Filed 12/10/19 P. v. Perera CA4/2

See Concurring Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

WILBERT PERERA,

Defendant and Appellant.

E069946

(Super.Ct.No. CR64853)

OPINION

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Wilbert Perera is a Mexican citizen seeking asylum in the United States because he was kidnapped, tortured, and held for ransom by cartel members in Mexico. To that end, he challenges the trial court’s denial of his motion to set aside his 1995 guilty plea to a robbery count (Pen. Code, § 211 ), an aggravated felony offense that will prevent the granting of his asylum petition. (8 U.S. Code, §§ 1101(a)(43), 1158(b)(2)(B)(i).)

BACKGROUND

Defendant was an infant when he entered the United States from Mexico sometime in 1974. He acquired permanent resident status in 1989.

In 1995, defendant and another man began using abusive language toward customers and an employee of a gas station store, including calling the victim, an elderly white man, “white trash” and calling the black clerk “nigger.” When the victim left the store, defendant and the other man followed him, asking how much money he had. Defendant said he had a gun in the car, and went to retrieve it. When defendant returned, his hands inside his waistband with the butt of a gun in his hand, the other man grabbed the victim’s wallet, ran with it, and then returned it to the victim with the remark, “We could have taken it all, next time remember us Mexicans.”

Defendant was arrested and charged with second degree robbery (§ 211) and three enhancements: committing a hate crime in concert with others (§ 422.75, subd. (b)), personally using a firearm in the commission or attempted commission of a felony (former § 12022.5, sub. (a) & § 1192.7, subd. (c)(8)), and being armed with and personally using a firearm (former § 12022, subd. (a)(1)).

Defendant entered a plea of guilty on the robbery count in exchange for a low-term sentence of two years and the dismissal of the three enhancements. The agreement was set forth in a County of Riverside plea form signed by defendant and his counsel.

Upon his release from prison, defendant lost his permanent resident status and was deported to Mexico in 1998 on account of his conviction on the section 211 count. Not wanting to be separated from his family, he reentered the United States. After his wife left him, he went through a period of drug abuse until he settled down with another woman who was to become his wife and the mother of his second child. He became a dedicated stepparent and father.

In 2013, defendant was again deported to Mexico after being arrested for driving under the influence of alcohol. While living in Tijuana, he was kidnapped, tortured, and held for ransom by cartel members. Fearing for his life, he reentered the United States, turned himself in to immigration authorities, and requested asylum. The United States Department of Homeland Security determined defendant demonstrated a credible fear of torture or persecution. He was released on bond in February 2015, and in May 2016, he was advised of an immigration hearing date of March 8, 2019.

On August 29, 2017, after learning his conviction would render him ineligible for asylum, he filed a motion pursuant to sections 1016.5 and 1473.7 to withdraw his 1995 plea and vacate his conviction on the grounds that he did not understand the consequences of his plea and the court and his counsel had not told him the plea could result in deportation or exclusion from the United States. The reporter’s notes of the 1995 plea had been destroyed because more than 20 years had elapsed since the proceeding but the plea form executed by defendant and the court’s minutes from the 1995 hearing were submitted to the court.

The motion was denied after hearing. Defendant appealed.

DISCUSSION

On appeal, defendant argues the trial court erred when it found the 1995 court properly advised him of the adverse immigration consequences of his plea in accordance with section 1016.5, that his 1995 attorney’s performance had not been deficient, that section 1473.7 was not retroactive, and that his arguments made pursuant to section 1473.7 were not timely. In addition, defendant argues the trial court should have decided his section 1473.7 claim on its merits and in his favor. We will affirm the court’s finding as to section 1016.5 advisement and counsel’s performance. We will reverse the finding that defendant’s section 1473.7 motion was not timely and remand with instructions that a hearing be conducted on the merits of that issue.

I. The 1995 Court Properly Advised Defendant Pursuant to Section 1016.5

Defendant contends that the denial of his section 1016.5 motion requires reversal because he established that the 1995 court did not properly advise him that his plea could have adverse immigration consequences. We do not agree.

Section 1016.5 provides in relevant part that before the trial court accepts a guilty plea, it must advise the defendant on the record that, if defendant is not a citizen, conviction of the charged offense may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. (§ 1016.5, subd. (a).) The advisement need not be given orally but may be recited in a plea form. (People v. Araujo (2016) 243 Cal.App.4th 759, 762.) Substantial compliance with the statute is all that is required. (Ibid.)

If the court fails to advise a defendant who may suffer an adverse immigration consequence as a result of the plea, it must, on the defendant’s motion, vacate the judgment and permit the defendant to withdraw the guilty plea and enter a plea of not guilty. (§ 1016.5, subd. (b).) If there is no record that the court provided the required advisement, it will be presumed that defendant did not receive it. (Ibid.)

To prevail on a section 1016.5 motion, a defendant must establish that the required advisements were not given, that the conviction may result in adverse immigration consequences, and that defendant would not have pled guilty or no contest had the court complied with the statute. (People v. Arriaga (2014) 58 Cal.4th 950, 957-958.)

We review the trial court’s decision on a section 1016.5 motion for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) That standard is not a unified one. Rather it varies depending upon the aspect of the ruling under review. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) Findings of fact are reviewed for substantial evidence, conclusions of law are reviewed de novo, and the trial court’s application of the law to the facts will be reversed only if it is done in an arbitrary, capricious, or patently absurd manner. (Ibid.)

In this case, the trial court did not abuse its discretion when it denied defendant’s claim made pursuant to section 1016.5 because substantial evidence supports its finding that the 1995 court properly advised defendant that his guilty plea may have adverse immigration consequences, including deportation and exclusion from admission to the United States. Although there is no reporter’s transcript of the hearing, the minute order recites the court’s finding that defendant knew and understood the consequences of his plea. Moreover, the filed-endorsed plea form executed by defendant includes a recital that he understood that, if he is not a United States citizen and he pleads guilty, the plea might have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Defendant initialed an acknowledgement that he read and understood that statement. He also signed a statement on the form that the initials are his, and that he read and understood each of the statements he initialed.

In addition, the plea form includes the signature of defendant’s counsel acknowledging his satisfaction that defendant understood his rights, that defendant had an adequate opportunity to discuss his case with counsel, and that defendant understood the consequences of his guilty plea.

Defendant argues that denial of his section 1016.5 claim was error because the trial court’s conclusion that he was properly advised by the 1995 court was almost certainly based upon its mistaken recollection that the 1995 minutes of the plea hearing reflected discussion of immigration consequences. The record does not support that premise. Although the trial court said the 1995 minutes might have mentioned those consequences, its finding that section 1016.5 was satisfied was bottomed on the plea form initialed and executed by defendant.

Defendant also contends denial of his section 1016.5 claim was error because there is no evidence that the 1995 court ensured the advisement was competently explained by counsel or that defendant understood that the warning applied to him. Those contentions are unavailing. Section 1016.5 imposes a duty on the trial court to advise a defendant of immigration consequences and authorizes that court to set aside a plea and vacate a conviction when it fails to fulfill that duty. (People v. Aguilar (2014) 227 Cal.App.4th 60, 71 (Aguilar).) It does not require counsel to give advice. (Ibid.) Nor does it confer jurisdiction on the court to vacate a conviction or set aside a plea based upon counsel’s ineffective assistance with respect to advising a defendant of a plea’s adverse immigration consequences. (Ibid.)

II. Defendant Has Not Established that the Assistance of His 1995 Counsel

Was Ineffective

Although defendant may not bolster his section 1016.5 argument with an ineffective assistance of counsel claim, he properly raised that claim as an independent nonstatutory ground for his motion to withdraw his guilty plea and vacate his conviction. (Aguilar, supra, 227 Cal.App.4th at p. 72.)

To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance fell below an objective standard of reasonableness as measured against the then prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688.) The defendant must also establish prejudice by showing it was reasonably probable that a more favorable outcome would have been obtained had counsel not been ineffective. (Id. at pp. 694-695.) We find the trial court did not abuse its discretion when it rejected defendant’s ineffective assistance of counsel claim and, therefore, do not reach the issue of prejudice.

Here, defendant claims the trial court should have found his 1995 counsel was ineffective because counsel failed to ascertain defendant’s status as a noncitizen who needed, but did not receive, advice concerning the adverse immigration ramifications of his plea. We are not persuaded.

First of all, even if counsel knew of defendant’s immigration status, when defendant’s plea was entered in 1995, defense counsel’s duty to a criminal defendant did not include volunteering advice about adverse immigration consequences, which were then considered a noncriminal collateral matter not falling within the ambit of the Sixth Amendment. (Chaidez v. United States (2013) 568 U.S. 342, 347-354.)

Second, there was no reason for defendant’s 1995 counsel to know that defendant was a noncitizen in need of advice concerning immigration consequences. Counsel, who has no recollection of his representation of defendant, speculated that he likely assumed defendant was a citizen if defendant did not need an interpreter (no interpreter was used) and spoke English well (he does).

Moreover, there is no indication that defendant informed his counsel of his noncitizen status even though the importance of disclosing that status and the potential for adverse immigration consequences would have been apparent at least twice in the course of the plea hearing. An opportunity for disclosure was presented when the court gave the section 1016.5 advisement. As explained in Patterson, one of the purposes of the section 1016.5 advisement is to alert a noncitizen defendant to ask counsel about the risk of immigration consequences. (People v. Patterson (2017) 2 Cal.5th 885, 896-897.) Another opportunity for defendant to disclose his noncitizen status to counsel and seek advice with respect to the consequences of his plea was presented when defendant was reviewing and executing the plea form with the assistance of his counsel. That form includes a notice to defendants of the potential impact of a guilty plea on a noncitizen’s immigration status. Even if counsel had not gone into detail but “glossed over” the immigration consequences portion of the plea form as he speculates may have happened, the language in the plea form clearly signaled the importance to defendant of revealing to counsel his citizenship status. Defendant—who grew up in the United States, has a high school education, and speaks English very well—indicated by his initials and signature that he had read and understood that his conviction may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

Defendant’s efforts to establish that counsel had a duty to inquire about his citizenship status are unavailing. He points to Justice Mosk’s dissent in In re Resendiz, which states that section 1016.5 requires counsel to ask a defendant if he is a citizen. (In re Resendiz (2001) 25 Cal.4th 230, 255 (conc. & dis. Opn. of Mosk, J.) (Resendiz), abrogated in part in Padilla v. Kentucky (2010) 559 U.S. 356, 370-371 (Padilla).) Even if Resendiz had been decided before defendant’s plea instead of six years after, Justice Mosk’s dissent would not have imposed on counsel an affirmative duty to ask defendant whether he was a United States citizen. (See People v. Lopez (2012) 55 Cal.4th 569, 585 [dissenting opinions are not binding precedent].)

Defendant also posits that his 1995 counsel had a duty to inquire about his citizenship status because, by then, California attorneys had been put on notice of the need to provide counseling concerning immigration consequences with the enactment of section 1016.5 and the issuance of the opinions in People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano) and People v. Barocio (1989) 216 Cal.App.3d 99. Those authorities did not impose a duty on counsel to ask defendants about their citizenship status or to advise them that a plea may have immigration consequences. As discussed ante, section 1016.5 imposed a duty of advisement on the court, not counsel. (Aguilar, supra, 227 Cal.App.4th at p. 71.) Soriano stands for the proposition that, if a defendant raises a specific question concerning collateral consequences of a plea, then counsel must fully and correctly advise the defendant on the subject. (Soriano, at pp. 1481-1482.) Barocio, which involved a sentencing issue, confirmed the then prevailing rule that counsel had no duty to warn of the possible adverse immigration impact of a plea because those consequences were considered to be collateral matters. (Barocio, at p. 110.)

III. Section 1473.7 is Retroactive and Defendant’s Motion was Timely

Defendant argues the trial court erred when it denied his section 1473.7 claim on the grounds that it was not timely and the statute is not retroactive.

The People concede the statute is retroactive but argue defendant’s claim was too late and lacked merit. We find the court erred when it failed to apply the statute retroactively and found the motion untimely.

In relevant part, section 1473.7 authorizes a person who is no longer in criminal custody to move to vacate a conviction or sentence that is legally invalid due to a prejudicial error resulting in damage to the person’s ability to understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of entering a guilty plea. (§ 1473.7, subd. (a)(1).) A finding that the conviction or sentence is legally invalid may, but need not, include a finding of ineffective assistance of counsel. (Ibid.)

If a section 1473.7 motion is made with reasonable diligence and if the error and resulting prejudice are established by a preponderance of evidence, the court must grant the motion to vacate and allow the defendant to withdraw the plea. (§ 1473.7, subds. (b), (e)(1), & (e)(3).)

In this case, when the trial court found that section 1473.7 did not apply to defendant’s plea because it was entered prior to the statute’s enactment, it did not have the benefit of authority establishing the provision’s retroactivity. Cases decided since then make clear that the statute is retroactive. (People v. Espinoza (2018) 27 Cal.App.5th 908, 912-913; People v. Perez (2018) 19 Cal.App.5th 818, 827 [the statute’s language indicates that, if the moving party satisfies its requirements, it can be applied retroactively].)

The trial court also found that defendant’s motion was not timely. It pointed to subdivision (b) of section 1473.7, which provides in pertinent part that a motion must be filed with reasonable diligence after the defendant’s receipt of notice to appear in immigration court or other notice from immigration authorities asserting the conviction as a basis for removal. It concluded that, because defendant was first deported in 1998 but did not attempt to vacate his conviction until 2017, he did not act with reasonable diligence. The difficulty with that reasoning is section 1437.7, which gave rise to defendant’s motion, did not take effect until January 1, 2017. The measure of defendant’s diligence in pursuing relief is properly measured by the date it became available to him.

Here, defendant was reasonably diligent in pursuing his remedy. The statute was enacted on September 28, 2016. (Stats. 2016, ch. 739, § 1 (Assem. Bill No. 813).) The following week, defendant’s counsel started the process of gathering exhibits for the motion. The completed motion was filed in August 2017. The motion was timely.

DISPOSITION

We reverse the trial court’s finding that defendant’s section 1473.7 motion was not timely and remand the matter for a hearing on the merits of that issue. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

FIELDS

J.
[People v. Perera, E069946]

Slough, J., Concurring.

I agree with the majority’s disposition and their decision to remand this case to the trial court so that it can consider the merits of William Perera’s Penal Code section 1473.7 motion. I write separately because there has been an amendment to section 1473.7 since the trial court first considered Perera’s motion. At the time Perera filed his motion, section 1473.7 required defendants to demonstrate that their failure to meaningfully understand the negative immigration consequences of their guilty pleas was a result of ineffective assistance of counsel. While Perera’s appeal was pending, the Legislature amended section 1473.7 to expand the circumstances under which noncitizen defendants can obtain relief from the adverse immigration consequences of their guilty pleas. Now, noncitizen defendants are entitled to have their convictions vacated under section 1473.7 if they show by a preponderance of the evidence (i) they didn’t “meaningfully understand” the “actual or potential” immigration consequences of their pleas and (ii) had they so understood, it’s “reasonably probable” they would have “instead attempted to ‘defend against’ the charges.” (People v. Mejia (2019) 36 Cal.App.5th 859, 862, 866 (Mejia); see also People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho).) The majority do not discuss this legal development, but I think it’s important to do so because the evidentiary hearing is necessary to address the factual issues the amended section 1473.7 puts into play.

I

LEGAL BACKGROUND

It is helpful to understand the legal context in which Perera brings his section 1473.7 motion to vacate his conviction, as the last several decades have seen a steady trend of increasing procedural safeguards for noncitizen criminal defendants. “The current rules and procedures regarding noncitizens—and their respective rights within the criminal justice system—are based on decades of changes and advancements within the legislative, executive, and judicial branches of government, at both the state and federal levels.” (Mejia, supra, 36 Cal.App.5th at p. 866.)

In the beginning, the law considered the immigration ramifications for noncitizen defendants to be indirect or collateral consequences of a guilty plea, and thus didn’t require courts to advise them of those consequences before taking their guilty pleas. (Mejia, supra, 36 Cal.App.5th at p. 866.) In 1977, the Legislature enacted a law requiring courts to advise defendants: “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.” (§ 1016.5, subd. (a).) At that time, defense attorneys were under no duty to discuss the potential adverse immigration consequences of pleading guilty with their clients. However, in some cases, an attorney’s affirmative misrepresentation about immigration consequences could constitute ineffective assistance (IAC). (In re Resendiz (2001) 25 Cal.4th 230, 247.) But unless the defendant actually inquired about immigration consequences thereby prompting affirmative advice, “counsel could generally rely on the court’s immigration advisement.” (Mejia, at pp. 866-867.)

That changed in 2010, when the United States Supreme Court decided Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) and imposed a duty on defense counsel to understand and accurately explain the immigration consequences of a guilty plea. “The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses . . . , immigration reforms over time have expanded the class of deportable offenses. . . . The ‘drastic measure’ of deportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.” (Id. at p. 360.) “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” (Id. at p. 374.)

In 2016, the California Legislature enacted two new Penal Code provisions to codify and expand the Padilla protections for noncitizen criminal defendants. (§§ 1016.2, 1016.3.) Those provisions state in relevant part: “The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.” (§ 1016.2, subd. (g).) “It is the intent of the Legislature to codify [Padilla] and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.” (§ 1016.2, subd. (h), italics added.)

II

SECTION 1473.7

In 2017, the Legislature enacted section 1473.7, further expanding the protections for noncitizen criminal defendants. That provision afforded noncitizens who had pled guilty without understanding the immigration consequences of their convictions a chance to have those convictions vacated in the interests of justice. “A person no longer imprisoned . . . may prosecute a motion to vacate a conviction . . . : [¶] (1) . . . [that] is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty.” (§ 1473.7, subd. (a).) The defendant’s burden of proof when bringing a section 1473.7 motion to vacate is a preponderance of the evidence. (§ 1473.7, subd. (e)(1) [“The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief”].)

Finally, effective January 1, 2019—while Perera’s appeal was pending in this court—the Legislature amended section 1473.7 to add: “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1).)

A. Camacho and Mejia

At the time the parties had fully briefed this appeal, there were no published decisions interpreting the 2019 amendment to section 1473.7. However, before we held oral argument, the Second District decided Camacho and Division Three of the Fourth District decided Mejia, which agrees with and follows Camacho.

As the court explained in Mejia, newly amended section 1473.7 now allows a noncitizen defendant to vacate a guilty plea if they ‘“did not understand the true implications of the plea deal before accepting it”’ and ‘“suffered prejudice”’ as a result of their misunderstanding. (Mejia, supra, 36 Cal.App.5th at pp. 865-866.) “The key to the statute is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken, and not whether their attorney technically provided IAC.” (Id. at p. 866, italics added.) In other words, the 2019 amendment broadened the circumstances under which noncitizen defendants can obtain relief from the adverse immigration consequences of their guilty pleas. Before the amendment, defendants were required to prove IAC on the part of their attorneys. After the amendment, defendants could obtain relief by demonstrating their own subjective misunderstanding of the immigration consequences.

In Camacho, the defendant, John Camacho, pled no contest to possession of marijuana for sale in 2009. (Camacho, supra, 32 Cal.App.5th at p. 998.) In his declaration supporting his section 1473.7 motion to vacate his conviction, Camacho said he had been living in the United States since he was two years old. He was married to a United States citizen and they had two young children. (Camacho, at p. 1001.) He said when he entered his plea he “heard the judge say the conviction could lead to deportation,” however, he relied on his defense attorney’s statement that “everything would be fine” if he pled. (Ibid.)

At the hearing on his motion, Camacho testified he had been married to his wife for 12 years and had not left the country since he arrived at age two. (Camacho, supra, 32 Cal.App.5th at p. 1002.) He said his attorney did not tell him the marijuana conviction “would subject him to mandatory deportation . . . [and] would prevent him from ever becoming a legal permanent resident.” (Ibid.) Camacho’s attorney testified he could not remember discussing immigration consequences with Camacho, but was sure he had mentioned that the conviction could subject Camacho to deportation because he discusses immigration consequences with all his clients. (Ibid.)

The trial court denied Camacho’s motion to vacate on the ground he had not proven IAC. Noting the 2019 amendment to section 1473.7 took effect after the trial court made its ruling, the appellate court reviewed the evidence from Camacho’s hearing under the new standard for relief—whether Camacho had demonstrated his own misunderstanding of the immigration consequences. (Camacho, supra, 32 Cal.App.5th at pp. 1008-1009.) The appellate court concluded Camacho’s declaration and hearing testimony demonstrated by a preponderance of the evidence his “own error” in “not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.” (Id. at p. 1009.) The fact the trial court had advised him the conviction “could” lead to deportation was not dispositive. The court found Camacho’s claim he misunderstood the consequences was “supported by his former attorney’s undisputed testimony that he told [Camacho] only that the charge could subject him to deportation.” (Ibid.)

Turning to prejudice, the court observed that element could be satisfied by evidence that a defendant “‘would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.’” (Camacho, supra, 32 Cal.App.5th at p. 1011, citing Lee v. United States (2017) 582 U.S. __ [137 S.Ct. 1958].) The court concluded Camacho had demonstrated prejudice by a preponderance of the evidence because his strong ties to our country—e.g., his family ties and the fact “[h]e was brought to the United States over 30 years ago at the age of two, has never left this country, and attended elementary, middle, and high school in Los Angeles County”—supported an inference that he “would never have entered the plea if he had known that it would render him deportable.” (Camacho, at pp. 1011-1012.) The court reversed the order denying Camacho’s motion and remanded with instructions to vacate the conviction. (Id. at pp. 1004, 1012.)

In Mejia, as in Camacho, the 2019 amendment to section 1473.7 took effect while the defendant’s appeal was pending. In 2017, Fernando Mejia sought to vacate three drug offense convictions he had pled guilty to in 1994. In his supporting declaration, he said his attorney had never informed him of the immigration consequences of his plea, even though all their conversations occurred through a Spanish interpreter. (Mejia, supra, 36 Cal.App.5th 859.) He said he had come to the United States when he was 14 years old. (Id. at p. 863.) When he pled, he had been living in the United States for eight years along with a significant portion of his family—his wife and infant son, as well as his mother and his six siblings. (Id. at p. 872.) He said, “Had I known that the charges would result [i]n imminent deportation and would have precluded any defense to deportation, I would have chosen to fight the charges or try to negotiate a result that would not destroy my chances of staying in the United States. By this point, I had already spent 8 years in the United States and I already considered this country my home. I never would have simply accepted responsibility if I knew I’d be deported.” (Id. at pp. 863-864.)

Like in Camacho, the trial court denied the motion on the ground Mejia had not demonstrated IAC. (Mejia, supra, 36 Cal.App.5th at p. 865.) And, like the appellate court in Camacho, the Mejia court reviewed the evidence from the hearing under the new standard and concluded Mejia had shown, by a preponderance of the evidence, that he did not “‘meaningfully understand’” the mandatory deportation consequences of his conviction when he pled. (Mejia, at p. 872.) The fact Mejia had initialed the immigration advisement on the plea form (as Perera did in this case) didn’t alter the court’s conclusion, because the standard is subjective and asks whether the defendant actually and meaningfully understood the immigration consequences—and Mejia’s testimony that he did not understand those consequences was undisputed. As to prejudice, the court concluded the evidence of Mejia’s strong ties to the United States demonstrated a “reasonable probability” he would not have pleaded guilty but instead would have risked going to trial (even if only to figuratively throw a “Hail Mary”). (Id. at p. 871.)

B. Perera’s Motion

As in both Mejia and Camacho, Perera presented evidence through his and his attorney’s declarations that (i) he did not meaningfully understand his conviction would result in a mandatory deportation, (ii) his attorney did not explain the immigration consequences to him (his attorney said he didn’t remember discussing deportation with Perera and likely “glossed over” the immigration consequences), and (iii) he had been in the United States for most of his life, considered it home, and thus would have taken his chances going to trial if he knew the conviction would lead to deportation.

Viewed in light of Camacho and Mejia, Perera’s declarations suggest he may have a meritorious claim for relief. Though Perera asks us to apply Camacho and Mejia now, I believe the better route is to remand so the trial court can consider Perera’s testimony (and any other evidence the parties present) in light of the 2019 amendment to section 1473.7 and the case law interpreting it. We can’t do the same thing here, because, unlike the courts in Camacho and Mejia, the trial court did not hold a hearing on the merits. We’re fixing that, but determining whether Perera qualifies for relief depends on the quality of the evidence presented at the hearing.

SLOUGH

J.