Trial court’s order denying defendant’s motion to withdraw his plea and vacate his conviction pursuant to Penal Code section 1473.7(a), reversed where defendant was misadvised and the error prejudiced him. Defendant appealed the denial of his section 1473.7 motion to vacate his Penal Code section 273.5 conviction. Held: Reversed with instructions to vacate the conviction. Under section 1473.7(e), a court must vacate a conviction upon a showing that it is legally invalid based on prejudicial error affecting the defendant’s ability to understand the adverse immigration consequences of a plea. Defendant’s plea to section 273.5, with a suspended sentence and probation conditioned on 365 days in jail, is considered an aggravated felony for immigration purposes. As a result, he was presumed deportable and subject to mandatory removal. The Court of Appeal agreed defendant was misadvised because his trial attorney incorrectly told him that if he completed probation and reduced the conviction to a misdemeanor, it would not affect his immigration status. And while the trial court warned defendant of the immigration consequences when it took his plea, it stated these consequences might not apply to him. In finding the error prejudicial, the court looked to defendant’s extensive ties to the U.S., finding it reasonably probable that he would have rejected the plea and risked a trial had he correctly understood its actual immigration consequences. [Editor’s Notes: (1) Section 1473.7 applies to defendants who are no longer in criminal custody. The court concluded it had jurisdiction to reach the merits of this issue, notwithstanding that the motion was prematurely filed when defendant was on probation, as public policy supported deciding the issue on its merits. (2) This opinion was ordered published on 3/22/2023.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B318353.PDF