73 Cal.App.5th 654
Cal. Ct. App.2022Background
- Abdelsalam, a noncitizen admitted on a fiancé visa (allegedly fraudulently obtained), was charged with multiple offenses and pled no contest to making criminal threats in exchange for probation and local custody.
- At the plea hearing he had an Arabic interpreter and counsel; he signed and initialed a written plea form that expressly stated (in mandatory language) the plea "will result in your deportation" and acknowledged discussing immigration consequences with counsel.
- In court the judge orally advised that the plea would result in deportation; Abdelsalam responded that he understood and would "wait for immigration."
- After ICE detained him and removal proceedings began, Abdelsalam moved under Penal Code §1473.7 to vacate the conviction, arguing he did not meaningfully understand the deportation consequence and counsel failed to advise him.
- The trial court denied the motion (after a remand for a hearing); the Court of Appeal affirmed, finding the record showed adequate advisals, no corroborating evidence to the contrary, and no reasonable probability he would have rejected the plea.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Abdelsalam) | Held |
|---|---|---|---|
| Whether the trial court applied the correct preponderance standard under §1473.7 | Court presumed to apply the statutory preponderance standard; nothing in record shows otherwise | Court failed to state the burden and may have used wrong standard | Affirmed — presumption that court applied proper standard; appellant failed to rebut it |
| Whether appellant meaningfully understood the immigration consequences of his plea | Written and oral advisals (mandatory language) plus counsel/interpreter present establish understanding | Appellant said counsel never explained immigration consequences and he would not have pled if he had known | Affirmed — record (form, colloquy, counsel’s statements) shows appellant was advised and acknowledged understanding |
| Whether appellant produced sufficient corroborating evidence to support §1473.7 relief | People: defendant’s self-serving declaration is insufficient without independent corroboration | Appellant: his declaration and assertions suffice to show lack of understanding | Affirmed — self-serving statements uncorroborated; unlike Vivar/Camacho, no counsel testimony or contemporaneous records supporting appellant |
| Whether the alleged error was prejudicial (reasonable probability he would have rejected the plea) | Given ties, circumstances, exposure to greater charges, and recent arrival with fraudulently procured visa, no reasonable probability he would have rejected plea | Abdelsalam: deportation was outcome-determinative and he would have gone to trial to avoid it | Affirmed — considering totality (ties, priorities, ICE involvement), appellant unlikely to have rejected the plea |
Key Cases Cited
- People v. Vivar, 11 Cal.5th 510 (Cal. 2021) (articulates §1473.7 standard, independent review, and factors for prejudice inquiry)
- People v. Camacho, 32 Cal.App.5th 998 (Cal. Ct. App. 2019) (corroboration by counsel testimony can support vacatur under §1473.7)
- In re Resendiz, 25 Cal.4th 230 (Cal. 2001) (defendant’s claim that competent advice would have changed plea must be corroborated by objective evidence)
- In re Alvernaz, 2 Cal.4th 924 (Cal. 1992) (same principle on corroboration of plea-withdrawal claims)
- People v. Martinez, 57 Cal.4th 555 (Cal. 2013) (trial court may reject unsupported assertions about what defendant would have done)
- Ross v. Superior Court, 19 Cal.3d 899 (Cal. 1977) (presumption that trial court followed the law absent evidence to the contrary)
- People v. Olvera, 24 Cal.App.5th 1112 (Cal. Ct. App. 2018) (discusses need for evidence that nondeportable disposition was available)