In re Hernandez

Filed 7/13/20 In re Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re ANGELA HERNANDEZ
On Habeas Corpus.
F076752
(Super. Ct. Nos. HC15330A &
BF150639A)
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Steven M.
Katz, Judge.
Law Office of Jacob M. Weisberg and Jacob M. Weisberg for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Smith, J. and DeSantos, J.

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2.
Angela Hernandez (appellant) appeals from the denial of her application to vacate
a conviction due to inadequate advice about immigration consequences. We affirm.1
1 As will be described, post, appellant sought relief in the trial court by means of a
petition for writ of habeas corpus. In a noncapital case, a habeas petitioner cannot appeal
from an order denying relief, but rather must file a new petition in a higher court. (Pen.
Code, § 1506; In re Reed (1983) 33 Cal.3d 914, 918, fn. 2, overruled on another ground
in In re Alva (2004) 33 Cal.4th 254, 264; In re Hochberg (1970) 2 Cal.3d 870, 875,
disapproved on another ground in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3; cf.
Pen. Code, § 1509.1; Briggs v. Brown (2017) 3 Cal.5th 808, 825.) Appellant did not do
so, but instead filed a notice of appeal in a timely manner following the trial court’s
ruling.
When apparently informed by a clerk of the Kern County Superior Court that the
notice of appeal was improper since the trial court denied the petition for writ of habeas
corpus, counsel for appellant (who also represents her on appeal) explained that the case
essentially converted from a habeas action to a motion to vacate appellant’s conviction
pursuant to Penal Code section 1473.7, and that the notice of appeal was filed with
respect to the trial court’s denial of the motion to vacate pursuant to that statute. (Further
statutory references are to the Penal Code unless otherwise stated.) An order granting or
denying relief under section 1473.7 is appealable, pursuant to section 1237,
subdivision (b), as an order after judgment affecting a party’s substantial rights.
(§ 1473.7, subd. (f).) An appellant is not required to obtain a certificate of probable cause
as a prerequisite to the appeal. (See People v. Arriaga (2014) 58 Cal.4th 950, 960.)
Appellant was on probation at the time she first filed her habeas petition. At that
time, habeas was the proper means by which to raise her claims. (See § 1473; In re
Hernandez (2019) 33 Cal.App.5th 530, 542.) Since appellant was still considered to be
legally under restraint, section 1473.7 was not applicable to her. (People v. Cruz-Lopez
(2018) 27 Cal.App.5th 212, 221.) By the time the trial court incorporated section 1473.7
into the habeas proceedings, however, it appears appellant was no longer on probation.
This in turn appears to have led to a confused and confusing merger of the writ and
statutory proceedings, although it did not deprive the trial court of jurisdiction over the
habeas proceedings. (In re Hernandez, supra, 33 Cal.App.5th at p. 542.)
Whether cast as being raised in a new habeas proceeding in this court or after
denial of a statutory motion to vacate, appellant’s claims are reviewable by us on the
merits. The Attorney General does not contend otherwise, nor does he challenge the
manner in which appellant now presents those claims. Accordingly, we allow the appeal
to proceed as such while maintaining the habeas captioning of our opinion.

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3.
FACTS AND PROCEDURAL HISTORY
On September 9, 2013, appellant was charged by complaint with sale or
transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); count 1) and
possession of marijuana for sale (id., § 11359; count 2). According to the probation
officer’s report, which in turn summarized law enforcement reports, a confidential
informant told Kern County Sheriff’s deputies that appellant wanted to sell to the
informant 105 pounds of marijuana at $900 per pound, and that they had agreed to meet
at a store in Delano on August 16, 2013. On that date, law enforcement officers were at
the location and, when appellant arrived, they took her into custody. A search of the
vehicle in which appellant was the sole occupant revealed five black trash bags
containing approximately 105 pounds of processed marijuana. Appellant admitted
having approximately 100 pounds of marijuana in the vehicle, and said she would be
making $2,000 for it. She said she would be receiving the money for delivering the
marijuana, not for selling it. She said the man who told her to deliver it placed the
marijuana in her vehicle in a grape vineyard. She admitted being present when the
marijuana was loaded into her vehicle, but denied it belonged to her. She said she had
her own marijuana — approximately 49 plants and about a pound of processed marijuana
— at her residence, and that she had a marijuana recommendation card.
On October 31, 2013, pursuant to section 859a, appellant pled guilty or nolo
contendere to both counts of the complaint on condition that she serve 180 days in
custody.2 As part of the change of plea process, appellant initialed the applicable
paragraphs of the “Felony Advisement of Rights, Waiver and Plea Form,” including the
following provision:
2 The minutes of the hearing reflect appellant changed her plea, with respect to both
counts, to nolo contendere and was then found guilty by the court. The reporter’s
transcript of the change of plea hearing shows appellant pled guilty to both counts. The
discrepancy is immaterial for purposes of this appeal.

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4.
“2. ALIEN STATUS: I understand that if I am not a Citizen of the United
States, my guilty or no contest plea will result in my deportation, exclusion
from admission to the United States, and denial of naturalization under the
laws of the United States. Deportation is mandatory for some offenses.
I have fully discussed this matter with my attorney and understand the
serious immigration consequences of my plea.” (Boldface in original.)
Appellant signed a declaration under penalty of perjury that she had read,
understood, and initialed each item, and that everything on the form was true and correct.
Appellant’s attorney, J.M. Irigoyen, signed a statement that he had reviewed the form
with his client and explained the direct consequences that would result from a plea of
guilty or no contest, including “any possible immigration consequences that may result
from this plea,” and that he was satisfied his client understood “these things.” The form
also contained a statement signed by an Spanish-language interpreter, attesting that the
interpreter had been sworn or had a written oath on file, and certifying that the interpreter
translated the entire form to appellant; appellant stated to the interpreter that she
understood the contents of the form; and appellant initialed and signed the form in the
interpreter’s presence.
At the change of plea hearing, appellant was assisted by a certified Spanish
language interpreter. In response to the trial court’s inquiry, appellant acknowledged that
she signed, dated, and initialed the form; she understood everything on that form; and she
did not have any questions about what could happen if she entered a plea.
On January 3, 2014, imposition of sentence was suspended as to count 1, and
appellant was placed on probation for three years on various terms and conditions,
including that she serve 180 days in jail. Sentence on count 2 was stayed pursuant to
section 654.
On December 6, 2016, appellant filed a petition for writ of habeas corpus, alleging
her conviction should be vacated, and she should be allowed to withdraw her plea,
because she received ineffective assistance of counsel based on defense counsel’s failure
to advise her of the adverse immigration consequences that could result from her plea.

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5.
Appellant, a citizen of Mexico and lawful permanent resident of the United States,
asserted she was now facing removal (deportation) as a result of her plea, and that she
would have exercised her right to a jury trial had she been aware of the immigration
consequences at the time she pled nolo contendere.3
On January 26, 2017, appellant’s petition was denied. The trial court ruled it had
no jurisdiction to adjudicate the petition, since appellant was no longer in actual or
constructive custody; hence, under section 1474, there was no habeas corpus remedy as a
matter of law.
Appellant moved for reconsideration, in part on the ground the court failed to take
into account section 1473.7, which took effect on January 1, 2017, and permitted a person
no longer in custody to prosecute a motion to vacate a conviction. In response, the trial
court reopened the habeas proceeding.
On September 27, 2017, an evidentiary hearing was held. The court took judicial
notice of its file in appellant’s underlying criminal case. It also took judicial notice of
federal documents seeking appellant’s deportation.4
At the hearing, appellant testified that she was currently 59 years old, came to the
United States when she was 19 years old, and became a lawful permanent resident in
1985. She was married; she had five children in the United States, three of whom were
lawful permanent residents and two of whom were citizens. She had 14 grandchildren,
and took care of two of them three times a week. Her mother was deceased, but her
father resided in Fresno.
3 We use the terms “deportation” and “removal” interchangeably.
4 The prosecutor objected, on hearsay grounds, to declarations submitted by
appellant and her current attorney. The court agreed the declarations were hearsay and
stated it would not consider the one it read before becoming aware of the People’s
objection.

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6.
Following her arrest in 2013, appellant retained Attorney J.M. Irigoyen, who
passed away prior to the current proceedings. During the course of his representation,
she advised him that she was a lawful permanent resident. She pled guilty to the charges
because Irigoyen told her that she had to. He did not tell her that if she pled guilty, she
would almost certainly be deported. Had he told her that, she would have gone to trial,
because she did not want to be sent to Mexico. Appellant acknowledged her signature
and initials were on the “Felony Advisement of Rights, Waiver and Plea Form,” but she
did not recall going over it with Irigoyen before she entered her plea, and the paragraph
about alien status was never read to her. She was never told she could be deported. The
document was never read to her. Irigoyen told her to sign and initial it. She did not
recall having an interpreter read the document to her, or the court asking if she
understood everything on the form. She never thought there was anything on the form
concerning deportation. Irigoyen, who did not speak Spanish, never brought an
interpreter to talk to her. The only time she talked to an interpreter was in court, never
outside of court.
On October 16, 2017, the trial court denied the petition for writ of habeas corpus.
In its written ruling, the court noted it was unable to hear testimony from Irigoyen;
however, in opposition to appellant’s testimony, the court had a record of what Irigoyen
did by virtue of the plea form, change of plea transcript, and the court file. The court
summarized those documents, and found the plea form and plea colloquy indicated
Irigoyen properly advised appellant regarding the immigration consequences of entering
a plea. The court also observed that at the time of sentencing, appellant was advised she
could not reenter the United States without proper authorization, and she signed her terms
and conditions of probation, which also contained such an advisement. The court found
the foregoing “belie[d]” appellant’s claim that she entered her plea without proper
immigration advice. The court concluded appellant’s claims were post hoc assertions
that were contradicted by the record of the plea.

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7.
Appellant moved for reconsideration or modification of the order on the grounds
the trial court failed to adjudicate her motion to vacate her conviction pursuant to section
1473.7, and did not address whether she had the ability meaningfully to understand,
defend against, or knowingly accept the actual potential immigration consequences of her
plea. She also argued the court failed to rely on applicable state and federal law.
On November 6, 2017, the court denied the motion for reconsideration. It
concluded the evidence before it failed to show the conviction was legally invalid within
the provisions of section 1473.7, subdivision (a)(1). Accordingly, it also denied
appellant’s application to vacate the conviction pursuant to that statute.
DISCUSSION
California has long required that when a defendant in a criminal case is
considering pleading guilty or no contest, he or she must be advised of the potential
immigration consequences of such a plea. Thus, section 1016.5, subdivision (a) has
provided, since its enactment in 1977: “Prior to acceptance of a plea of guilty or nolo
contendere to any offense punishable as a crime under state law, . . . the court shall
administer the following advisement on the record to the defendant: [¶] 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.” If the
advisement is not given and the defendant shows conviction of the offense to which he or
she pled may have one of the specified consequences, the court, on defendant’s motion, is
required to vacate the judgment and permit the defendant to withdraw the plea of guilty
or no contest and enter a plea of not guilty. (Id., subd. (b).)
Because the statutory advisement only tells a defendant a conviction may have
specified immigration consequences, the giving of the advisement does not bar a
noncitizen defendant from moving to withdraw a plea based on ignorance of his or her
specific immigration consequences. (People v. Patterson (2017) 2 Cal.5th 885, 889; see

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8.
§ 1018.) As the California Supreme Court has observed: “[F]or many noncitizen
defendants deciding whether to plead guilty, the ‘actual risk’ that the conviction will lead
to deportation — as opposed to general awareness that a criminal conviction ‘may’ have
adverse immigration consequences — will undoubtedly be a ‘material matter[]’ that may
factor heavily in the decision whether to plead guilty. [Citations.]” (Patterson, supra, at
p. 896.) Moreover, “receipt of the section 1016.5 advisement does not bar a criminal
defendant from challenging his conviction on the ground that his counsel was ineffective
in failing to adequately advise him about the immigration consequences of entering a
guilty plea. [Citation.]” (Id. at p. 896.)
In general terms, to succeed on a claim of ineffective assistance of counsel, a
defendant must show that (1) counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and (2) a reasonable probability
exists that but for counsel’s errors, the result of the proceeding would have been different.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
The United States Supreme Court addressed the intersection between advisement
of immigration consequences and the effective assistance of counsel in criminal
prosecutions in Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). The high court noted
that changes in federal immigration law had made deportation virtually inevitable for
noncitizens convicted of particular classes of criminal offenses; hence, “[t]he importance
of accurate legal advice for noncitizens accused of crimes has never been more
important,” as removal is an integral part of the penalty that may be imposed on
noncitizen defendants who plead guilty to specified crimes. (Id. at p. 364.)
Addressing Strickland’s first prong, the court concluded: “The weight of
prevailing professional norms supports the view that counsel must advise her client
regarding the risk of deportation. [Citations.]” (Padilla, supra, 559 U.S. at p. 367.) The
court acknowledged immigration law can be complex. Accordingly, it determined,

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9.
“When the law is not succinct and straightforward . . . , a criminal defense attorney need
do no more than advise a noncitizen client that pending criminal charges may carry a risk
of adverse immigration consequences. But when the deportation consequence is truly
clear, as it [is in cases involving all controlled substances convictions, for which removal
is presumptively mandatory except for the most trivial marijuana possession offenses],
the duty to give correct advice is equally clear.” (Id. at p. 369, fn. omitted.) The high
court did not decide whether Padilla had shown prejudice under Strickland’s second
prong, as required to entitle him to relief on his claim. (Padilla, supra, at p. 369.) It
noted, however, that “to obtain relief on this type of claim, a petitioner must convince the
court that a decision to reject the plea bargain would have been rational under the
circumstances. [Citation.]” (Id. at p. 372.)
Padilla was decided before appellant pled guilty in the present case to what clearly
was a presumptively deportable offense. (See, e.g., 8 U.S.C. § 1227(a)(2)(B)(i).)
Subsequently, effective January 1, 2016, the Legislature codified Padilla and related
California case law. (§ 1016.2, Stats. 2015, ch. 705, § 1.) At the same time (Stats. 2015,
ch. 705, § 2), it mandated that defense counsel provide “accurate and affirmative advice”
about the immigration consequences of a proposed disposition and defend against those
consequences (§ 1016.3, subd. (a)), and that the prosecution consider avoidance of
immigration consequences in the plea negotiation process (id., subd. (b)). The
Legislature made it clear, however, that the new requirements did not change the
requirements of section 1016.5. (§ 1016.3, subd. (c).)
The Legislature followed the statutory codification of Padilla with the enactment,
effective January 1, 2017, of section 1473.7. (Stats. 2016, ch. 739, § 1.) As it existed at
the time of the proceedings in the present case, section 1473.7 provided, in pertinent part:
“(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a
conviction . . . for . . . the following reason[]: [¶] (1) The conviction . . . is legally
invalid due to a prejudicial error damaging the moving party’s ability to meaningfully

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10.
understand, defend against, or knowingly accept the actual or potential adverse
immigration consequences of a plea of guilty or nolo contendere.”
Effective January 1, 2019, the Legislature added the following clarification to
subdivision (a)(1) of section 1473.7 (Stats. 2018, ch. 825, § 2): “A finding of legal
invalidity may, but need not, include a finding of ineffective assistance of counsel.” (See
People v. Mejia (2019) 36 Cal.App.5th 859, 861-862.) In her reply brief, appellant relies
on this amendment to assert that her case “does not fall simply on whether or not the
Superior Court has made a proper finding of ineffective assistance of counsel. The
broader question before this court is whether under the circumstances of this case, and
consistent with the interests of justice and the findings and declarations made in section
1016.2 of the Penal Code, . . . the Appellant met the standard for legal invalidity now
required by P.C. §1473.7.”5
Because the amendment is a clarification of existing law, at least two Courts of
Appeal have held — one with the agreement of both parties — that it applies to nonfinal
judgments. (People v. Mejia, supra, 36 Cal.App.5th at p. 865; People v. Camacho,
supra, 32 Cal.App.5th at p. 1007.) In the trial court, appellant argued ineffective
assistance of counsel, but also based her claim on the grounds of section 1473.7,
subdivision (a)(1). Accordingly, even though her motion was based on errors by her
counsel at the time she pled guilty, she need not establish a Sixth Amendment violation
5 As a general proposition, points raised for the first time in a reply brief will not be
considered unless good reason is shown for failure to present them earlier. (People v.
Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2; People v. Jackson (1981) 121
Cal.App.3d 862, 873; see People v. Carrasco (2014) 59 Cal.4th 924, 990.) While
appellant could not have addressed the amendment in her opening brief, which was filed
before the amendment went into effect, she should have requested permission to file a
supplemental brief, rather than raising the issue in a reply brief or under the guise of
supplemental authorities. (See People v. Mejia, supra, 36 Cal.App.5th at p. 865; People
v. Camacho (2019) 32 Cal.App.5th 998, 1000.) We have not requested supplemental
briefing from either party, however, because the recent legislation merely clarifies the
law as it has always existed, and our conclusions are not affected by the clarification.

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11.
under Strickland standards. (People v. Camacho, supra, 32 Cal.App.5th at p. 1008.)
Rather, “to establish a ‘prejudicial error’ under section 1473.7, [appellant] need only
show by a preponderance of the evidence: (1) [s]he did not ‘meaningfully understand’ or
‘knowingly accept’ the actual or potential adverse immigration consequences of the plea;
and (2) had [s]he understood the consequences, it is reasonably probable [s]he would
have instead attempted to ‘defend against’ the charges.” (People v. Mejia, supra, 36
Cal.App.5th at p. 862.)
At all times, section 1473.7, subdivision (e)(3) has provided that if the court grants
the motion to vacate the conviction, the court shall permit the moving party to withdraw
his or her plea of guilty or no contest. A decision whether to deny a motion to withdraw
a guilty or no contest plea is reviewed for abuse of discretion (e.g., People v. Fairbank
(1997) 16 Cal.4th 1223, 1254), as is a motion to vacate a conviction under section 1016.5
(e.g., People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192). Insofar as a
motion to vacate a conviction under section 1473.7 is based on a claim the defendant was
deprived of the constitutional right to the effective assistance of counsel, however, the
matter is subject to our independent review. (People v. DeJesus (2019) 37 Cal.App.5th
1124, 1132; People v. Fryhaat (2019) 35 Cal.App.5th 969, 975; People v. Tapia (2018)
26 Cal.App.5th 942, 950; People v. Olvera (2018) 24 Cal.App.5th 1112, 1116; People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 76.) Even when applying the de novo standard of
review, we defer to the trial court’s factual determinations if they are supported by
substantial evidence, i.e., evidence that is reasonable, credible, and of solid value.
(People v. Tapia, supra, 26 Cal.App.5th at p. 951; People v. Olvera, supra, 24
Cal.App.5th at p. 1116.) The trial court is the trier of fact and the judge of the credibility
of witnesses and/or affiants (People v. Quesada (1991) 230 Cal.App.3d 525, 533,
superseded by statute on another ground as stated in People v. Totari (2003) 111
Cal.App.4th 1202, 1206-1207, fn. 5), and “[w]e do not reweigh the evidence or
reevaluate witness credibility” (People v. Tapia, supra, 26 Cal.App.5th at p. 951).

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12.
Whatever Irigoyen’s omissions may or may not have been, appellant has not
established, by a preponderance of the evidence, the prejudice prong of Strickland (see In
re Scott (2003) 29 Cal.4th 783, 811) or, with respect to section 1473.7, subdivision (a)(1),
that prejudicial error damaged her ability to meaningfully understand or knowingly
accept the immigration consequences of her plea. The written plea form advised, in no
uncertain terms, that appellant’s guilty or no contest plea would result in her deportation,
exclusion from admission to the United States, and denial of naturalization under the laws
of the United States.6 Irigoyen, an officer of the court, attested that he had reviewed the
form with appellant and explained any possible immigration consequences, and he was
satisfied she understood. An interpreter, who had a written oath on file, certified having
translated the entire form to appellant, and that appellant stated she understood the form’s
contents. Appellant declared, under penalty of perjury, that she understood each item.
She verbally acknowledged to the court, during the change of plea hearing, that she
signed the form and understood everything on it, and that she did not have any questions
concerning what could happen if she pled guilty.
This is not a case in which a defendant was advised his or her plea may or could
have the consequence of deportation (see People v. Ruiz (2020) 49 Cal.App.5th 1061,
1063, 1065-1066; People v. Mejia, supra, 36 Cal.App.5th at p. 863; People v. Camacho,
supra, 32 Cal.App.5th at p. 1001; see also People v. Patterson, supra, 2 Cal.5th at
6 Where section 1016.5 is concerned, “[a] court ‘may rely upon a defendant’s
validly executed waiver form as a proper substitute for personal admonishment.’
[Citation.]” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 175; see People v. Araujo
(2016) 243 Cal.App.4th 759, 762; People v. Quesada, supra, 230 Cal.App.3d at pp. 535-
536.) We see no reason a court passing upon a claim of ineffective assistance of counsel
or a motion to vacate brought pursuant to section 1473.7, cannot similarly rely on the
form as evidence concerning advisements given the moving party in such a proceeding.
Regardless of whether an advisement from a source other than defense counsel is relevant
to the question whether counsel’s performance was deficient (see U.S. v. Rodriguez-Vega
(9th Cir. 2015) 797 F.3d 781, 787), it is manifestly relevant to the issue of prejudice (see
U.S. v. Kayode (5th Cir. 2014) 777 F.3d 719, 728-729).

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13.
p. 898), nor is it one in which a defendant for whom the possibility of deportation was a
determining factor in deciding whether to plead guilty was erroneously advised or led to
believe the plea would not subject him or her to deportation (see Lee v. United States
(2017) 582 U.S. ___, ___, ___, ___-___ [137 S.Ct. 1958, 1962, 1963, 1965-1967];
People v. Camacho, supra, 32 Cal.App.5th at p. 1001). Rather, the immigration
consequences were clear, and the advisement given to appellant was equally clear. (See
People v. Olvera, supra, 24 Cal.App.5th at p. 1117; People v. Perez (2018) 19
Cal.App.5th 818, 829-830.)7
The trial court’s implied finding that appellant’s post hoc assertions lacked
credibility in light of the contemporaneous record of her plea (see Lee v. United States,
supra, 582 U.S. at p. ___ [137 S.Ct. at p. 1967]), is supported by substantial evidence.
(See People v. Tapia, supra, 26 Cal.App.5th at pp. 951-953.) Exercising our independent
review while accepting the trial court’s credibility determination and factual findings, we
conclude appellant is not entitled to have her conviction vacated.
DISPOSITION
The order is affirmed.
7 “The admonition was boilerplate, but it was unequivocal and accurate.” (People v.
Olvera, supra, 24 Cal.App.5th at p. 1117.)

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