by David M. Reutter

The Court of Appeal of California, Second Appellate District, vacated a defendant’s conviction after finding the immigration consequences were not understood when he entered a plea of no contest to a domestic violence charge, which was an aggravated felony under federal immigration law that required deportation.

The Court’s opinion was issued in connection with Cesar Alfredo Villalba’s appeal of the denial of his motion brought pursuant to Penal Code § 1473.7(a). Villalba was charged on January 26, 2017, by felony complaint with inflicting corporal injury on his spouse. The complaint also alleged great bodily injury on the victim. Villalba waived a preliminary hearing on April 26, 2017, and negotiated a plea agreement that provided for the no contest plea in return for the striking of the great bodily injury allegation and a suspended sentence conditioned upon 365 days in county jail, five years felony probation, a protective order, and 52 weeks of domestic violence classes and fines.

After assuring Villalba understood the terms and conditions, the trial court said, “I don’t know if this applies to you or not. I don’t need to know. I just need to advise you that if you’re not a citizen of the United States, your plea of no contest will result in your deportation, denial of naturalization, denial of citizenship, denial of reentry into the country.” Villalba affirmed he understood that advisement.

His request in March 2021 for early probation termination was denied, as was his November 2021 motion for a nunc pro tunc motion to reduce the jail time imposed to 364 days.

In 2018, the California Legislature amended § 1473.7 to allow a defendant who is no longer in criminal custody to file a motion to vacate a conviction or sentence where “[t]he conviction or sentence is legally invalid due to 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 conviction or sentence.”

“Under federal law, a noncitizen convicted of a crime of domestic violence is deportable,” the Court noted. “A crime of violence for which the term of imprisonment is at least one year is an ‘aggravated felony.’” 8 U.S.C. § 1101(a)(43)(F). Removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided in the U.S. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

Villalba was convicted of crime of violence. Therefore, it is an “aggravated felony” under federal law if it carries a term of imprisonment of at least one year. Whether or not the state classifies the crime as a misdemeanor or felony is of no consequence, for federal law focuses upon the term of imprisonment of at least one year. Habibi v. Holder, 673 F.3d 1082 (9th Cir. 2011).

Villalba in January 2022 filed his motion under § 1473.7 to have his conviction vacated. The prosecution did not oppose the motion, which was argued and denied on January 21, 2022, on grounds a proper advisement was given as to immigration consequences. Villalba appealed.

On appeal, Villalba argued that his defense counsel misadvised him by saying he would not be deported if his offense were later reduced to a misdemeanor and that the sentencing court misadvised him by stating the deportation consequences may not apply to him. He asserted that he misunderstood the immigration consequences of the plea and would not have agreed to it if he had correctly understood the consequences. Villalba’s sentencing counsel testified at the hearing. He stated it was likely and possible that he told Villalba that “if he completed probation and reduced the felony to a misdemeanor that his conviction would no longer be deportable because it would be a misdemeanor with a maximum of 364 days in jail.” That was an inaccurate statement of law.

Under federal law, “[a] conviction vacated for reasons ‘unrelated to the merits of the underlying criminal proceedings’ may be used as a conviction in removal proceedings whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not.’” Prado v. Barr, 949 F.3d 438 (9th Cir. 2020).

The Court concluded that Villalba was misadvised and would have suffered adverse immigration consequences if he later had the offense or time in custody reduced.

It then turned to determine if he was prejudiced as a result. The Court found Villalba came to the U.S. as a child with his parents, attended middle and high school in Los Angeles, met his citizen wife in 2003, later married her and raised six children, remains married, became a permanent resident, only had a single prior offense of driving under the influence of alcohol, and has strong support of an employer and family and friends. His deep ties to the U.S. corroborated his claim that his ability to remain in the country with his family was his paramount concern, the Court determined. 

The Court stated that the uncontradicted evidence, “coupled with the sentencing court’s confusing and contradictory advisement that its warning of certain deportation might not apply to [Villalba],” rendered it reasonably probable that he would have rejected the plea had he been correctly advised of the immigration consequences. Thus, the Court ruled that Villalba established prejudicial error entitling him to relief under § 1473.7.

Accordingly, the Court reversed the order denying Villalba’s motion to vacate his conviction and remanded the case to the superior court with instructions to grant the motion and to vacate the conviction. See: People v. Villalba, 2023 Cal. App. LEXIS 209 (2023).