69 Cal.App.5th 1063
Cal. Ct. App.2021Background
- In 1997 Bravo pleaded guilty, with a Spanish interpreter, to felony domestic violence (Pen. Code §273.5) and child cruelty (§273a) pursuant to a plea bargain; sentence suspended, probation and 25 days’ credit were imposed.
- The written plea form included a §1016.5-style advisement stating that, if not a U.S. citizen, the conviction “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.” Bravo signed and initialed the form.
- Bravo later claimed he was not adequately warned of the immigration consequences, that counsel and the interpreter failed to advise him, and that he pleaded only to avoid an imminent ICE sweep and to return to work to support his family.
- In 2018 Bravo moved to vacate under Penal Code §§1016.5 and 1473.7; the trial court denied relief, and this court previously affirmed; the Supreme Court remanded for reconsideration in light of People v. Vivar.
- On independent review the court held the plea form satisfied the literal §1016.5 wording, but under §1473.7 found the advisement substantively inadequate ("may have" insufficient for mandatory deportation) yet denied relief because Bravo failed to prove prejudice or that he would likely have rejected the plea or secured an immigration-neutral disposition. Relief was denied and the judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plea advisement satisfied Penal Code §1016.5 | The written plea form contained the statutory wording; thus the statutory advisement requirement was met | Bravo contended he was not properly admonished of immigration consequences and so his plea was not knowing and voluntary | The court held the form’s wording matched §1016.5, so that statutory advisement claim failed |
| Whether the plea was legally invalid under §1473.7 because immigration advisement was inadequate and prejudicial | The People argued Bravo failed to show prejudice or contemporaneous evidence he would have rejected the plea or obtained an immigration-neutral plea | Bravo argued the "may have" language was inadequate, he would have refused the plea or sought a different plea if properly advised, and therefore the conviction is invalid | The court held the advisement was substantively inadequate for a mandatory-deportation offense but Bravo failed to prove prejudice (no objective contemporaneous evidence he would have rejected the plea), so §1473.7 relief denied |
| Whether newly discovered evidence of actual innocence warranted vacatur under §1473.7 | The People maintained Bravo produced no credible newly discovered evidence of actual innocence | Bravo asserted contemporaneous defenses (girlfriend’s statement, alleged errors in reports) sufficient to raise an actual-innocence claim | The court found no credible newly discovered evidence and no abuse of discretion in denying relief on the actual-innocence prong |
Key Cases Cited
- People v. Vivar, 11 Cal.5th 510 (Cal. 2021) (adopts independent-review standard for §1473.7 prejudice and discusses factors for assessing whether a defendant would have rejected a plea)
- People v. Ruiz, 49 Cal.App.5th 1061 (Cal. Ct. App. 2020) ("may have" language inadequate where conviction mandates deportation)
- People v. Camacho, 32 Cal.App.5th 998 (Cal. Ct. App. 2019) (prejudice standard for immigration-advisement claims and demonstration of defendant’s choice)
- People v. Martinez, 57 Cal.4th 555 (Cal. 2013) (standard for showing reasonable probability a defendant would have rejected a plea if properly advised)
- In re Alvernaz, 2 Cal.4th 924 (Cal. 1992) (postconviction claims require corroborating contemporaneous evidence beyond self-serving declarations)
- People v. Mejia, 36 Cal.App.5th 859 (Cal. Ct. App. 2019) (courts should look to contemporaneous evidence to substantiate a defendant’s claimed preferences about pleas)
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (characterization of certain convictions as aggravated felonies for immigration purposes)
- Sessions v. Dimaya, 138 S. Ct. 1204 (U.S. 2018) (constitutional analysis relevant to aggravated-felony categorization)
- Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016) (section 273a not an aggravated felony under INA)
- In re Hernandez, 33 Cal.App.5th 530 (Cal. Ct. App. 2019) (courts should corroborate defendant’s postconviction assertions with contemporaneous evidence)