People v. CarrilloPeople v. Carrillo
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First, appellant Francisco Carrillo‘s motion seeks to vacate a conviction that resulted from a trial, not a plea. Motions addressing a conviction or sentence after trial first became available on January 1, 2022, when an amendment expanded
Second, Carrillo‘s conviction and sentence qualified him for mandatory deportation only after he later admitted a probation violation and the additional jail time caused his total term of imprisonment to exceed one year, and thus became an aggravated felony. Under the Immigration and Nationality Act (INA;
The foregoing circumstances raise novel issues of statutory construction. First, to align the state statute with federal immigration law, we interpret the word “sentence” used in
Second, we address how a defendant may establish his or her error was “prejudicial” for purposes of
Third, on the question of the relief available under
Based on the foregoing interpretations, we conclude the 2021 amendment abrogated an earlier case concluding that a
Here, a preponderance of the evidence shows Carrillo did not “meaningfully understand … the … potential adverse immigration consequences of a conviction or sentence” at the time of his conviction. (
Carrillo‘s motion focused on how he defended against a “conviction” and did not contend he would have taken a different path in defending against (1) the terms of the sentence imposed in 2002, (2) the probation violation admitted in 2007, or (3) the additional period of incarceration imposed after he admitted the probation violation. Because this opinion clarifies how the 2021 amendment of
We therefore modify the order denying the
FACTS AND PROCEEDINGS
Personal Details
Carrillo was born in Mexico in September 1981. His March 2022 declaration in support of his
Further details about Carrillo‘s personal life are not provided by his March 2022 declaration.2 For instance, it does not describe what occurred between his birth and when he became a lawful permanent resident. We note that Carrillo‘s reply to the opposition to his
The Charges
In July 2001, about two months before his 20th birthday, a 17-count criminal complaint was filed in Madera County Superior Court alleging that on June 30, 2001, Carrillo attempted to murder eight persons. The complaint also alleged one count of an unlawful threat in violation of
After the attempted murder counts were eliminated, the district attorney filed an information charging Carrillo with unlawfully assaulting eight persons “with a .380 semiautomatic pistol” in violation of
The Conviction
Carrillo retained Eric Schweitzer as defense counsel and took the case to trial. On March 1, 2002, a jury found Carrillo not guilty of violating
On April 26, 2002, the trial court suspended the imposition of sentence, granted formal probation for a term of five years, and ordered Carrillo to serve 301 days in the county jail, with a credit for 301 days.3 The terms and conditions of probation include submitting to alcohol testing at the discretion of any peace officer, not possessing or using alcohol, and attending substance abuse counseling. The minute order from the hearing shows that Carrillo was present with his attorney, Schweitzer, and did not use an interpreter.
In April 2007, near the end of Carrillo‘s probation, a petition to revoke his probation was filed. It alleged that about 21 months earlier, on July 1, 2005, Carrillo violated
On May 29, 2007, Carrillo admitted the allegations in the petition. At the hearing, Carrillo was represented by Zachary Curtis of Ciummo and Associates. The minute order does not reflect the use of an interpreter. The trial court sentenced Carrillo to serve 90 days in jail, consecutive with his earlier sentence, and ordered the termination of probation upon his release from custody.
Immigration Proceedings
In August 2016, the Department of Homeland Security served Carrillo with a form No. I-862, “Notice to Appear,” in removal proceedings under the INA. The notice to appear stated that (1) Carrillo was residing at the Adelanto Detention Facility, (2) he was a native and citizen of Mexico, and (3) his March 2002 conviction of assault with a firearm in violation of
In March 2018, the Department of Homeland Security issued form No. I-261, “Additional Charges of Inadmissibility/Deportability,” in the removal proceedings. The form alleged Carrillo had been sentenced to serve 301 days in jail on the March 2002 conviction and, in May 2007, he was found in violation of probation and sentenced to an additional 90 days in jail. The form listed a Madera address for Carrillo.
A document filed in the removal proceedings with the form No. I-261 stated the additional allegations supported the charge of removability and also stated Carrillo was
Section 1473.7 Motion
On April 1, 2022, Carrillo filed a
Carrillo supported the motion with his March 2022 declaration, which stated (1) Schweitzer, his retained counsel, discussed a plan to attack and possibly reduce the eight
A declaration from Schweitzer also supported the motion. Schweitzer stated that their initial strategy focused on preventing a conviction for attempted murder, which succeeded when Carrillo was not held to answer on those counts. Schweitzer also stated that, before the trial, his conversations with Carrillo “focused on a strategy to present evidence that undermined the main charge.” Schweitzer did not recall ever discussing Carrillo‘s immigration status and, as a result, mitigation of immigration consequences was not part of his strategy. Accordingly, Schweitzer stated he did not recall conducting any research into the immigration consequences for Carrillo at that time. Schweitzer also addressed the lesser included offenses for which Carrillo was convicted, stating that he did not recall ever discussing or considering the impact a conviction for assault with a firearm might have on Carrillo‘s immigration status. Schweitzer‘s declaration also notes that, after he represented Carrillo in 2002, there were significant changes in the duties imposed on defense counsel with respect to the potential immigration consequences of a plea or conviction.
Further support for Carrillo‘s motion included copies of minute orders from his conviction, sentencing, and the subsequent admission of a probation violation. He also presented documents from his pending removal proceedings. The appellate record does not contain reporter‘s transcripts from the 2002 trial, the April 2002 sentencing hearing, or the May 2007 probation revocation proceeding.
The People‘s response to Carrillo‘s motion to vacate argued that nothing in the moving papers established by a preponderance of the evidence that Carrillo suffered a “prejudicial error damaging his ability to meaningfully understand, defend against, or knowingly accept the actual or potential consequences of taking his case to trial.” (Italics added.) The People also argued there was no reasonable probability that Carrillo “would have never taken the case to jury trial had he been advised of the adverse immigration consequences” and that the record suggested the opposite because, after achieving his primary objective of defeating the attempted murder charges, Carrillo still chose to take the case to trial nearly seven months later in an attempt to defeat the remaining, less serious charges. For these reasons, the response asked the court to deny the motion.
Carrillo‘s reply asserted that his declaration was corroborated by Schweitzer‘s declaration and together they provided sufficient evidence to establish he had not been advised of the adverse immigration consequences. His reply also asserted he demonstrated a reasonable probability that “he would have sought an immigration-neutral plea bargain instead of proceeding to trial” if he had known the risk of deportation associated with a guilty verdict. His reply does not address the likelihood of such a plea bargain being available.5
The foregoing describes the basis for Carrillo‘s motion to vacate and the issues and arguments presented to the trial court. To demonstrate the limited scope of the issues raised by the motion, here we set forth the grounds for relief under
Hearing and Decision
In May 2022, the trial court held a hearing on the motion. Carrillo‘s attorney appeared via Zoom and Carrillo was not present. No testimony or other evidence was presented at the hearing. After the matter was submitted, the court noted that (1) Carrillo had not alleged an immigration neutral plea would have been available; (2) nothing in the record suggested that a plea to an immigration neutral offense would have been acceptable to the prosecutor or to the court; (3) it could not identify an immigration neutral offense that could have been pleaded to under the facts of the case; and (4) it was apparent from the facts and circumstances of the case that the prosecution was not interested in a plea that would have been immigration neutral. The court stated: “I don‘t find that there was prejudice to Mr. Carrillo by proceeding to trial and his ultimate conviction” for violating
In July 2023, we granted Carrillo an extension of time to file his appellant‘s reply brief and, pursuant to
DISCUSSION
I. OVERVIEW OF SECTION 1473.7
In 2016, the Legislature considered the problems faced by defendants who “were unaware of the immigration consequences posed by a plea entered many years earlier” and were no longer in state custody. (Vivar, supra, 11 Cal.5th at p. 523.) The convictions of defendants who had completed their sentences and any probation or parole period were beyond the reach of habeas corpus. (Ibid.) The Legislature enacted
The versions of
In 2021, the Legislature amended the statute by replacing the phrase “plea of guilty or nolo contendere” with the broader phrase “conviction or sentence.” (Stats. 2021, ch. 420, § 1.) The amendment “expand[ed] the category of persons able to seek to vacate a conviction or sentence as legally invalid, whatever way that person was convicted or sentence[d], including a person who was found guilty after a trial.” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1259 (2021–2022 Reg. Sess.) June 22, 2021, p. 4; People v. Singh (2022) 81 Cal.App.5th 147, 152–153 [defendants whose convictions derive from a trial are eligible for relief under § 1473.7; amendment created
A defendant must satisfy three statutory requirements to be eligible to seek relief from a “legally invalid” conviction or sentence under
To establish that a conviction or sentence is legally invalid, a “defendant must first show that he did not meaningfully understand the immigration consequences of his [conviction or sentence]. Next, the defendant must show that his misunderstanding constituted prejudicial error.” (Espinoza, supra, 14 Cal.5th at p. 319.) The standard of proof is a preponderance of the evidence. (
When assessing whether a defendant has demonstrated these two requirements, appellate courts conduct an independent review. (Vivar, supra, 11 Cal.5th at p. 526.)
II. MISUNDERSTANDING OF POTENTIAL IMMIGRATION CONSEQUENCES
Applying the sequence of analysis adopted by our Supreme Court, we first consider whether Carrillo has proven that he did not meaningfully understand the actual or potential adverse immigration consequences of the conviction or sentence. (
A. Immigration Consequences of the Conviction
The INA organizes criminal offenses into various categories and specifies the immigration consequences that attach to each category. Here, we examine three classifications of offenses—aggravated felonies, crimes involving moral turpitude, and certain firearm offenses. The Department of Homeland Security‘s notice to appear, as amended, alleges the definition of an aggravated felony is satisfied by Carrillo‘s March 2002 conviction for assault with a firearm in violation of
1. Aggravated Felony
Assault with a firearm under
A noncitizen convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory deportation and permanent exclusion from the United States. (
2. Crime Involving Moral Turpitude
Crimes involving moral turpitude is a general category that covers a wide variety of crimes. (Barton v. Barr (2020) 590 U.S. ___ [140 S.Ct. 1442, 1448].) The moral turpitude component is met when the offense involves ” ‘either fraud or base, vile, and depraved conduct that shocks the public conscience.’ ” (Jauregui-Cardenas v. Barr (9th Cir. 2020) 946 F.3d 1116, 1120.) The Ninth Circuit has concluded the Board of Immigration Appeals correctly determined a conviction under
A crime involving moral turpitude renders a noncitizen deportable if the crime was “committed within five years … after the date of admission” and is one “for which a sentence of one year or longer may be imposed.” (
Besides deportation, a noncitizen convicted of a crime involving moral turpitude may not be admitted into the United States. (
3. Certain firearms offenses
Commission of certain firearm offenses, including a conviction “under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying … a firearm … in violation of any law,” renders a noncitizen deportable. (
The jury found true the special allegation in all six counts that Carrillo “used a firearm within the meaning of
B. Defendant‘s Misunderstanding
We next consider whether Carrillo meaningfully understood the potential adverse immigration consequences, which included mandatory deportation. The focus of this inquiry is the defendant‘s own error. (People v. Mejia (2019) 36 Cal.App.5th 859, 871.) In other words, the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances. (Ibid.; see Alatorre, supra, 70 Cal.App.5th at p. 769 [“the ‘error’ is that the petitioner subjectively misunderstood the immigration consequences“; no need to establish the mistake was caused by a third party].)
The evidence Carrillo presented to prove he lacked a meaningful understanding of the potential immigration consequences include his declaration, Schweitzer‘s declaration, and documents from the proceedings in the underlying criminal case. Carrillo is the only one with direct access to his state of mind and his declaration asserted he “did not meaningfully understand the immigration consequences of being convicted at trial” and, more specifically, that he did not “meaningfully understand that these convictions would have adverse consequences on my Legal Permanent Resident status.” To support this assertion about a lack of understanding, Carrillo stated that when he discussed a plan for attacking the charges with his attorney, Schweitzer did not ask about his immigration status and did not explain the adverse effects of a guilty verdict on that status. Addressing a broader timeframe, Carrillo stated that, during the time Schweitzer
A defendant‘s assertion as to his or her state of mind is not accepted at face value by courts evaluating a
Exercising our independent judgment, we find Schweitzer‘s declaration is credible. The fact that his assertions are qualified by what he can recall is reasonable because the absence of immigration advice occurred two decades ago. Furthermore, Schweitzer‘s inability to recall any discussion of immigration consequences fits with then applicable law. In 2002, there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. (See Chaidez v. United States (2013) 568 U.S. 342, 353.) Rather, most courts had determined that no such duty existed. (Ibid.) Carrillo‘s trial and his sentencing occurred well before the United States Supreme Court decided Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) and before the Legislature enacted
Additional factors that support Carrillo‘s assertions about his lack of understanding of immigration consequences are his age and the complexity of federal immigration law. When he was charged in July 2001, he was 19 years old. At the time of the trial and sentencing, he was 20 years old. Both the United States and California Supreme Courts have recognized that federal immigration law can be complex and there are numerous situations where the consequences of a conviction are unclear. (Padilla, supra, 559 U.S. at p. 369; People v. Patterson (2017) 2 Cal.5th 885, 898.) Thus, one court referred to the “bewildering interplay between state criminal proceedings and federal immigration enforcement—an area of the law that has ‘aptly been called a labyrinth that only a lawyer could navigate.’ ” (Alatorre, supra, 70 Cal.App.5th at p. 765.) Based on the complexity of immigration law, we find it highly unlikely that the 20-year-old Carrillo would have understood that a conviction for assault with a firearm (whether or not a semiautomatic) and a term of imprisonment of at least 365 days qualified as an aggravated felony and would subject him to mandatory deportation.
Our independent review of the totality of the circumstances relevant to Carrillo‘s subjective understanding of the immigration consequence of his conviction and sentence also takes into account the absence of evidence supporting the inference that he understood those consequences. First, the People presented no evidence to the trial court showing Carrillo understood the immigration consequences and, instead, simply argued Carrillo‘s evidence was insufficient to carry his burden of proof. Second, the Attorney
Based on the declarations of Carrillo and Schweitzer, the surrounding circumstances, and the absence of any evidence to the contrary, we find that Carrillo has proven by a preponderance of the evidence that he did not understand (meaningfully or otherwise) the potential immigration consequences of a conviction and sentence at the time he decided to go to trial, at the time of his April 2002 sentencing, or anytime in between those two events. More specifically, we find that he did not understand that (1) a sentence to a term of imprisonment of a year or more would render his conviction an aggravated felony and subject him to mandatory deportation and (2) the relevant term of imprisonment would include any additional incarceration subsequently imposed for a probation violation.
The declarations of Carrillo and Schweitzer did not address Carrillo‘s understanding of the potential immigration consequences after Schweitzer‘s representation of Carrillo concluded. Reflecting the evidence presented, Carrillo‘s motion did not argue that he lacked an understanding of the immigration consequences in 2005 when he was arrested for driving under the influence or in 2007 when the probation revocation proceedings were conducted. Consequently, we make no findings, one way or the other, regarding Carrillo‘s understanding of immigration consequences at those times.
The other showing Carrillo must make to obtain relief under section 1473.7 is “that his misunderstanding constituted prejudicial error.” (Espinoza, supra, 14 Cal.5th at p. 319.) The statute itself does not define what “prejudicial” means. Our Supreme Court resolved its meaning in the context of a defendant attempting to withdraw a plea by stating the defendant must demonstrate “a reasonable probability that [he or she] would have rejected the plea if [he or she] had correctly understood its actual or potential immigration consequences.” (Vivar, supra, 11 Cal.5th at p. 529; Espinoza, supra, 14 Cal.5th at p. 316.) A decision to reject a plea leaves the defendant with two options—go to trial or negotiate a plea with no immigration consequences. (Vivar, supra, at p. 529.) Thus, where a defendant claims he or she did not understand the immigration consequences of a plea, the moving papers usually attempt to show prejudice by demonstrating one or both of these options would have been pursued if the defendant had understood the immigration consequences. (See People v. Rodriguez, supra, 68 Cal.App.5th at pp. 311–312 [prejudice established if the defendant would have risked going to trial even if only to figuratively throw a “Hail Mary“].)
An issue presented by the circumstances of this case, which does not involve a plea, is how prejudice is established (1) when a defendant goes to trial, loses, and is sentenced or (2) when a defendant admits a probation violation and receives an additional period of incarceration. Our Supreme Court has not addressed how to establish prejudice in these situations.
Carrillo‘s motion focused on establishing that a prejudicial error affected his decision to go to trial and the defense he presented against the charges. He did not attempt to establish a prejudicial error damaged his ability to meaningfully understand and defend against the potential immigration consequences of the probation violation or the additional incarceration imposed for the probation violation. Based on the scope of the issues addressed in Carrillo‘s moving papers, here we address how a defendant may
In Vivar, the court discussed prejudice by stating: “The focus on ‘what the defendant would have done, not whether the defendant‘s decision would have led to a more favorable result’ derived from the fact that a defendant ’ “may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges.” ’ ” (Vivar, supra, 11 Cal.5th at pp. 528–529.) Based on the references to what the defendant would have done and to the defendant‘s calculations, we conclude a defendant can establish prejudice for purposes of section 1473.7, subdivision (a)(1) by showing a reasonable probability7 he or she would have done something differently—that is, would have taken another “path“—that may have avoided adverse immigration consequences. (Vivar, supra, at p. 529.)
To apply this general principle to the facts of this case, we examine what decisions Carrillo could have made differently in 2002 to avoid the adverse immigration consequences of his conviction or the combination of his conviction and sentence. There appear to be at least three decisions Carrillo made during the 2002 proceedings that are in the causal chain of events that lead to the Department of Homeland Security initiating removal proceedings based on his conviction being an aggravated felony.
A. The 2002 Conviction
The decision to go to trial and the decision about how to defend against the charges were made before the conviction and, thus, a prejudicial error in making those decisions would provide a basis for vacating the conviction, which would necessarily vacate the sentence. (
First, Carrillo‘s papers do not identify what the additional defenses might have been. Therefore, we cannot find there is a reasonable probability that Carrillo would have pursued additional defenses and thereby avoided the potential adverse immigration consequences of a conviction.
Second, there is no evidence in the record that an immigration safe plea, if explored by Schweitzer, would have been offered by the prosecution or accepted by the
In sum, we conclude Carrillo has not demonstrated his lack of understanding of immigration consequences prejudiced his decision to go to trial or the presentation of his defense.
Next, we consider whether Carrillo has demonstrated his decisions relating to his 2002 sentencing hearing were prejudiced by his lack of understanding of immigration consequences. Carrillo‘s moving papers did not explicitly argue his approach to the sentencing hearing was prejudiced by his lack of understanding of the potential immigration consequences. However, in response to questions in our briefing order issued under
The idea of prejudice underlying this argument is that if the jail time imposed in 2002 had been less than 275 days, then his subsequent incarceration of 90 days for the probation violation would not have transformed Carrillo‘s conviction into an aggravated felony because the total “term of imprisonment” would have been less than one year. (
To summarize, after conducting an independent review of the totality of the circumstances set forth in the cold record, we find Carrillo has proven that, at the time of the 2002 proceedings, he did not understand the potential immigration consequences of a conviction or the sentences possible after the conviction. However, we find that he has not demonstrated a reasonable probability that his misunderstanding prejudiced his “ability to meaningfully understand, defend against, or knowingly accept the … immigration consequence of a conviction” (
The final topic we address is whether the trial court‘s order should be modified to be without prejudice to Carrillo pursuing theories of prejudicial error that (1) were not raised in his original motion and (2) have not been explicitly recognized in a published judicial decision explaining the scope of the 2021 amendment of section 1473.7, subdivision (a)(1). This topic was raised in our briefing order, which asked the parties whether Carrillo should be allowed to file a new or amended motion asserting a prejudicial error based on his admission of the probation violation, his failure to defend against a term of incarceration of more than 63 days for that violation, or both. The Attorney General answered no, and Carrillo answered yes.
A. Scope of the 2021 Amendment
Our analysis of this issue begins with whether there are potentially meritorious theories of prejudicial error that were not raised in Carrillo‘s original motion. If such theories are contrary to law, there would be no reason to modify the trial court‘s order to be a denial without prejudice. As described earlier, the claim that Carrillo‘s misunderstanding of immigration consequences damaged his ability to defend against the sentence imposed at the April 2002 sentencing hearing is a legally cognizable theory of prejudice. Here, we consider whether the requisite prejudicial error may have occurred during a probation revocation proceeding.
This inquiry raises questions of statutory interpretation about the scope of section 1473.7, subdivision (a)(1) after the 2021 amendment. The particular circumstances of Carrillo‘s criminal case raise questions about how section 1473.7, subdivision (a)(1) applies when a noncitizen violates probation, receives additional jail time, and becomes deportable due to the additional jail time.
The principles of statutory interpretation are well established, and the parties have not disputed what principles apply. Accordingly, we provide only a brief overview of those principles. The process of statutory construction begins with the words of the
1. A “Sentence” Includes Additional Time for a Probation Violation
The first question of statutory interpretation we address is whether section 1473.7, subdivision (a)(1)‘s phrase “potential adverse immigration consequences of a conviction or sentence” should be construed to include the possibility of deportation if a future probation violation results in additional prison or jail time that causes the offense to be an aggravated felony under the INA. Both parties answered this question yes. The Attorney General‘s supplemental brief explained:
“Put simply, if the additional time in custody is what would have created the grounds for deportation, the defendant should understand those consequences before they decide whether to admit the probation violation or proceed to a hearing. This would facilitate the defendant‘s ability to ‘meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences’ of the violation of probation finding and, in turn, its effect on the defendant‘s ‘sentence.’ (
§ 1473.7, subd. (a)(1) .)”
The Legislature has not explicitly resolved whether section 1473.7, subdivision (a)(1) applies to the admission of a probation violation or to the additional time imposed for a probation violation. In the absence of a specific provision, we consider whether the statutory phrase “conviction or sentence” encompasses the admission of a probation violation, the additional jail time imposed for the violation, or both.
There is, however, a case decided before the statute‘s 2021 amendment that involved a motion under section 1473.7, subdivision (a)(1) to vacate a revocation of probation. (Cruz-Lopez, supra, 27 Cal.App.5th 212.) In that case, the trial court denied the motion and the First District affirmed. (Id., at p. 214.) The situation presented in Cruz-Lopez has similarities to the present case because “the sentence imposed due to appellant‘s probation violation made the previous crime an aggravated felony, rendering a permanent resident removable.” (Id., at p. 218.) The appellant‘s motion asserted that “he did not understand the immigration consequences of his probation violation admission.” (Id. at p. 221.) The First District concluded the admission of a probation violation was not covered by section 1473.7 because the statutory text referred to the consequences of a guilty plea or no contest plea and that text was not ambiguous. (Cruz-Lopez, supra, at p. 221.) Thus, the court decided admitting a probation violation was not a guilty plea that could be withdrawn based on a misunderstanding of the immigration consequences. (Ibid.) One practice guide cites Cruz-Lopez for the principle that section 1473.7 “does not apply where the defendant contends he did not understand the immigration consequences of an admission to a violation of probation.” (2 Couzens, et al., Sentencing California Crimes (The Rutter Group 2023) § 23:53, p. 350.)
We conclude Cruz-Lopez‘s interpretation of the scope of section 1473.7, subdivision (a)(1) is out of date because it was based on the phrase “a plea of guilty or
Having considered prior case law, we return to the current text of section 1473.7, subdivision (a)(1). (See Mejia v. Reed, supra, 31 Cal.4th at p. 663 [statutory construction begins with the words of the statute itself].) For purposes of this appeal, we assume that the word “sentence” in section 1473.7, subdivision (a)(1) is ambiguous. As a result, we consider which interpretation best effectuates the statute‘s purpose. (See People v. Johnson, supra, 57 Cal.4th at p. 260.) Section 1473.7‘s purpose was to “offer relief to those persons who suffered ‘prejudicial error’ but are ‘no longer imprisoned or restrained’ and for that reason alone are unable to pursue relief on habeas corpus.” (Vivar, supra, 11 Cal.5th at p. 525.) The Legislature has declared that section 1473.7 “shall be interpreted in the interests of justice and consistent with the findings and declarations made in
If the word “sentence” were interpreted to exclude the additional incarceration imposed for a probation violation, section 1473.7‘s purpose of making relief from adverse immigration consequences “broadly available” (Vivar, supra, 11 Cal.5th at p. 525) would be thwarted. We agree with the assessment in the Attorney General‘s supplemental brief that such an interpretation would result in a gap in the law. The gap would arise because the INA‘s definition of “aggravated felony” includes “a crime of
Based on the way “term of imprisonment” is interpreted, if an additional period of incarceration imposed for a probation violation is excluded from the “sentence” addressed in section 1473.7, subdivision (a)(1), a class of defendants whose adverse immigration consequences are triggered by that additional period would fall outside section 1473.7, creating a gap in the relief provided by the statute. We have located nothing in the legislative history of the 2021 amendment of section 1473.7 that reasonably supports the inference that the Legislature intended to withhold relief from defendants in this class. Instead, it appears they would be “deserving“—as that term was used in Vivar, supra, 11 Cal.5th at page 525—if they meet the eligibility requirements discussed earlier and can prove they suffered a prejudicial error.
Therefore, to promote the purpose of making relief broadly available to deserving defendants, we join the parties’ interpretation of the word “sentence” and conclude it encompass all parts of the “term of imprisonment” relevant for determining the immigration consequences of an offense. Under this interpretation, the word “sentence” in section 1473.7, subdivision (a)(1) includes the additional incarceration imposed for a probation violation. Thus, a defendant‘s motion may establish the requisite misunderstanding by proving he or she misunderstood the “adverse immigration
2. Prejudice and Probation Violations
A second, closely related question of statutory interpretation involves how a defendant establishes the requisite prejudice from his or her misunderstanding of the potential immigration consequences of the probation revocation proceeding. Should section 1473.7, subdivision (a)(1) be interpreted to allow a noncitizen to establish prejudice by showing a reasonable probability that, had he or she understood the additional incarceration imposed for a probation violation could result in the underlying conviction becoming an aggravated felony for purposes of the INA, the noncitizen (1) would not have admitted a probation violation or (2) would have defended against the amount of time imposed for the violation and obtained an immigration safe additional period of incarceration? Both parties answered this question yes. We agree.
In part III. of this opinion, we concluded a defendant could establish prejudice for purposes of section 1473.7, subdivision (a)(1) by showing a reasonable probability that he or she would have done something differently—that is, would have taken another “path“—that may have avoided adverse immigration consequences. (Vivar, supra, 11 Cal.5th at p. 529.) Applying that interpretation to probation violations, we conclude the different paths that can be shown to establish prejudice include (1) denying a probation violation instead of admitting it and (2) presenting different arguments and evidence that would have had a reasonable probability of reducing the additional period of incarceration to an immigration-safe amount. Both decisions are links in the causal chain of events that resulted in the “sentence.” This interpretation of the prejudice requirement avoids gaps in section 1473.7, subdivision (a)(1)‘s coverage that would thwart the statute‘s purpose.
Another question of statutory interpretation involves the relief available under section 1473.7, subdivision (a)(1). The statute authorizes “a motion to vacate a conviction or sentence.” (
To summarize, the relief available under section 1473.7, subdivision (a)(1) includes an order vacating (1) the initial conviction, (2) the sentence imposed for the
B. Other Grounds for Deportation
The Attorney General‘s supplemental brief states that it is not appropriate to modify the denial of Carrillo‘s motion to be without prejudice to a new motion raising grounds not addressed in the initial motion. The Attorney General contends, in effect, that even if Carrillo is able to vacate all or part of the sentence imposed, he is still subject to mandatory deportation because the assault conviction still qualifies as a crime of moral turpitude and as a firearm offense. In short, the Attorney General contends any misunderstanding by Carrillo affecting his defense against the term of imprisonment cannot be a prejudicial error because changing the sentence will not protect him from deportation on alternate grounds. The Attorney General also explicitly acknowledges that, thus far, the alternate grounds for deportation have not been asserted by the federal government in Carrillo‘s removal proceedings.
1. Crime Involving Moral Turpitude
Here we consider whether it is pointless for Carrillo to pursue an outcome that alters his term of imprisonment because, regardless of the term of imprisonment order, the offense is a crime involving moral turpitude for which deportation is mandatory.
The notice to appear in removal proceedings issued by the Department of Homeland Security to Carrillo in August 2016 stated: “You were admitted to the United States at San Francisco, California on December 2, 1999 as a lawful permanent resident.” The Attorney General relies on this date to establish Carrillo committed the assaults within five years of admission and, therefore, Carrillo is deportable under
If Carrillo lawfully entered the United States before June 30, 1996, his crime would have been committed more than five years after his date of admission. The fact that Carrillo did not use an interpreter in the 2002 criminal proceedings provides some support for the inference that he entered the United States before obtaining lawful
Consequently, the appellate record does not establish—one way or the other—whether Carrillo committed the assaults within five years after his “date of admission” into the United States. (
2. Certain Firearm Offenses
Carrillo‘s conviction of assault with a firearm appears to qualify as a type of firearm offense covered by
Under these circumstances, we cannot presume that if Carrillo successfully reduces his term of imprisonment ordered to less than one year, the Department of Homeland Security will amend its allegations and seek removal based on his commission of a deportable firearms offense. Therefore, we conclude this possible alternate ground
C. Further Pursuit of Unraised Grounds
The last argument presented in the Attorney General‘s supplemental brief to support its view that the order denying the motion should be affirmed without modification is that, although Carrillo did not pursue all the grounds for relief available under section 1473.7, subdivision (a)(1), the circumstances of this case do not justify allowing him to pursue those grounds in a new motion. The brief asserts (1) the amendment expanding section 1473.7, subdivision (a)(1) became effective January 1, 2022, which was three months before Carrillo filed his motion; (2) Carrillo has been aware since at least March 2018 that the additional time imposed for the probation violation converted his conviction into an aggravated felony, which is the basis for removal asserted in his immigration case; and (3) he had the burden of proving his entitlement to relief under section 1473.7, subdivision (a)(1) and failed. Based on these factors, the Attorney General contends the trial court‘s denial of Carrillo‘s motion should be affirmed with prejudice. We disagree.
When Carrillo filed and argued his motion, no published judicial decision had described how the newly enacted statutory text applied to a conviction that became an aggravated felony only after a probation violation was admitted and the time imposed for that violation caused the total term of imprisonment to exceed one year. Furthermore, no published judicial decision had explained Cruz-Lopez‘s determination that section 1473.7 could not be used to challenge the admission of a probation violation was abrogated by the 2021 amendment. (See Cruz-Lopez, supra, 27 Cal.App.5th at p. 221.) Based on these circumstances, the statute‘s overall purpose, and the 2021 amendment‘s ameliorative purpose, we conclude it is appropriate to allow Carrillo an opportunity to file a new motion addressing grounds (1) that were not presented in his original motion
Furthermore, collateral estoppel does not bar the presentation of those issues because a new motion would not involve the relitigation of an issue actually litigated and decided when Carrillo‘s first motion was denied. (See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [five requirements for application of collateral estoppel, a doctrine that “precludes relitigation of issues argued and decided in prior proceedings“].) The new issues include whether his 2002 lack of understanding of immigration consequences was prejudicial because, had he understood, he would have been able to defend against those consequences by arguing for and obtaining a sentence that was more favorable from the immigration perspective; whether he lacked a meaningful understanding of potential immigration consequences at the time of the probation revocation proceedings; and whether any misunderstanding at that time resulted in a prejudicial error involving his admission of the probation violation or his defense against the time imposed for the probation violation.
Accordingly, we will modify the trial court‘s denial of Carrillo‘s motion to be without prejudice pursuing a new motion limited to grounds not raised in his initial motion.11
The May 2022 order denying the motion to vacate under section 1473.7, subdivision (a)(1) is modified so that the denial is without prejudice to the filing of a new motion asserting grounds not specifically raised in the initial motion. As modified, the order is affirmed.
FRANSON, J.
WE CONCUR:
LEVY, Acting P. J.
MEEHAN, J.