76 Cal.App.5th 102
Cal. Ct. App.2022Background
- In 1989 Diaz (then ~18, a Mexican national and temporary resident) pleaded no contest to second-degree robbery (Pen. Code §211) with a personal-use-weapon enhancement (§12022(d)) and was sentenced to three years.
- At plea colloquy the prosecutor advised that a noncitizen conviction "could bring about your deportation," but Diaz later asserted his counsel never discussed immigration consequences and that he did not understand them.
- Diaz’s temporary resident status was set to expire; he missed a green-card appointment due to incarceration. He was deported in 2013 based on the robbery conviction, reentered illegally, and in 2020 faced imminent deportation when he filed to vacate the 1989 plea under Penal Code §1473.7.
- Diaz’s §1473.7 motion alleged he did not understand the immigration consequences and would have rejected the plea if properly advised; he did not allege ineffective assistance of counsel.
- The trial court denied the motion, finding Diaz’s declarations not credible, contemporaneous evidence showed he knew his status and the risks, and he failed to prove prejudice (no reasonable probability he would have rejected the plea). The Court of Appeal affirmed.
Issues
| Issue | People (Respondent) | Diaz (Appellant) | Held |
|---|---|---|---|
| Eligibility/timeliness/custody under §1473.7 | Motion untimely and barred by federal custody | Motion timely; §1473.7 available despite federal custody | Court treated motion as timely and reachable; custody argument not determinative on appeal |
| Whether counsel failed to advise of immigration consequences | Diaz’s declarations are self-serving and insufficient | Counsel did not ask about status or advise; Diaz unaware plea made him deportable | Court found insufficient evidence that counsel failed to advise; contemporaneous record and behavior made advisement likely |
| Prejudice — reasonable probability Diaz would have rejected the plea if properly informed | Evidence (serious facts, lack of alternative offers, strong ID, bloody knife) makes it unlikely Diaz would have refused plea | If informed conviction made him deportable, Diaz would have sought a different resolution or trial | No reasonable probability shown; strong incentive to accept plea to avoid much longer exposure at trial |
| Standard of review for §1473.7 mistake-of-law claims | Apply independent review to legal determination but defer to credibility findings | Urged relief under statutory standard; asked for de novo legal review | Independent review of legal issue applies, but appellate court accepts trial court’s credibility-based factual findings; affirmed |
Key Cases Cited
- People v. Patterson, 2 Cal.5th 885 (explains §1016.5 advisement does not bar §1473.7 relief)
- People v. Vivar, 11 Cal.5th 510 (articulates prejudice standard and totality-of-circumstances inquiry under §1473.7)
- People v. Bravo, 69 Cal.App.5th 1063 (lists factors courts may consider when assessing credibility and prejudice under §1473.7)
- In re Alvernaz, 2 Cal.4th 924 (postconviction self-serving statements insufficient without objective corroboration)
- People v. Tapia, 26 Cal.App.5th 942 (burden on moving party to prove prejudicial error by a preponderance)
- In re Hernandez, 33 Cal.App.5th 530 (courts should seek contemporaneous evidence to corroborate post hoc claims)
- People v. Mejia, 36 Cal.App.5th 859 (postconviction regret insufficient; require objective support)
- People v. Rodriguez, 68 Cal.App.5th 301 (statutory intent: custody for unrelated convictions does not bar §1473.7 motions)