A person may move to vacate a prior conviction under Penal Code section 1473.7 if she is no longer in criminal custody resulting from the plea and conviction being challenged. In 2005, Rodriguez pleaded no contest to possession of methamphetamine for sale. In 2020, she moved to vacate the conviction under section 1473.7, with a declaration that she was not informed of the immigration consequences of her plea, corroborated by a supervising attorney who reviewed her case file. The trial court denied her motion. She appealed. Held: Reversed. Appellate courts should independently review section 1473.7 rulings on motions that rely entirely on documentary evidence. Section 1473.7 created a mechanism to allow individuals who are no longer imprisoned to move to vacate a conviction on the ground that prejudicial error damaged their ability to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of a guilty plea. The prejudicial error may be based on the movant’s own misunderstanding and a movant need not prove ineffective assistance of counsel. The parties here did not contest that Rodriguez entered her no contest plea based on an error that damaged her ability to understand the adverse immigration consequences of the plea. The court agreed. Moreover, the trial court erred in finding that Rodriguez was barred from relief because she was on probation for another, unrelated conviction. Section 1473.7’s directive that “[a] person who is no longer in criminal custody may file a motion to vacate a conviction” refers to custody resulting from the plea and conviction being challenged.

It was reasonably probable that Rodriguez would not have entered her plea if she had known its adverse immigration consequences. The People argued that the error here was not prejudicial. Prejudice is established under section 1473.7 if the movant shows there is a reasonable probability she would not have pleaded guilty–and would have risked going to trial (even if only to figuratively throw a “Hail Mary”)—had she known the guilty plea would result in mandatory immigration consequences. Factors to consider include the defendant’s ties to the United States, the importance placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. The trial court here relied heavily on the potential outcome of Rodriguez’s trial and gave short shrift to her lifelong residence in the United States and her family here. A “reasonable probability” does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. While there was ample evidence to support Rodriguez’s conviction, this does not mean that Rodriguez would neither have sought to obtain a more immigration-neutral plea deal nor risked going to trial if she had known the dire immigration consequences. It is at least as probable that she would have not entered her no contest plea as that she would have. The matter was remanded with instructions to grant the motion and vacate the 2005 conviction.