Filed 9/28/18

                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                    E068282

v.                                                   (Super.Ct.No. INF1202696)

EDGAR ESPINOZA,                                      OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Alfonso Fernandez

(retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) and Charles Everett Stafford, Jr., Judges. Reversed with

directions.

        Jason L. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and

Respondent.


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                      FACTUAL AND PROCEDURAL HISTORY

       A.      PROCEDURAL HISTORY

       On October 29, 2012, a complaint charged defendant and appellant Edgar

Espinoza with one count of possession of methamphetamine for sale under Health and

Safety Code section 11378; on November 6, 2012, defendant pled guilty to the charge.

The court suspended imposition of defendant’s sentence and placed him on three years of

formal probation with 220 days in local custody.

       On May 3, 2013, defendant filed a motion to withdraw his guilty plea under Penal

Code section 10181 claiming that he was not advised of the immigration consequences of

his plea. On October 17, 2013, both defendant and defense counsel, who had represented

defendant at his plea negotiations, testified at the section 1018 motion. The trial court

denied the motion.

       On July 8, 2014, defendant admitted a probation violation and was sentenced to 16

months in county jail.

       On January 23, 2017, defendant filed a motion to withdraw his guilty plea under

the newly-enacted section 1473.7. In his motion, defendant represented that he had been

“placed into removal proceedings.” In support of his motion, defendant included a notice

to appear in removal proceedings. On March 20, 2017, the trial court denied defendant’s

motion.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


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       On May 5, 2017, defendant filed a timely notice of appeal.2

       B.     FACTUAL HISTORY

       The facts underlying defendant’s conviction under section 11378 are not relevant

to this appeal as the appeal challenges the trial court’s denial of defendant’s motion to

withdraw his guilty plea on the grounds that he was not sufficiently advised of the

immigration consequences of his plea.

                                      DISCUSSION

       Defendant contends that the trial court abused its discretion in denying his motion

to vacate his conviction and set aside his guilty plea under section 1473.7. The People

contend that the trial court properly denied defendant’s motion because: (1) section

1473.7 “does not retroactively apply” to defendant; and (2) defendant “was well aware of

the immigration consequences of his guilty plea.” For the reasons set forth below, we

hold that section 1473.7 does apply in this case, and that the trial court erred in denying

defendant’s motion.

       A.     LEGAL BACKGROUND

       Section 1473.7 provides: “A person no longer imprisoned or restrained may

prosecute a motion to vacate a conviction or sentence” for one of two reasons, including

that “[t]he conviction or sentence is legally invalid due to a prejudicial error damaging

       2 On February 7, 2018, defendant filed a motion requesting that we take judicial
notice under California Rules of Court, Rule 8.252, Evidence Code section 452,
subdivision (c), and Evidence code section 459, subdivision (a), of documents published
by the legislative offices as part of the enactment of Penal Code sections 1016.3 and
1473.7. On February 8, 2018, we reserved the ruling on the request for consideration
with the appeal. We hereby grant defendant’s request for judicial notice.


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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).) The motion must be made with “reasonable

diligence” after the party receives notice of pending immigration proceedings or a

removal order. (§ 1473.7, subd. (b).) The court must hold a hearing on the motion, and if

the moving party establishes by a preponderance of the evidence that he or she is entitled

to relief, the court must allow the person to withdraw his or her plea. (§ 1473.7, subd.

(e).)

        The People contend that section 1473.7 is not retroactive; thus, it cannot apply to

defendant, who pled guilty and whose deportation proceedings started before section

1473.7 became effective. In a recent case, People v. Perez (2018) 19 Cal.App.5th 818

(Perez), the Fourth Appellate District, Division One, held that the language of 1473.7

“indicates that it can be applied retroactively if the moving party satisfies the

requirements of the statute.” (Id. at p. 827.) We agree with our colleagues.

        In support of its argument, the People compare section 1473.7 with sections

1016.5, 1203.4a, and 1473.6. The People contend those sections indicate the Legislature

understands how to explicitly state when a statue applies retroactively. Because section

1473.7 does not contain analogous language, the People maintain the Legislature did not

intend it to apply retroactively. We disagree and do not find the specific language of

sections 1016.5, 1203.4a, and 1473.6 helpful in our analysis here.




                                              4
       Section 1016.5, subdivision (c), specifically states that the statue is not retroactive:

“With respect to pleas accepted prior to January 1, 1978, it is not the intent of the

Legislature that a court’s failure to provide the advisement required by subdivision (a) of

Section 1016.5 should require the vacation of judgment and withdrawal of the plea or

constitute grounds for finding a prior conviction invalid. Nothing in this section,

however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from

vacating a judgment and permitting a defendant to withdraw a plea.” Section 1203.4a,

which requires a trial court to dismiss misdemeanor or infraction convictions in certain

circumstances, specifically states that it applies to convictions occurring before and after

the statute’s effective date. (§ 1203.4a, subd. (d).) And, section 1473.6 allows a

defendant to move to vacate a judgment based on newly discovered evidence of fraud,

false testimony, or misconduct by a government official in connection with the

underlying case. (§ 1473.6, subd. (a)(1), (2) & (3).) The statute includes a time limit by

which a defendant can seek relief under the statute. (See § 1473.6, subd. (d). [within one

year of the date the new evidence was or reasonably could have been discovered or the

effective date of the statute, whichever is later].) “These statutes do not indicate that the

Legislature uses a specific type of language when decreeing a statute is retroactive.

Indeed, the statutes underscore the opposite conclusion. The Legislature uses no uniform

language, but instead, offers clarification as it sees fit.” (Perez, supra, 19 Cal.App.5th at

p. 825.)




                                              5
       “Unlike section 1016.5, section 1473.7 does not contain an explicit subdivision

stating the statute is not to be applied retroactively. (§ 1016.5, subd. (c).) That said,

there is no specific indication in section 1473.7 that it is to be applied retroactively like

subdivision (d) of section 1203.4a. Instead, section 1473.7 is somewhat like section

1473.6 in that both statutes contain a timeliness provision. (Compare § 1473.7, subds.

(b)(1) & (2), (c) with 1473.6, subd. (d)(1) & (2).) Thus, on a plain reading of the statue,

it appears a moving party can seek relief under it if he or she satisfies the statute’s three

requirements.” (Perez, supra, 19 Cal.App.5th at pp. 826-827.)

       The next step in the analysis is whether defendant satisfies the required elements

to bring a motion under section 1473.7. There are three requirements: “First, the moving

party can no longer be imprisoned or restrained. (§ 1473.7, subd. (a).)” (Perez, supra, 19

Cal.App.5th at p. 826.) “Second, the statute provides two reasons to challenge a

conviction or sentence: (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)); or (b) newly discovered evidence of actual innocence (§ 1473.7, subd.

(a)(2)).” (Ibid.) Then, finally, the motion must be timely. (Ibid.)

       Here, defendant has satisfied the first requirement—he is no longer in custody.

Moreover, just three weeks after section 1473.7 became effective, on January 23, 2017,

defendant filed a motion to set aside his plea under section 1473.7. Therefore, the motion

is timely.




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       B.      ANALYSIS

       The issue, therefore, is whether prejudicial error damaged defendant’s ability to

meaningfully understand or accept the actual or potential adverse immigration

consequences of his guilty plea. Defendant contends that the trial court erred in denying

his section 1473.7 motion to vacate his conviction because he made a sufficient showing

that his trial counsel’s performance was deficient and that he was prejudiced by the

deficiency. We agree.

       “Ineffective assistance of counsel that damages a defendant’s ability to

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

adverse immigration consequences of a guilty plea, if established by a preponderance of

the evidence, is the type of error that entitles the defendant to relief under section 1473.7.

[Citation.] To establish ineffective assistance of counsel, a defendant must demonstrate

that his counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms and that he was prejudiced by the performance.” People v.

Ogunmowo (2018) 23 Cal.App.5th 67, 75.)

       In this case, on November 6, 2012, defendant pled guilty to one count of willful

and unlawful possession of methamphetamine for sale under Health and Safety Code

section 11378. Prior to entering his plea, defendant acknowledged to the court that he

signed the plea form and that it had been fully explained to him. He was advised by the

trial court and the Tahl form3 that, as a non-citizen, “this conviction may have the


       3   In re Tahl (1969) 1 Cal.3d 122.


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consequences of deportation, exclusion from admission to the U.S., or denial of

naturalization pursuant to the laws of the United States.” (Italics and boldface added.)

       In his section 1473.7 motion, defendant argued that his trial counsel rendered

ineffective assistance of counsel (IAC) because counsel failed to properly advise

defendant of immigration consequences and failed to defend against immigration

consequences.

       At the hearing on March 20, 2017, defendant called his trial counsel, William

Belden, as a witness. Belden could not specifically recall representing defendant or what

advisements he discussed with defendant. However, his habit and custom was, at the

very least, to go over the advisements in the Tahl form and give clients the opportunity to

ask questions. In a substantial number of cases, he would simply cover the Tahl form,

unless the client asked specific questions, which would lead to a more involved

conversation. Belden could not recall whether there were involved conversations in this

case. His notes did not reference any discussion of immigration consequences.

       At the time Belden represented defendant, he considered a violation under Health

and Safety Code section 11378 a serious crime that that would be deportable, but he was

not aware that possession for sale was an “aggravated felony.” His current understanding

of immigration consequences of aggravated felonies is that “it’s more of a quicker route

to deportation, because certain rights are denied that might otherwise be available for the

person who has that conviction.”

       During his testimony, Belden stated that he did not believe that he attempted to

negotiate a plea with better immigration consequences. He could not specifically recall


                                             8
the case, but “I likely did not, because my notes did not indicate there was any discussion

on that.” If there had been such a discussion, it would most likely have been in his notes.

Moreover, he did not believe he consulted with an immigration attorney because he

would have included that in his notes, too, if he had. Since he subsequently transferred to

a juvenile department, Belden often inquires whether a client is a citizen, and also

consults with immigration attorneys; he only recently started this practice.

       Defendant testified that he has a green card and has lived in the United States

since he was four years old. His siblings were born in the United States and are legal

citizens. Defendant’s recollection was that Belden went through the Tahl form with him.

Defendant recalled Belden “just saying, you know, sign it here, initial here.” Belden

never discussed the fact that defendant could potentially plea to some other code section

than Health and Safety Code section 11378. Defendant did not recall any discussion

about a violation of Health and Safety Code section 11378 being an “aggravated felony.”

Defendant testified that he would not have signed the plea form had he known that Health

and Safety Code section 11378 was an aggravated felony that required mandatory

deportation. Defendant agreed to plea because “it’s not that bad, you know, go ahead and

do my time and get out.” But, he would not have agreed to the plea deal had he known

deportation was mandatory. Removal proceedings were currently pending.

       At the hearing, defense counsel argued that Belden’s performance was deficient in

two ways. First, Beldan’s bare advisement going through the Tahl form and stating that

defendant could be deported was insufficient. Defendant pled guilty to an aggravated

assault, which meant mandatory deportation. The evidence clearly showed Belden did


                                             9
not explain that pleading guilty to violating Health and Safety Code section 11378 meant

certain deportation unless defendant could prove that he would be tortured in his home

country. Moreover, Beldan failed to attempt to negotiate for a plea to a crime with less

severe immigration consequences. In arguing the motion, defense counsel stated that if

defendant “doesn’t get this conviction vacated, he’s going to get deported. The

immigration judge has told us as much. The only reason he’s still here is because of the

infamous backlog in the immigration courts.”

       The trial court denied defendant’s motion. The court stated:

       “What we’re left with, then, is a form that advises you that you could be deported,

which I would think that if you read that, and knowing your situation, you might say wait

a second, let’s talk some more about this. If you hadn’t already.

       “And then the judge again tells you you could be deported, couple times. And at

one point the judge says even if you know this, do you still wish to proceed, and you said

yes.

       “I’m not sure there’s any requirement in the law for the court to go any further

than what they did in this case in admonishing you of the consequences of a plea. And

because of that, I’m not satisfied that the defense has carried the burden.”

       From the evidence cited ante, it is clear trial counsel did not know that pleading

guilty to Health and Safety Code section 11378, which constituted an aggravated felony,

would mandate deportation of defendant. Moreover, although the trial court advised

defendant that he could be deported, defendant was not informed that deportation would

be mandatory. This is not a case where deportation was a possibility. This case


                                             10
presented a situation where pleading guilty to Health and Safety Code section 11378

mandated deportation. Trial counsel should have been aware of or researched the actual

immigration consequences of pleading guilty to Health and Safety Code section 11378,

and advised defendant of the immigration consequences. Trial counsel, by simply going

over the Tahl form and advising defendant that he could be deported, is objectively

deficient performance under prevailing professional norms.

       The next question is whether defendant was prejudiced by his trial counsel’s

deficient performance. “To establish prejudice, a ‘defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ [Citation.] ‘[W]hen a defendant

claims that his counsel’s deficient performance deprived him of a trial by causing him to

accept a plea, the defendant can show prejudice by demonstrating a “reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” ’ [Citation.] 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. [Citation.] As the United States Supreme Court

recently explained in Lee v. [United States (2017)] 137 S.Ct. 1958, 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 trial,’ where ‘avoiding

deportation was the determinative factor for [the defendant].’ [Citation.] “Courts should

not upset a plea solely because of post hoc assertions from a defendant about how he


                                               11
would have pleaded but for his attorney’s deficiencies. Judges should instead look to

contemporaneous evidence to substantiate a defendant’s expressed preferences.’ ”

(People v. Ogunmowo, supra, 23 Cal.App.5th at p. 78.)

       In his declaration, defendant stated that, “I now realize, after speaking with my

current attorney, that there is no discretionary relief in immigration for a person like

myself convicted of an aggravated felony. I was unaware of these severe consequences

when I pled guilty to this offense, had I known of the immigration consequences I would

not have pled guilty. Rather, I would have held out for a better deal or I would have

taken my case to trial. I would never have pled guilty had I known that it would result in

my deportation from this country.” Because defendant resided in the United States since

he was four years old as a lawful permanent residence, his family resided in the United

States, and he was employed as a maintenance supervisor at a Holiday Inn, it could be

reasonably probable that defendant would have rejected any plea that would have

mandated deportation. (See Lee v. United States (2017) 137 S.Ct. 1958, 1967.) Based on

this evidence, we find that defendant has established prejudice.

       Therefore, the trial court erred in denying defendant’s section 1473.7 motion to

vacate his conviction. Defendant met his burden of establishing by a preponderance of

the evidence (1) that trial counsel’s performance was deficient in misadvising defendant

about the immigration consequences of his guilty plea, and (2) that counsel’s incorrect

advice prejudiced defendant in that there is a reasonable probability that defendant would

not have pled guilty if properly advised. Accordingly, we reverse the order and remand

the matter to the trial court to allow defendant to withdraw his guilty plea.


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                                      DISPOSITION

      The order is reversed and the matter is remanded with directions to the trial court

to allow defendant to withdraw his guilty plea.

      CERTIFIED FOR PUBLICATION




                                                       MILLER
                                                                                            J.


We concur:


McKINSTER
                       Acting P. J.


CODRINGTON
                                 J.




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