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Name: People v. Carrillo (2024) 100 Cal.App.5th 793
Case #: F084751
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 03/15/2024

A motion to vacate a conviction or sentence under Penal Code section 1473.7 may be based on the defendant’s failure to meaningfully understand or defend against the adverse immigration consequences of a probation violation. In 2002, after a trial, Carrillo was convicted of assault with a firearm and sentenced to probation and 301 days in jail. In 2007, Carrillo admitted a violation of probation, and was sentenced to 90 days consecutive. Because defendant’s total sentence (391 days) now exceeded one year due to the probation violation and was now an “aggravated felony” (a crime of violence for which the term of imprisonment was at least one year), in 2016 the DHS began removal proceedings. Carrillo filed a section 1473.7 motion to vacate his conviction, arguing that he might have made different decisions regarding trial if he had known about the immigration consequences. Finding no prejudice, the trial court denied the motion. Carrillo appealed. Held: Affirmed, but denial modified to be without prejudice. In 2021, the Legislature amended section 1473.7 to permit a motion to vacate due to prejudicial error damaging the defendant’s ability to meaningfully understand or defend against adverse immigration consequences of a “conviction or sentence,” as opposed to a “plea of guilty or nolo contendere.” (§ 1473.7(a)(1).) To align with federal immigration law, the word “sentence” used in subdivision (a)(1) encompasses the entire “term of imprisonment,” and includes additional incarceration imposed for a probation violation. Here, Carrillo demonstrated a lack of meaningful understanding of potential immigration consequences at the time he decided to go to trial up to his April 2002 sentencing. Carrillo did not address whether there was a misunderstanding of the immigration consequences of his 2007 probation violation admission or sentencing, so the court made no findings as to these.

When a defendant loses at trial or admits a probation violation, prejudice may be established by demonstrating that, had the defendant been aware of the immigration consequences, there is a reasonable probability the defendant would have “taken a different path” with a more favorable outcome. To obtain relief under section 1473.7, a defendant must also demonstrate that the error was prejudicial. The Court of Appeal adapted the prejudice analysis in People v. Vivar (2021) 11 Cal.5th 510 to the circumstances of this case and concluded that a defendant who decides to go to trial, loses, and is sentenced can establish prejudice for purposes of section 1473.7(a)(1) by showing there is a reasonable probability that (1) he or she would have taken a different path in defending against the sentence and (2) the alternate path would have resulted in an immigration-neutral outcome. Similarly, a defendant establishes prejudice for purposes of section 1473.7(a)(1) by showing there is a reasonable probability that (1) he or she would have taken a different path in defending against the time imposed for a probation violation and (2) the alternate path would have resulted in a more favorable outcome under immigration law. Here, focusing only on his decision to go to trial, Carrillo did not establish a reasonable probability that he would have pursued additional defenses or that there was an immigration-safe plea available. Further, Carrillo’s motion did not address whether he could have taken a different path regarding the 2002 sentence, the 2007 probation violation admission, or the 2007 additional period of incarceration. Therefore, the trial court correctly determined that the grounds presented in Carrillo’s motion did not entitle him to relief.

Carrillo may file a new motion under section 1473.7, despite not originally pursuing all the available grounds for relief, because no judicial decision had interpreted the scope of the 2021 amendment. When Carrillo filed and argued his motion, no published decision had described how the amendment to section 1473.7 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. Nor had any published decision explained that the 2021 amendment abrogated the determination in People v. Cruz-Lopez (2018) 27 Cal.App.5th 212 that section 1473.7 could not be used to challenge the admission of a probation violation. Accordingly, the court modified the order denying relief to be without prejudice to Carrillo pursuing theories of prejudicial error that were not raised in his original motion and had not been explicitly recognized in a published judicial decision, such as his admission of the 2007 probation violation, his failure to defend against a term of incarceration of more than 63 days for that violation, or both.