Plea to conviction requiring mandatory deportation vacated under under Penal Code section 1473.7

People v. Villalba (Cal. Ct. App., Mar. 8, 2023, No. B318353) 2023 WL 2595696, at *1

Summary: Villalba appealed the denial of his motion under Penal Code section 1473.7, subdivision (a)1 to withdraw his 2017 no contest plea to a violation of section 273.5 and to vacate his conviction. Villalba asserted that he did not meaningfully understand the actual adverse immigration consequences of the conviction because of misadvice from his lawyer and from the Court. He also maintained that he would not have agreed to the plea if he had understood, and the trial court erred in denying the motion. The Court of Appeal found undisputed evidence demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pled no contest to an offense requiring mandatory deportation. The Court we reversed the order and remanded with directions to the trial court to grant the motion and vacate the conviction pursuant to section 1473.7, subdivision (e).

Plea and conviction

On April 26, 2017, Villalba waived preliminary hearing and negotiated a plea agreement under which he would plead no contest to the charge and admit the special allegation in exchange for a suspended imposition of sentence, conditioned upon 365 days in county jail, five years of felony probation, a protective order, 52 weeks of domestic violence classes and fines. After questions relating to defendant’s understanding of the terms and conditions, the court asked defendant, “… I don’t know if this applies to you or not. I don’t need to know. I just need to advise you that if you’re not a citizen of the United States, your plea of no contest will result in your deportation, denial of naturalization, denial of citizenship, denial of reentry into the country.” The court then asked, “Do you understand that?” and defendant replied, “Yes, Your Honor.”

Section 1473.7 and related legal principles

In 2018, the Legislature passed Assembly Bill No. 2867,  amending section 1473.7 effective January 1, 2019, and declaring that section 1473.7 “shall be interpreted in the interests of justice and consistent with the findings and declarations made in Section 1016.2 of the Penal Code.” (Stats. 2018, ch. 825, § 1(c).)

Section 1016.2 provides:

“(g) 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.

“(h) It is the intent of the Legislature to codify Padilla v. Kentucky [(2010) 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284] and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.” (Italics added.)

Accordingly, “defense counsel [must] provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases [and] must investigate and advise regarding the immigration consequences of the available dispositions ….” (§ 1016.2, subd. (a).)

As our Supreme Court stated in People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425 (Vivar), Padilla explained that “[b]ecause the prospect of deportation ‘is an integral part,’ and often even ‘the most important part,’ of a noncitizen defendant’s calculus in responding to certain criminal charges [citation], both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient.” (Vivar, supra, at p. 516, 278 Cal.Rptr.3d 2, 485 P.3d 425, quoting and citing inter alia, Padilla v. Padilla, supra, 559 U.S. at pp. 360, 364, 130 S.Ct. 1473 (Padilla).)

Section 1473.7 authorizes a defendant who is no longer in criminal custody to file a motion to vacate a conviction or sentence where “[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 conviction or sentence.” (§ 1473.7, subd. (a)(1).)

The statute provides that “[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1).)  Although the motion to vacate may be based on errors by counsel, the moving party need not demonstrate ineffective assistance under the Sixth Amendment.

Section 1473.7 requires a court to “vacate a conviction or sentence upon a showing, by a preponderance of the evidence, of ‘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, subds. (e)(1), (a)(1).) … [Citation.] If the motion is meritorious, ‘the court shall allow the moving party to withdraw the plea.’ (Id., subd. (e)(3).)” (Vivar, supra, 11 Cal.5th at p. 523.)

Immigration consequences of a section 273.5 conviction

Under federal law, a noncitizen convicted of a crime of domestic violence is deportable. (8 U.S.C. § 1227, (a)(2)(E)(i).) A crime of violence for which the term of imprisonment is at least one year is an “aggravated felony.” (8 U.S.C. § 1101(a)(43)(F).) A noncitizen who is convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory removal. (8 U.S.C. § 1228(c); see id., § 1227(a)(2)(A)(iii).) An aggravated felony conviction renders a noncitizen “ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. See [8 U.S.C. §] 1229b(a)(3), (b)(1)(C). Removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here.” (Sessions v. Dimaya (2018) 584 U.S. –––– [138 S.Ct. 1204, 1210-1211, 200 L.Ed.2d 549].) A violation of Penal Code section 273.5, subdivision (a) is a crime of violence. (Banuelos-Ayon v. Holder (9th Cir. 2010) 611 F.3d 1080, 1083, 1085.) It is an “aggravated felony” if it carries term of imprisonment of at least one year. (8 U.S.C. § 1101(a)(43)(F).)

Section 273.5, subdivision (a) provides: “Any person who willfully inflicts corporal injury resulting in a traumatic condition upon [the offender’s spouse] is guilty of a felony [which is punishable] by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year ….” Section 273.5, subdivision (a) is known as a wobbler. (People v. Jackson (2000) 77 Cal.App.4th 574, 576, 91 Cal.Rptr.2d 805.) It is punishable either as a felony or a misdemeanor in the discretion of the sentencing court. (People v. Vessell (1995) 36 Cal.App.4th 285, 288, 42 Cal.Rptr.2d 241.) Where an offense is a wobbler and the court suspends imposition of sentence and grants probation, as the sentencing court did here, the offense is deemed a felony unless and until the court subsequently reduces it to a misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877, 890, 195 Cal.Rptr.3d 638.) If not reduced, the offense remains “a felony for all purposes until judgment or sentence and if no judgment is pronounced it remains a felony [citations].” (People v. Esparza (1967) 253 Cal.App.2d 362, 364-365, 61 Cal.Rptr. 167.)

However, “whether a state classifies an offense as a ‘misdemeanor’ is irrelevant to determining whether it is an ‘aggravated felony’ for purposes of federal law.” For a crime of violence the determinative factor is “ ‘the term of imprisonment [of] at least one year.’ 8 U.S.C. § 1101(a)(43)(F).” Moreover

It does not matter that defendant was not sentenced to prison or even that no sentence was imposed, as “ ‘[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.’ [8 U.S.C.] § 1101(a)(48)(B).” (Arellano Hernandez, at pp. 1132-1133.) A suspended imposition of sentence and a grant of probation conditioned upon one year (365 days) in jail will render a violent crime an aggravated felony.

Villalba’s section 1473.7 motion

In January 2022, Villalba filed a motion under section 1473.7 to have his conviction vacated. In support of the motion, defendant submitted his declaration as well as the declarations of Attorney Erick Munoz, who represented him at the time of his plea, and an immigration attorney regarding federal law. He included letters of support from his wife, a United States citizen, his stepdaughters, in-laws, a niece, friends, and employer. Also attached were his marriage certificate, the birth certificates of his United States citizen children and stepchildren, and other exhibits documenting his longtime residence in the United States, including that he had become a lawful permanent resident of the United States in 2014.

In his declaration he averred that he was born in Mexico in 1979, came to the United States as a child with his parents in 1992, grew up in Los Angeles, met his wife in 2003, and they raised six children together. Villalba declared he had complied with all conditions of probation, including fees and all classes, and that he was detained by Immigration and Customs Enforcement (ICE), summoned to deportation proceedings due to conviction of an aggravated felony, and was currently incarcerated at a detention facility in Aldelato, California.

The trial court  found that he had properly advised of the immigration consequences and denied the motion.

The Court of Appeal found that Villalba was misadvised, and the evidence supports his claim that he believed he would not be subject to adverse immigration consequences if he later had the offense or time in custody reduced and that he was able to do so.

The Court of Appeal considered Villalba’s  deep ties to the United States, his minimal experience with the criminal justice system, his legal residency, as well as the support from family, friends, and his employer which corroborate his claim that his ability to remain in the United States with his family was a paramount concern. The Court concluded that it was reasonably probable that he would have rejected the plea had he correctly understood its actual immigration consequences. Villalba established prejudicial error that entitled him to relief under section 1473.7.

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