Filed 6/5/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                           2d Crim. No. B296742
                                    (Super. Ct. No. KA010841)
     Plaintiff and Respondent,        (Los Angeles County)

v.

JOSEFINA RUIZ,

     Defendant and Appellant.


       Assume a defendant wishes to plead guilty to a crime. She
is an immigrant and is told: 1) her plea of guilty may make her
ineligible to become a U.S. citizen; or 2) her plea of guilty will
make her ineligible to become a U.S. citizen. Is there a
significant distinction between the two advisements? Our
Supreme Court and the Legislature think there is.
       We, like all courts, must follow this view even when it
involves the reversal of a plea of guilty that occurred three
decades ago. We are mindful of the dissent’s concerns, but the
Supreme Court and the Legislature have spoken. The result here
is required by law. (See People v. Patterson (2017) 2 Cal.5th 885,
889, 895; Pen. Code, § 1473.7.) 1 In section 1473.7, the
Legislature broadened the standards to challenge guilty pleas
involving advisements concerning immigration consequences.
       Josefina Ruiz appeals an order denying her recent motion
to vacate her 1991 conviction for possession for sale of cocaine
base (Health & Saf. Code, § 11351.5) following her no contest
plea. Ruiz’s motion to vacate was filed pursuant to section
1473.7. She claimed her counsel did not advise her that a
mandatory consequence of her plea would make her “permanently
ineligible to ever become a legal resident of the United States.”
       We conclude Ruiz may pursue her current motion to vacate
the conviction. She had filed an earlier unsuccessful motion to
vacate the conviction in 2017. But that prior motion did not bar
the current motion because it was based on a different ground
and on an earlier version of section 1473.7. We reverse and
remand with instructions.
                               FACTS
       In 1991, an informant told police that drug sales were
occurring at Ruiz’s home. After a search of her home, the police
found 19 grams of cocaine and approximately $4,100 in a duffle
bag in Ruiz’s bedroom. Following her arrest, Ruiz entered into a
negotiated plea agreement and pled no contest to possession for
sale of cocaine base. She initialed an advisement in the written
plea agreement stating, “I understand that if I am not a citizen of
the United States, the conviction for the offense charged may
have the consequences of deportation, exclusion from admission
to the United States, or denial of naturalization pursuant to the
laws of the United States.” (Italics added.)

      All statutory references are to the Penal Code unless
      1

otherwise stated.


                                2
       On December 16, 2016, Ruiz filed a motion to vacate her
conviction and set a hearing date for January 6, 2017 (“2017
motion”). The 2017 motion was entitled “Notice of Motion and
Motion to Reopen Case and Vacate Conviction; Memorandum of
Points and Authorities [Pursuant to Cal. Penal Code §[§] 1016.5
and 1473.7].” The 2017 motion argued that her “conviction
should be vacated because the court did not ensure that [she] was
adequately warned before pleading guilty to a conviction that
may result in deportation.” (Italics added.) The trial court
denied the 2017 motion because the record showed that she was
advised her conviction “may have” negative immigration
consequences.
       In 2019, Ruiz filed a “Notice of Motion and Motion to
Vacate Conviction Pursuant to Section 1473.7.” She claimed she
“was not advised by her attorney that, because of her plea in this
case, she would be rendered permanently ineligible to ever become
a legal resident of the United States.” Ruiz claimed her attorney
did not defend her against the “immigration consequences that
she now faces,” including removal proceedings. Her prior counsel
brought a motion to vacate in 2017, pursuant to the general
advisement standard of section 1016.5, which does not involve
the mandatory immigration consequences she now faces for her
controlled substance conviction.
       The trial court denied the 2019 motion, ruling that it
lacked jurisdiction to consider Ruiz’s motion. It found the current
motion was an untimely “motion for reconsideration” of the prior
2017 motion.




                                3
                            DISCUSSION
                      Immigration Advisements
       Ruiz contends she did not receive an adequate advisement
about the immigration consequences of her plea. We agree.
       Under section 1016.5, subdivision (a), defendants must be
advised: “If you are not a citizen, you are hereby advised that
conviction of the offense for which you have been charged may
have the consequences of deportation, exclusion from admission to
the United States, or denial of naturalization pursuant to the
laws of the United States.” (Italics added.)
       The California Supreme Court has held, however, that the
words “may have” in a section 1016.5 immigration advisement
are not an adequate immigration advisement for defendants
charged with serious controlled substance offenses. (People v.
Patterson, supra, 2 Cal.5th at pp. 889, 895.) Defendants must be
advised that they will be deported, excluded, and denied
naturalization as a mandatory consequence of the conviction.
(Ibid.) “A defendant entering a guilty plea may be aware that
some criminal convictions may have immigration consequences
as a general matter, and yet be unaware that a conviction for a
specific charged offense will render the defendant subject to
mandatory removal.” (Ibid.)
       In 1991, when Ruiz pled no contest to her offense, the plea
form contained the following immigration advisement: “I
understand that if I am not a citizen of the United States, the
conviction for the offense charged may have the consequences of
deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United
States.” (Italics added.) This was not an adequate advisement




                                4
given the nature of her offense. (People v. Patterson, supra, 2
Cal.5th at pp. 889, 895.)
       In Ruiz’s 2017 motion, Ruiz’s counsel argued the 1991
conviction must be vacated because Ruiz was not advised that
her conviction “may result in deportation.” But this motion
should have been based on the ground that Ruiz was not advised
that these immigration consequences were mandatory. (People v.
Patterson, supra, 2 Cal.5th at pp. 889, 895; People v. Espinoza
(2018) 27 Cal.App.5th 908, 916-917.)
       The trial court denied the 2017 motion, ruling that the
advisement was valid because Ruiz was advised “the conviction
for the offense charged may have the consequences of
deportation.” The court erred because she was not advised that
the immigration consequences were mandatory. (People v.
Patterson, supra, 2 Cal.5th at pp. 889, 895; People v. Espinoza,
supra, 27 Cal.App.5th at pp. 916-917.)
       In summary, Ruiz’s 1991 advisement was not valid, her
counsel moved to set aside the plea on the wrong ground, and the
trial court erred in ruling she was properly advised. (8 U.S.C.
§ 1227(a)(2)(B); People v. Patterson, supra, 2 Cal.5th at p. 895;
People v. Espinoza, supra, 27 Cal.App.5th at pp. 916-917.)
     The Right to Bring a Motion in 2019 Under Section 1473.7
       Section 1473.7 was enacted in 2017. It authorized a
defendant to “prosecute 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.” (Former § 1473.7, subd. (a)(1).)
       In 2018, the Legislature passed Assembly Bill No. 2867 to
modify section 1473.7. This new law, effective January 1, 2019,




                                5
made it easier to retroactively challenge convictions based on the
ground that the defendant was not properly advised of the
immigration consequences. Before the passage of Assembly Bill
No. 2867, courts had ruled that defendants filing section 1473.7
motions and claiming their counsel erred on immigration
advisements had to meet the standards required by Strickland v.
Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 693-
694, 697-698] to set aside a conviction.
       Thus, in 2017, when Ruiz’s first motion was denied,
defendants seeking to pursue section 1473.7 motions to vacate
convictions based on counsel’s immigration advisement errors
were required: 1) to prove that “counsel’s performance fell below
an objective standard of reasonableness under prevailing norms,”
and 2) to also prove there is a “reasonable probability of a
different outcome if counsel had rendered effective assistance.”
(People v. Camacho (2019) 32 Cal.App.5th 998, 1005.) These
were barriers to successful motions to vacate based on facially
invalid immigration advisements.
       The new law, effective in 2019, eliminated the Strickland
requirements. (People v. Camacho, supra, 32 Cal.App.5th at pp.
1005-1006.) Now the trial court may set aside a conviction based
on counsel’s immigration advisement errors without a “finding of
ineffective assistance of counsel.” (Id. at p. 1006, italics omitted.)
A defendant need only show that there were “one or more” errors
that “were prejudicial and damaged [a defendant’s] ‘ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of [his
or her] plea.’ ” (Id. at p. 1009.)
       The 2019 amendment made another significant change.
After 2017, a defendant could prevail only on judicially created




                                  6
findings. The “grounds for the motions” were not included in the
statute. (Sen. Com. on Public Safety, Rep. on Assem. Bill No.
2867 (2017-2018 Reg. Sess.) June 12, 2018, p. 4.) The 2019
amendment corrected this problem by eliminating these judicially
created grounds. The new statute provides that in ruling on a
motion, “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 . . . .” (§ 1473.7,
subd. (e)(4), italics added.)
       Prior to the 2019 amendments, courts denied motions
brought under section 1473.7 by imposing various time
requirements. The new amendments substantially enlarged the
time periods in which to bring these motions. (§ 1473.7, subd.
(e)(1).) Consequently, the 2019 version of section 1473.7
authorizes a substantially different motion than the 2017
version.
       The California Legislature knew defendants, like Ruiz, had
been misadvised on immigration consequences, yet they were
losing section 1473.7 motions to vacate convictions in 2017 and
2018. The Legislature passed Assembly Bill No. 2867 to “provide
clarification to the courts regarding Section 1473.7” to “ensure
uniformity throughout the state and efficiency in the statute’s
implementation.” (Assem. Bill No. 2867 (2017-2018 Reg. Sess.)
ch. 825, § 1(b), p. 360.) It intended to change the law to give
defendants a new right to prevail using an easier new standard to
retroactively challenge invalid prior convictions. (People v.
Camacho, supra, 32 Cal.App.5th at pp. 1007, 1009; People v.
Perez (2018) 19 Cal.App.5th 818, 828.)




                                7
      On January 9, 2019, Ruiz filed her motion based on the
new law (§ 1473.7) and claimed there were one or more errors by
counsel. She noted that 1) her original counsel erred by not
advising her of the mandatory immigration consequences of her
plea; and 2) counsel who filed her 2017 motion to vacate erred in
basing the motion on the inapplicable general immigration
advisement standard in section 1016.5.
                         Collateral Estoppel
      The trial court erred in ruling that Ruiz’s 2019 motion,
brought after the amendments to section 1473.7 were passed, was
barred. It reasoned that she had lost a prior 2017 motion to
vacate which contained a reference to the 2017 version of section
1473.7.
      The People objected to Ruiz’s 2019 motion because her prior
2017 motion contained two brief references to section 1473.7.
Therefore, in 2019, Ruiz was not entitled to a “second bite at the
apple.”
      Ruiz claimed the 2017 motion briefly cited, among other
things, section 1473.7, but 1) her prior counsel ineffectively
brought the 2017 motion on the ground that the 1991 advisement
did not meet the requirements of the inapplicable section 1016.5
advisement provision; 2) “no motion was truly brought under
Section 1473.7”; and 3) the “prior motion was denied pursuant
only to Section 1016.5.”
      The trial court agreed with the People’s position. It
indicated that Ruiz should have filed a motion for reconsideration
in 2017 and it lacked jurisdiction at this time to consider her
motion.
      But Ruiz could not file a motion under the newly enacted
version of section 1473.7 in 2017. That new law, which facilitated




                                8
new challenges to convictions based on immigration advisement
errors, was not operative until January 1, 2019. Moreover, Ruiz
correctly noted that the 2017 motion based on the section 1016.5
advisement did not adequately notify her of the mandatory
immigration consequences for her drug offenses.
       Section 1473.7 was cited once in the caption and once in a
brief string cite in an argument heading in that 2017 motion.
But it was not the stated ground for that motion. (Kinda v.
Carpenter (2016) 247 Cal.App.4th 1268, 1277 [a motion must
state the grounds upon which it is based, and courts consider
only those grounds].) Given Ruiz’s offense, it was error for her
prior counsel to base the motion to vacate on whether there was
compliance with the section 1016.5 standard. “[T]he standard
section 1016.5 advisement . . . ‘cannot be taken as placing [the
defendant] on notice that, owing to his particular circumstances,
he faces an actual risk of suffering [mandatory immigration
consequences].’ ” (People v. Patterson, supra, 2 Cal.5th at pp.
895-896.)
       The People claim the citation to section 1473.7 in the 2017
motion is dispositive. But that was to the 2017 version of that
statute, not to the 2019 version which may provide relief to Ruiz
for her current motion. Moreover, at the hearing on the 2017
motion, the People’s only position was that the trial court was
properly relying on the plea form. But that form contained the
inadequate advisement that Ruiz’s conviction “may have the
consequences of deportation, exclusion from admission to the
United States, or denial of naturalization . . . .” (Italics added.)
       The trial court agreed with the People’s claim that allowing
Ruiz to proceed with her current 2019 motion would give her a




                                 9
second bite of the apple to challenge her counsel’s mistake that
occurred in 1991.
       But this is a different apple. The new 2019 law provides a
different standard for challenging and prevailing based on
immigration advisement errors. Because it involves different
issues than Ruiz’s prior motion, Ruiz’s current motion is not
barred by collateral estoppel. (Jackson v. City of Sacramento
(1981) 117 Cal.App.3d 596, 602-603 [collateral estoppel does not
apply where the issues in the prior proceeding are not identical to
the current issues]; California Hospital Assn. v. Maxwell-Jolly
(2010) 188 Cal.App.4th 559, 572 [“ ‘It is . . . well established that
when the proceeding in which issue preclusion is currently
sought involves different substantive law than the previous
proceeding, collateral estoppel does not apply’ ”]; Powers v.
Floersheim (1967) 256 Cal.App.2d 223, 230 [“Collateral estoppel
is not applicable to the decision of a mixed question of fact and
law, particularly if there has been an intervening change in the
law” (italics added)].) Nor is the collateral estoppel doctrine
applied “ ‘ “if injustice would result or if the public interest
requires that relitigation not be foreclosed.” ’ ” (Arcadia Unified
School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251,
257.)
       Moreover, as applied to criminal cases, “the policies
underlying collateral estoppel are far outweighed by other
policies which are vindicated by affording petitioner a trial de
novo.” (Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153,
170.) The Legislature did not intend that motions brought under
the new statutory standard would be denied because courts had
denied earlier motions to vacate brought on different grounds.
(See, e.g., People v. Ogunmowo (2018) 23 Cal.App.5th 67, 70, fn.




                                 10
2, 80 [the court denied motions to vacate a 1989 conviction in
2009 and 2014 with a finding it had advised defendant about
“possible immigration consequences,” but defendant later
prevailed on a section 1473.7 motion to vacate the 1989
conviction based on his counsel’s ineffective assistance in not
knowing the mandatory immigration consequences].)
       The new 2019 law gives Ruiz an expanded right to show
that 1) her first counsel erred in 1991; 2) her second counsel erred
in the way he attempted to challenge the 1991 immigration
advisement in the 2017 motion; and 3) as to both, she does not
have to meet the ineffective assistance of counsel standard that
was applicable earlier.
       The changes the Legislature made in 2019 were intended to
retroactively target convictions based on the type of inadequate
immigration advisements that occurred in this case. The
legislative declarations indicate the remedial goal of the new law:
“ ‘The State of California has an interest in ensuring that a
person prosecuted in state court does not suffer penalties or
adverse consequences as a result of a legally invalid conviction.’ ”
(People v. Camacho, supra, 32 Cal.App.5th at p. 1007.) Courts
have the authority to provide relief for those subject to such
convictions. (People v. Glimps (1979) 92 Cal.App.3d 315, 321 [the
trial court “has full power to vacate a void order without an
application on the part of anyone”].) Preventing Ruiz from
having a hearing on the merits of her motion would undermine
the new law’s legislative intent and would condone a facially
invalid advisement without providing a remedy for relief. “[A]
statute should not be construed as creating a right without a
remedy.” (Silberman v. Swoap (1975) 50 Cal.App.3d 568, 571.)
Section 1473.7, subdivision (d) provides that “[a]ll motions shall




                                11
be entitled to a hearing.” Ruiz is entitled to a hearing on the
merits.
                           DISPOSITION
       The order is reversed, and the matter is remanded to the
trial court with instructions to hear and consider Ruiz’s motion to
vacate her prior conviction on its merits.
       CERTIFIED FOR PUBLICATION.




                                     GILBERT, P. J.
I concur:




            PERREN, J.




                                12
YEGAN, J., DISSENTING:
       About thirty years ago, appellant entered into a negotiated
disposition of her criminal case. She avoided prison. Now she
seeks to vacate the conviction altogether because the federal
government seeks to impose an adverse immigration
consequence. With the aid of a new statute (Pen. Code, § 1473.7)
and new California Supreme Court precedent (People v. Patterson
(2017) 2 Cal.5th 885, 896, 898) which relied on United States
Supreme Court precedent (Padilla v. Kentucky (2010) 559 U. S.
356, 368), she may well be successful according to the majority
opinion. No California Supreme Court case says that Patterson is
retroactive, but the rule articulated in Padilla, is not retroactive.
(Chaidez v. United States (2013) 568 U.S. 342, 358.) So, why
should Patterson be retroactive? I am ever faithful to the rule of
Auto Equity Sales, Inc. vs. Superior Court (1962) 57 Cal.2d 450,
455, but Patterson does not resolve or even mention retroactivity.
It declares a new procedural rule and I would not apply it
retroactively. I must dissent.
       The Legislature and the Supreme Court have shown
concern with the defendant’s rights at the time of a guilty plea.
But the People of the State of California have rights too. These
rights must be considered in the equation. If appellant is
successful in vacating her plea, how are the People going to prove
a thirty-year-old narcotics case? The present state of the law not
only prejudices the People, it may allow an unfair result which
has absolutely nothing to do with guilt or innocence. This
devalues the work of the superior court when it took and accepted
the negotiated disposition. If successful, and if the People cannot
now prove the case, appellant has, in legal contemplation, never
been convicted and is not subject to immigration consequences.
This will certainly be a surprise ending for this criminal action.
       To be sure, at the time of the plea, the superior court
advised appellant that the plea “may have the consequence of
deportation . . . .” There was no admonition that she “will” be
deported as is now apparently required. There is a good reason
for the former advice: no one could have predicted then that the
federal government would immediately and/or automatically
deport her. Now the tail is wagging the dog and immigration
consequences jeopardize an otherwise legally sufficient final
judgment. Moreover, had the trial court advised appellant that
she “will” be deported, that would have been erroneous. How can
I so conclude? She was not then deported and apparently quietly
lived in the United States for thirty years!
       The rules regarding retroactivity of a newly announced
rules of criminal procedures are well known and need not be
repeated. (See, e.g., the scholarly opinion of Justice Bedsworth in
In re Ruedas (2018) 23 Cal.App.5th 777, analyzing and applying
the seminal case of Teague v. Lane (1989) 489 U.S. 288.)
       The sanctity of a thirty-year-old superior court final
judgment should not be sacrificed. There are rules curtailing
collateral attack on criminal judgments. A defendant cannot
sleep on asserted rights and he or she must timely assert them.
(E.g., In re Robbins (1998)18 Cal.4th 770, 778; In re Clark (1993)
5 Cal.4th 750, 759.) This rule should bar the relief here sought.
The Legislature should not alter the timeliness rule. Now it is
obvious why appellant is attacking the plea and I have some
sympathy for her. She may well have been a model citizen after
her 1991 crime. But there is another way to look at this. If she
should have been deported in 1991, she has had the benefit of




                                 2
living in the United States for thirty years. So in reality, there
was no immediate or automatic deportation consequence of her
plea and conviction.
       Finally, if the majority is correct, there are undoubtedly
many similarly situated defendants who will seek relief. There is
an irony here which must be noted. The defendants with federal
immigration problems may have their convictions “erased” and
the defendants who are lawfully in the United States will remain
convicted.
       For the above reasons, I must respectfully dissent.
       CERTIFIED FOR PUBLICATION.



                              YEGAN, J.




                                3
                    Steven D. Blades, Judge

             Superior Court County of Los Angeles

                ______________________________



      Gary Finn, under appointment by the Court of Appeal, for
Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Steven D. Matthews and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
