate a conviction based on the absence of a meaningful understanding and knowing

acceptance of the immigration consequences of a plea.

First, if “the individual filing the motion is no longer in criminal custody” and the

triggering events specified in subparagraphs (A) and (B) of subdivision (b)(2) of section

1473.7 have not yet occurred, the motion must be deemed timely under the mandatory

rule in subdivision (b)(1) of section 1473.7.

Second, if the triggering events have occurred, the superior court must determine

whether the motion was “filed with reasonable diligence after the later of” the triggering

events. (§ 1473.7, subd. (b)(2).)

Third, if the superior court determines the moving party acted with reasonable

diligence after the later of the triggering events, the motion must be deemed timely under

the mandatory rule in subdivision (b)(1) of section 1473.7. In other words, the

discretionary exception to deem the motion untimely does not apply.

Fourth, if the superior court determines the moving party did not act with

reasonable diligence after the later of the triggering events, the court must exercise its

discretionary authority and decide whether to deem the motion untimely. To properly

exercise the discretionary authority granted by subdivision (b)(2) of section 1473.7, the

court must consider the totality of the circumstances.

10.

II. APPLICATION OF TIMELINESS PROVISIONS*

A. Superior Court’s Decision

The superior court’s analysis of Perez’s motion to vacate did not expressly apply

the foregoing principles or otherwise refer to the language of section 1473.7. Instead, the

court referred to an earlier case in which he (1) used the term equity, (2) concluded equity

demanded that he grant the motion, and (3) was overturned by this court. After

describing that earlier case, the court concluded: “While I think there are a bunch of

humanitarian reasons why it should be granted, I have to say the motion is denied.”

The court’s statements from the bench and the subsequent minute order did not

include the finding required by section 1473.7, subdivision (e)(4). That provision states

in relevant part: “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.” Because the court did not make

this finding and the opposition to the motion did not address Perez’s understanding or the

existence of prejudicial error, we infer the court did not reach those issues and, instead,

determined the motion was untimely.

We conclude the superior court’s determination that the motion was untimely was

based on legal error. Specifically, the court did not apply the provisions set forth in

subdivision (b) of section 1473.7 that govern the timeliness of the motion. The court’s

reference to an earlier case addressing a section 1016.5 motion suggests the court viewed

Perez’s motion to vacate as being brought under that section instead of section 1473.7 or,

alternatively, believed the criteria was the same for each type of motion. Both

alternatives are incorrect. Section 1016.5 does not contain a timeliness provision like

* See footnote, ante, page 1.

11.

subdivision (b) of section 1473.7. Also, the analysis in our 2011 opinion could not have

stated anything relevant to the timeliness of a section 1473.7 motion because section

1473.7 did not exist in 2011.

Having concluded the timeliness principles set forth in subdivision (b) of section

1473.7 were not applied to Perez’s motion, we next consider how to remedy that error.

One possibility would be to remand the matter to the superior court with instructions to

analyze the timeliness of the motion using the principles established by section 1473.7,

subdivision (b). Instead, we will consider the circumstances surrounding Perez’s motion

and determine whether the timeliness of the motion can be determined as a matter of law.

B. The Motion Was Timely Filed

The record establishes that Perez “is no longer in criminal custody.” (§ 1473.7,

subd (b)(1).) Therefore, he falls within the mandatory general rule in subdivision (b)(1)

of section 1473.7 unless the exception set forth in subdivision (b)(2) of section 1473.7

applies.

An analysis of whether the discretionary exception might apply to Perez starts

with determining whether the triggering events specified in subparagraphs (A) and (B) of

subdivision (b)(2) of section 1473.7 have occurred and, if so, the date of the last to occur.

Perez’s motion stated he “had an individual hearing with the US Immigration

Court on September []3, 2019 in San Francisco, California, where the judge ordered that

he be returned to Mexico. Mr. Perez was returned to Mexico on September 14, 20[1]9, in

Case No. A070 716 459, and has been there since.” The district attorney’s opposition to

Perez’s motion conceded these facts, stating: “On September []3, 2019, the United States

Immigration Court ordered the Defendant be returned to Mexico. Defendant is currently

in Mexico.” It appears Perez’s attorney relied on this concession when he appeared at the

January 3, 2020 hearing because the attorney did not bring a copy of the immigration

order or other documents showing its issuance. He did, however, bring documents

12.

relating to Perez’s parents and children to further demonstrate Perez’s strong personal ties

to this country.

We conclude the order of the immigration court issued in September 2019

qualifies as “a final removal order … issued against” Perez for purposes of section

1473.7, subdivision (b)(2)(B). We further conclude that Perez’s removal to Mexico in

September 2019 constituted notice that the final order had been issued. Therefore, the

triggering event described in section 1473.7, subdivision (b)(2)(B) occurred in September

2019.

A comparison of the September 2019 date with December 23, 2019—the date

Perez filed his motion—shows it took Perez over two, but less than three, months to file

his section 1473.7 motion. Accordingly, we consider whether this lapse of time means

the motion “was not filed with reasonable diligence” as that phrase is used in section

1473.7, subdivision (b)(2). Here, Perez was physically removed from the United States

and was at least 200 miles away from the county where the motion was filed. In such

circumstances, we find as a matter of law that Perez acted with reasonable diligence in

getting his section 1473.7 motion filed in less than three months after his removal to

Mexico. Because Perez acted with reasonable diligence, his motion must be deemed

timely pursuant to section 1473.7, subdivision (b)(1). Consequently, there is no need to

remand this case to the superior court to consider the totality of the circumstances and

make a discretionary determination of the motion’s timeliness.

III. MERITS OF THE MOTION*

A. General Principles

The Legislature adopted section 1473.7 to make relief available “to certain

immigrants who accepted pleas without understanding the immigration-related

* See footnote, ante, page 1.

13.

consequences of such decisions.” (Vivar, supra, 11 Cal.5th at p. 528.) Subdivision (a) of

section 1473.7 states:

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

a conviction or sentence for any of the following reasons: [¶] (1) The

conviction or sentence is legally invalid due to prejudicial error damaging

the moving party’s ability to meaningfully understand, defend against, or

knowingly accept the actual or potential adverse immigration consequences

of a plea of guilty or nolo contendere. A finding of legal invalidity may,

but need not, include a finding of ineffective assistance of counsel.”

The moving party has the burden of proof by a preponderance of the evidence. (§

1473.7, subd. (e)(1); Vivar, supra, 11 Cal.5th at p. 517.) In accordance with the statutory

text, Perez must demonstrate (1) an “error” occurred, (2) the error was “prejudicial,” and

(3) the error damaged his ability to meaningfully understand, defend against, or

knowingly accept the actual or potential adverse immigration consequences of his plea.

B. Standard of Review

A superior court’s decision to grant or deny a section 1473.7 motion is subject to

independent review. “ ‘[U]nder independent review, an appellate court exercises its

independent judgment to determine whether the facts satisfy the rule of law.’

[Citation.] … ‘ “[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.] … In section 1473.7

proceedings, appellate courts should … give particular deference to factual findings

based on the trial court’s personal observations of witnesses. [Citation.] … Ultimately it

is for the appellate court to decide, based on its independent judgment, whether the facts

establish prejudice under section 1473.7.” (Vivar, supra, 11 Cal.5th at pp. 527–528, fn.

omitted.) As a practical matter, the independent standard of appellate review is

appropriate because the superior court and the appellate court are in the same position

when reviewing a cold record and interpreting written declarations. (Id. at p. 528.)

14.

In this case, no witnesses testified at the January 2020 hearing and the judge who

heard the motion was not the judge to accepted Perez’s plea or sentenced him. Because

the cold record in this case places us in the same position as the trial court, we will

independently review the record and determine whether Perez carried his burden of

proving a prejudicial error damaged his ability to meaningfully understand, defend

against, or knowingly accept the actual or potential adverse immigration consequences of

his plea. (§ 1473.7, subd. (a)(1).)

C. The Error

Perez’s motion asserted an error on the part of his defense attorney damaged his

ability to understand and defend against the adverse immigration consequences of his

plea of nolo contendere. Perez asserts he does not recall any advisement by the superior

court of the immigration consequences of his plea. This assertion is supported by the

minute order from his plea hearing, which does not show a check mark inside the

parentheses before the line stating he was advised of “possible deportation if not a citizen

of the United States.” Perez also asserts he does not recall any advisement by his defense

attorney and, instead, states Kordell informed him that there would be no negative

immigration consequences because Perez was a legal permanent resident. Kordell died in

2015 and, as a result, is not available to confirm or deny Perez’s account of the advice

given.

To establish the type of “error” required by section 1473.7, a defendant need not

establish ineffective assistance of counsel. Section 1473.7, subdivision (a)(1) states: “A

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

counsel.” Accordingly, “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.’ ” (People v. Mejia (2019)

15.

36 Cal.App.5th 859, 871 (Mejia), quoting People v. Camacho (2019) 32 Cal.App.5th

998, 1009 (Camacho).)

Based on our independent review in accordance with the principles established in

Vivar, we conclude Perez has carried his burden of showing an error in the form of a

failure to advise him of the immigration consequences of his plea. His declaration, which

has contemporaneous corroboration in the form of the minute order, is sufficient to carry

his burden.

D. Misunderstanding

Here, the information that was not provided to Perez directly involved the

immigration consequences of his plea. The absence of information about those

consequences damaged Perez’s ability to meaningfully understand and knowingly accept

the immigration consequences of entering a no contest plea. Stated another way, it is not

reasonable to expect that the 19-year-old Perez had the level of legal sophistication and

knowledge to understand how his plea would impact his status as a legal permanent

resident. (See People v. Patterson (2017) 2 Cal.5th 885, 898 [“ ‘Immigration law can be

complex’ ”].) Thus, we conclude Perez’s declaration is credible in asserting: “I did not

know that my plea and resultant conviction would have such horrible consequences.” It

follows that Perez has carried his burden of showing the error damaged his “ability to

meaningfully understand, defend against, or knowingly accept the actual or potential

adverse immigration consequences of [his] plea.” (§ 1473.7, subd. (a)(1).)

E. Prejudice

Section 1473.7 does not contain a definition of “prejudicial.” In Vivar, the

Supreme Court concluded an error is prejudicial if the defendant “demonstrat[es] a

reasonable probability that [he] would have rejected the plea if [he] had correctly

understood its actual or potential immigration consequences.” (Vivar, supra, 11 Cal.5th

at p. 529.) Courts assess whether a reasonable probability has been shown by considering

16.

the totality of the circumstances. (Ibid.) Particularly relevant factors include (1) the

defendant’s ties to the United States, (2) the importance the defendant placed on avoiding

removal, (3) the defendant’s priorities in seeking a plea bargain, and (4) whether the

defendant had reason to believe an immigration-neutral negotiated disposition was

possible. (Id. at pp. 529–530.)

Perez’s declaration asserted he would not have entered a no contest plea if he “had

known of the horrible immigration consequences that would have resulted[,] requiring

that I be deported, and preventing me from applying for [legal permanent resident] status

again.” This assertion must be corroborated with objective evidence. (Vivar, supra, 11

Cal.5th at p. 530.) Here, as in Vivar, the objective evidence consists of details about

Perez’s strong personal ties to the United States. These ties are contemporaneous

evidence supporting the inference that Perez would have rejected the plea and taken the

risk of going to trial to avoid removal from the United States. (See Camacho, supra, 32

Cal.App.5th at pp. 1011–1012 [defendant’s strong ties to this country supported inference

that he “would never have entered the plea if he had known that it would render him

deportable”].) At the time of his plea, Perez had spent the last 16 years of his life in the

United States, had been a legal permanent resident for approximately five years, and had

virtually no ties to Mexico. His parents are legal permanent residents of the United

States.7 These personal details provide sufficient corroboration and establish a

reasonable probability that Perez would not have entered the plea that resulted in his

deportation if he had meaningfully understood the immigration consequences at the time

of his plea and, instead, would have risked going to trial if he had known he was going to

be deported as a result of his plea.

7 The copies of the birth certificates of Perez’s children that his attorney brought to

the January 3, 2020, hearing are not part of the record and, therefore, we cannot

determine if one or more of the children were alive at the time of his plea.

17.

To summarize, based on our independent review of the record, we conclude Perez

has demonstrated the existence of an error that was both prejudicial and damaging to his

ability to meaningfully understand and accept the immigration consequences of his no

contest plea. As a result, this matter should be remanded to the superior court with

directions to grant his section 1473.7 motion. (See People v. Rodriguez (2021) 60

Cal.App.5th 995, 1006 [reversed order denying defendant’s motion to vacate conviction

and remanded with directions to grant motion]; Mejia, supra, 36 Cal.App.5th at p. 874

[reversed order denying defendant’s § 1473.7 motion and remanded to allow him to

withdraw his guilty pleas]; Camacho, supra, 32 Cal.App.5th at pp. 1004, 1012 [reversed

denial of motion and remanded with instructions to vacate the conviction].)

DISPOSITION

The order denying the section 1473.7 motion is reversed. The matter is remanded

and the superior court is directed to grant the motion and vacate the conviction.

FRANSON, Acting P.J.

WE CONCUR:

SMITH, J.

SNAUFFER, J.

18.