People v. Avena - Immigration Consequences Ruling

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March 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Avena

California Court of Appeal

• Citations: None known

• Docket Number: E083900

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 3/26/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E083900

v. (Super.Ct.No. INF1500507)

JOSE MANUEL AVENA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Charles G. Rogers, Judge.

(Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Reversed.

Sabrina R. Damast, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R.

Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

1
Convicted defendants who are no longer in criminal custody may move to have

their convictions vacated if prejudicial error prevented them from understanding the

immigration consequences of the conviction. Defendant and appellant Jose Manuel

Avena moved for such relief, under Penal Code section 1473.7, and the trial court denied

the motion. We hold that, had Avena been made aware of a change in law that, shortly

before his 2017 conviction, opened the door to an immigration-safe plea, there is a

reasonable possibility he would have sought—and the People and the trial court would
1
have accepted—such an alternative to trial. We therefore reverse.

I. BACKGROUND

“The Immigration and Nationality Act (INA) renders deportable any alien

convicted of an ‘aggravated felony’ after entering the United States. [Citation.] Such an

alien is also ineligible for cancellation of removal, a form of discretionary relief allowing

some deportable aliens to remain in the country. [Citations.] Accordingly, removal is a

virtual certainty for an alien found to have an aggravated-felony conviction, no matter

how long he has previously resided here.” (Sessions v Dimaya (2018) 584 U.S. 148, 153

(Sessions); Padilla v. Kentucky (2010) 559 U.S. 356, 364 [with an aggravated felony,

“removal is practically inevitable but for the possible exercise of limited remnants of

equitable discretion vested in the Attorney General”]; Valdez Amador v. Garland (9th

1
Undesignated statutory references are to the Penal Code.

2
Cir. 2022) 28 F.4th 72, 78 [a noncitizen convicted of an aggravated felony “is not only

deportable, but also ineligible for discretionary relief”].)

“The INA defines ‘aggravated felony’ by listing numerous offenses and types of

offenses” and “includes ‘a crime of violence . . . for which the term of imprisonment [is]

at least one year.’” (Sessions, supra, 584 U.S. at p. 153.) A “crime of violence,” in turn,

includes any “offense that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” (18 U.S.C. § 16 (a).) In

addition to this “elements clause,” the term “crime of violence” has also been defined by

a so-called “residual clause,” which includes “any other offense that is a felony and that,

by its nature, involves a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.” (Sessions, supra, at p.

153; 18 U.S.C. § 16 (b).)

In April 2015, Avena was charged with assault with intent to commit rape (§ 220),

attempted forcible rape (§§ 261, subd. (a)(2), 664), and false imprisonment (§ 236), all

stemming from a single incident some months prior. Assault with intent to commit rape

is punishable by imprisonment for two, four, or six years (§ 220, subd. (a)(1)), and it is

undisputed that such a crime is a crime of violence under the elements clause and is

therefore an aggravated felony. Avena’s removal was virtually certain if he were

convicted on the charges.

Avena, who is not a United States citizen, was represented by a public defender

for a few months before retaining his own counsel. Charles Roby was Avena’s public

3
defender. As Avena averred in his section 1473.7 motion: “We had a couple of

discussions about my case. . . . We did discuss my immigration status, and my plans to

gain immigration status through my wife. He told me that there could be complications.

I stressed to Mr. Roby that I had four young children . . . and that my biggest concern was

being around for my children. . . . Mr. Roby did not tell me that what I was facing was

mandatory deportation and inadmissibility for life.” Roby, who testified at the hearing on

the section 1473.7 motion, could not remember for certain whether he told Avena he

“would” be deported or “would potentially” be deported. Roby also testified that, had

Avena indicated that he would not accept a plea deal, Roby would have noted that in his

case file, which contains no such note.

Avena hired Michael Kennedy as trial counsel on August 31, 2015. At the

beginning of his representation, Kennedy asked Avena if Roby had discussed

immigration issues with him, and Avena replied that he had. Kennedy then asked

whether Avena wanted to discuss anything regarding immigration, and Avena said no.

At no point did Kennedy tell Avena that he would be removed if he were convicted. At

the section 1473.7 motion hearing, Kennedy testified that if the current version of section

1473.7—expanded to include convictions following trial—had been in effect at the time,

he would have discussed immigration consequences with Avena, but because no such law

was then in effect, he believed such a discussion “would start to sound like I was trying to

persuade him to take some kind of plea bargain, which I had already promised him I

wouldn’t do.” Kennedy stated: “My recollection is Mr. Avena said he was innocent, and

4
did not want to be talked into any kind of plea bargain. . . . I made it plain to him if he

considered himself innocent, I was not going to talk him into anything other than going to
2
trial.”

At one point during Kennedy’s representation, the prosecution offered the middle

term sentence on the assault with intent to commit rape charge, or a four-year prison

sentence. The prosecutor testified at the section 1473.7 motion hearing. He stated that

any offer made on behalf of the prosecution “needed to be a prison offer.” His supervisor

provided “parameters” for a plea that called for prison time, sex offender registration, and
3
a “strike.” When asked whether his office would have made an immigration-safe offer,

the prosecutor did not suggest that his office sought or considered immigration

consequences. Rather, he reiterated that any offer needed to have the stated parameters.

Avena and Kennedy rejected the offer without making a counteroffer.

2
While section 1473.7, subdivision (a)(1) offers only post-conviction relief, we
understand Kennedy’s statements here to mean that he was not as focused on
immigration consequences at the time as he now would be, as the duties imposed on
defense counsel representing immigrants were changing and growing. (See Eagly et al.,
Restructuring Public Defense After Padilla (2022) 74 Stan.L.Rev. 1, 71 [“some seasoned
attorneys are still practicing under [pre-2010] standards by not providing clients with the
appropriate immigration advice before those clients enter into a plea or proceed to trial”];
§ 1016.3, subd. (a), added by Stats. 2015, ch. 705, § 2.)
3
(See People v. Henderson (2022) 14 Cal.5th 34, 43-44 [“The Three Strikes
scheme comes into play when a defendant is charged with new felony offenses but has
previously been convicted of designated serious or violent felonies. Although these prior
convictions are sometimes referred to as ‘strikes,’ the Three Strikes law itself does not
use that term, instead defining ‘serious’ or ‘violent’ felonies with specificity.”], fn.
omitted.)

5
In October 2015—about a month after Kennedy began representing Avena—the

Ninth Circuit decided Dimaya v. Lynch (9th Cir. 2015) 803 F.3d 1110 (Lynch). In Lynch,

the Ninth Circuit held that the so-called residual clause of the federal “crime of violence”

definition was unconstitutionally vague. (Lynch, supra, 803 F.3d at p. 1111, affd. sub

nom. Sessions, supra, 584 U.S. at p. 175.) Assault with intent to commit rape remained

an aggravated felony after Lynch, as that crime relies on the elements clause of the

federal definition, not the residual clause. However, two other California crimes,

burglary and sexual battery, were no longer aggravated felonies. (Cf. Lisbey v. Gonzales

(9th Cir. 2005) 420 F.3d 930, 931 [holding that California’s crime of sexual battery

constitutes an aggravated felony under the residual clause]; Lopez-Cardona v. Holder

(9th Cir. 2011) 662 F.3d 1110, 1112 [same as to first degree burglary].) Burglary is

relevant here because the victim testified that she rented a room in Avena’s house and

woke up the night of the incident to see Avena inside her locked room. (See §§ 459,

subd. (a) [“Every person who enters any . . . room . . . with intent to commit . . . any

felony is guilty of burglary”], 460, subd. (a) [“Every burglary of an inhabited dwelling

house . . . is burglary of the first degree”].) Felony sexual battery is punishable by two,

three, or four years in prison (§ 243.4, subd. (a)) and requires registration as a sex

offender (§ 290, subd. (c)(1)). First degree burglary is a “strike.” (§ 1192.7, subd.

(c)(18).) At the section 1473.7 hearing, Roby testified that he would have “steered away”

from a burglary plea when representing Avena because it was an aggravated felony. But

6
it was no longer one after Lynch, and he would have offered a plea to burglary and sexual

battery had he still been representing Avena by the time the case was decided.

A jury convicted Avena on all charges in 2017. At sentencing, the trial court

granted Avena three years of probation despite him being presumptively ineligible for it.

(See § 1203.065, subd. (b)(1) [defendants convicted of assault with intent to commit rape

ineligible for probation “[e]xcept in unusual cases where the interests of justice would

best be served if the person is granted probation”], Cal. Rules of Court, rule 4.413(b)-(c).)

It noted that Avena had no criminal history and that the victim suffered no physical

injuries, as Avena did not otherwise use force other than his size and weight. It

accordingly imposed a term of four years and eight months, suspended execution of that

sentence, and granted Avena three years of probation. (See People v. Howard (1997) 16

Cal.4th 1081, 1087 [“where a sentence has actually been imposed but its execution

suspended,” if the suspension is later revoked, “‘[t]he revocation of the suspension of

execution of the judgments brings the former judgment into full force and effect’”].)

In 2023, Avena filed his section 1473.7 motion. He stated that when he decided to

go to trial, he had been in the United States for 16 or 17 years. While in the United

States, he married a United States citizen and had four children born in the United States.

He has three siblings in the United States, one of whom is a naturalized citizen and

another who is a legal permanent resident. He stated: “If I had known that taking a deal

was going to be a better alternative for me, for my family, I would have asked my

attorney to negotiate a deal for me instead of taking my case to trial. I would have

7
accepted a strike or even two. I would not have risked the family separation that I am

currently facing.”

The People opposed the motion on procedural and substantive grounds.

Procedurally, the People argued that Avena was barred from bringing the motion because

his conviction had been final years before the current version of the statute became

effective. On the merits, the People argued that Roby had discussed immigration

consequences with Avena, that Avena had no evidence to support his claim that he would

not have proceeded to a jury trial had he been made aware of immigration consequences,

and that there was no evidence that the prosecution would have entertained a plea offer.

After a hearing where Roby, Kennedy, and the prosecutor testified, the trial court

denied the motion. It first agreed with the People that Avena could not bring the motion

as a matter of law because his conviction was already final. It then found Roby’s

testimony credible and that he had advised Avena of immigration consequences. It found

that the prosecutor would not have accepted anything less than the plea offer that was

proposed. It rejected Avena’s assertion that he would have accepted an immigration-safe

plea bargain because Avena told the police and both his lawyers that he was innocent. It

stated: “[H]ad an offer been made, Mr. Avena would not have accepted that for whatever

his reasons were. It may have been anger. It may have been he felt he was being

manipulated. It may have been he was a prideful man. But he wasn’t going to take that

deal anyway had such a deal been placed on the table.”

8
II. DISCUSSION

“In 2016, the Legislature considered the problems faced by defendants who ‘were

unaware of the immigration consequences posed by a plea entered many years earlier’

and were no longer in state custody.” (People v. Carrillo (2024) 101 Cal.App.5th 1, 12

(Carrillo), citing People v. Vivar (2021) 11 Cal.5th 510, 523 (Vivar).) “The convictions

of defendants who had completed their sentences and any probation or parole period were

beyond the reach of habeas corpus. [Citation.] The Legislature enacted section 1473.7 to

create a mechanism for such defendants to obtain relief.” (Carrillo, supra, at p. 12.)

“The versions of section 1473.7, subdivision (a)(1) in effect from January 1, 2019,

through December 31, 2021, stated a person no longer in criminal custody could file a

motion to vacate a conviction or sentence for the following reason: ‘The 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 plea of guilty or nolo contendere.’ [Citation.]

“In 2021, the Legislature amended the statute by replacing the phrase ‘plea of

guilty or nolo contendere’ with the broader phrase ‘conviction or sentence.’ [Citation.]

The amendment ‘expand[ed] the category of persons able to seek to vacate a conviction

or sentence as legally invalid, whatever way that person was convicted or sentence[d],

9
including a person who was found guilty after a trial.’ [Citations.] The amendment
4
became effective on January 1, 2022.” (Carrillo, supra, 101 Cal.App.5th at p. 13.)

“To establish that a conviction or sentence is legally invalid, a ‘defendant must

first show that he did not meaningfully understand the immigration consequences of his

[conviction or sentence]. Next, the defendant must show that his misunderstanding

constituted prejudicial error.’” (Carrillo, supra, 101 Cal.App.5th at p. 14.)

In Vivar, our Supreme Court stated that, under the former version of section

1473.7 that applied to only pleas, prejudicial error meant “demonstrating a reasonable

probability that the defendant would have rejected the plea if the defendant had correctly

understood its actual or potential immigration consequences.” (Vivar, supra, 11 Cal.5th

at p. 529.) In Carrillo, the Court of Appeal addressed what constitutes prejudicial error

under the current, expanded version of section 1473.7. It held that “a defendant who

decides to go to trial, loses, and is sentenced can establish prejudice for purposes of

section 1473.7, subdivision (a)(1) by showing there is a reasonable probability that (1) he

or she would have done something differently—that is, would have taken another ‘path’

4
In its current form, section 1473.7, subdivision (a)(1) reads: “A person who is
no longer in criminal custody may file a motion to vacate a conviction or sentence for any
of the following reasons: ¶ The 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. A finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.”

10
[citation]—and (2) the alternate path would have resulted in an immigration-neutral

outcome.” (Carrillo, supra, 101 Cal.App.5th at p. 20.)

“A reasonable probability does not mean more likely than not. [Citation.] Instead,

it means merely a reasonable chance, which is more than an abstract possibility.

[Citation.] In other words, a reasonable probability is a probability sufficient to

undermine confidence in the outcome.” (Carrillo, supra, 101 Cal.App.5th at p. 19.)

Avena, then, must show three things. First, he must show that he did not

meaningfully understand the immigration consequences of his conviction. Second, he

must show a reasonable probability that he would not have proceeded to a jury trial had

he understood the immigration consequences. Third, he must show a reasonable

probability that such a path would have resulted in an immigration-neutral outcome.

We apply independent review on appeal of a denial of a section 1473.7 motion.

(People v. Espinoza (2023) 14 Cal.5th 311, 319.) Independent review means we give

deference to credibility determinations. (In re George T. (2004) 33 Cal.4th 620, 634

[“Because the trier of fact is in a superior position to observe the demeanor of witnesses,

credibility determinations are not subject to independent review”].) However, if the facts

underlying the determinations “derive entirely from written declarations and other

documents,” no deference is warranted. (Vivar, supra, 11 Cal.5th at p. 528.)

Avena has shown that he did not meaningfully understand that he was virtually

certain to be removed if he were convicted. It is not common knowledge that some

convictions for serious state crimes fit the federal definition of an aggravated felony but

11
others do not. Neither Roby nor Kennedy testified that they told Avena his removal

following a conviction of an aggravated felony was all but certain. Roby could not

remember whether he told Avena that removal was certain or just likely, and Kennedy

never discussed immigration consequences with Avena at all. As the United States

Supreme Court stated in Padilla v. Kentucky (2010) 559 U.S. 356, 369, “when the

deportation consequence is truly clear, as it was in this case, the duty to give correct

advice is equally clear.” Any presumption that an attorney “has performed his duty in

protecting his client’s interest” (People v. Rucker (1960) 186 Cal.App.2d 342, 346) is

overcome by Avena’s sworn and uncontradicted statement that he was never told he

would be subject to all but certain removal.

Avena has also shown a reasonable probability that he would not have opted for

trial had he been told about the certainty of removal and the availability of an

immigration-safe plea offer. The timing is important for this. When Roby represented

Avena, there is no reason to believe Avena would have chosen an immigration-neutral

plea offer because there was no basis for Roby to make such an offer. However,

following Lynch, the door to an immigration-neutral plea opened. Lynch established that

burglary and sexual battery convictions are not federal aggravated felonies and so do not

lead to automatic removal. Given Avena’s extensive ties to the United States—including

a wife and four children who are United States citizens—there is a reasonable chance that

12
Avena would have preferred pursuing such a plea over a trial with virtually certain
5
removal as a potential outcome.

Most importantly, Avena has shown a reasonable probability that both the court

and the prosecutor would have agreed to an immigration-neutral plea. The possible post-

Lynch plea we focus on here is one for burglary and sexual battery with a four-year
6
prison term, the high term for felony sexual battery. “In exercising their discretion to

approve or reject proposed plea bargains, trial courts are charged with the protection and

promotion of the public’s interest in vigorous prosecution of the accused, imposition of

appropriate punishment, and protection of victims of crimes.” (In re Alvernaz (1992) 2

Cal.4th 924, 941.) The trial court, which granted Avena three years of probation, would

not likely have rejected a plea with a four-year prison term as inappropriately lenient, and

it would likely have accepted it in light of the public interest it is charged with promoting.

Under the prosecutor’s testimony here, such a plea would have been acceptable.

The prosecutor testified that any plea bargain needed a prison term, sex offender

5
The People cite several cases discussing whether a defendant received
ineffective assistance of counsel. Avena need not establish ineffective assistance of
counsel to obtain relief under section 1473.7 (§ 1473.7, subd. (a)(1); People v. Camacho
(2019) 32 Cal.App.5th 998, 1008), and neither party has suggested that either Roby’s or
Kennedy’s actions constituted ineffective assistance.
6
Sexual battery is not a “crime of violence” under the elements clause and thus,
after Lynch, a conviction of sexual battery would not have led to mandatory removal.
(Lisbey v. Gonzales, supra, 420 F.3d at p. 932 [sexual battery “has no requirement of
actual or threatened physical force and is therefore not a ‘crime of violence’ within the
meaning of” the elements clause].)

13
registration, and a “strike.” As noted earlier, any term for felony sexual battery must be

served in state prison (§ 243.4, subd. (a)) and requires sex offender registration (§ 290,

subd. (c)(1)). The “strike” element would have been satisfied by the guilty plea to

burglary. (§ 1192.7, subd. (c)(18).) A plea bargain including burglary and sexual

battery, then, would have satisfied all the prosecutor’s requirements. A four-year

sentence would also have meant Avena spent as much time in prison as under the

prosecutor’s original plea offer, which also included a four-year prison term.

Significantly, the prosecutor did not state that a plea needed to include any immigration

consequences. Indeed, if a plea offer of burglary and sexual battery had been made in

2016, the prosecutor would have had to account for its immigration-safe feature, as the

Legislature has since 2016 required the prosecution to consider the avoidance of adverse

immigration consequences as a factor in reaching a just resolution of a case. (§ 1016.3,

subd. (b).) The prosecutor thus offered no reason Avena would have rejected a plea on

burglary and sexual battery. Although this alone does not establish the prosecutor was

more likely than not to have accepted such a plea bargain, it means that there was a

reasonable chance for such an outcome, which is all section 1473.7, subdivision (a)(1)

requires. Indeed, in People v. Espinoza, supra, 14 Cal.5th at p. 318, the defendant had

pled no contest to conspiracy, felony child abuse, controlling property to manufacture

methamphetamine, and cocaine possession. Based on his lack of other criminal history

and an immigration attorney’s declaration identifying possible immigration-safe

alternatives, our Supreme Court found that “he had reason to expect or hope for a

14
different plea agreement without immigration consequences.” (Id. at p. 325.) The

testimony here about the prosecution’s requirements for a plea is at least as convincing.

The trial court and the People put forth several arguments for why the motion

should have been denied. However, we find each of them unconvincing.

The trial court based its denial partly on its conclusion that section 1473.7 does not
7
apply to cases that were already final at the time the relief under the motion is sought.

The trial court cited to and relied on In re Estrada (1965) 63 Cal.2d 740, which held that

new, ameliorative laws are presumed to apply to cases charged before the law’s

enactment but not yet final. (Id. at p. 745.) However, the trial court was incorrect, as

ameliorative laws can apply to final cases. The Legislature has enacted provisions

“ameliorat[ing] punishment in connection with judgments that were clearly final at the

time the provisions were enacted.” (People v. Esquivel (2021) 11 Cal.5th 671, 677.) For

instance, in People v. Conley (2016) 63 Cal.4th 646, our Supreme Court held that a

provision that applied to “all persons ‘presently serving’ indeterminate life terms” under

prior law was not limited to nonfinal cases, in part because the provision drew “no

distinction between persons serving final sentences and those serving nonfinal

sentences.” (Id. at p. 657.) Here, that rationale applies with greater force, as only a

defendant “who is no longer in criminal custody” can seek relief under section 1473.7.

(§ 1473.7, subd. (a).) The requirement that one no longer be in criminal custody means

7
Notably, the People do not defend this portion of the trial court’s ruling on
appeal, though they state that they do not concede it was wrong.

15
most (and perhaps the vast majority) of those seeking relief under the provision will have

already completed serving final sentences, as a sentence is final when the direct appeal is

completed. Because we do not believe that the Legislature intended relief under section

1473.7, subdivision (a)(1) to apply only to the limited set of defendants who are no

longer in criminal custody but whose case is still not final, we find that the trial court

erred in finding Avena precluded from relief under the provision as a matter of law.

The trial court also denied the motion because it found that Avena did not satisfy

the substantive elements, and for the reasons discussed above, we disagree. The trial

court’s finding that Roby’s testimony was credible—which we defer to on appeal—does

not compel the conclusion that Roby told Avena he was certain to be removed if he were

convicted, as Roby testified he could not remember. Also, we need not defer to the trial

court’s implied credibility finding on Avena because Avena did not personally testify at

the hearing. (Vivar, supra, 11 Cal.5th at p. 528 [“as a practical matter, ‘[t]he trial court

and this court are in the same position in interpreting written declarations’ when

reviewing a cold record in a section 1473.7 proceeding”].)

The trial court’s finding that Avena would not have accepted an immigration-safe

plea relied only on the fact that, at the time of the proceedings, Avena had asserted his

innocence. This caused the trial court to reject Avena’s testimony in his declaration that

he would have accepted an immigration-safe plea if fully informed about the immigration

consequences. The evidence here is too sparse to carry the trial court’s conclusion.

When a defense lawyer understands that a charge all but guarantees removal but an

16
available plea does not, it enables the lawyer to confront his client with the stark and

weighty consequences in a way that can shake the client’s initial desire to go to trial.

Counsel can suggest a no contest plea, through which the defendant need not admit guilt.

(See § 1016; People v. West (1970) 3 Cal.3d 595; see also People v. Palmer (2013) 58

Cal.4th 110, 118-119 [trial court can ensure that a plea is entered voluntarily and

intelligently based on counsel’s stipulation that a factual basis exists for the plea, where

the defendant states that he has discussed the crime and any defenses with counsel and is

satisfied with counsel’s advice].) Here, not only did Kennedy not try to lay out the stakes

for Avena, but he stated that he had “promised” Avena he would not try to persuade him

to plead guilty.

Some defendants may be too obstinate to plead guilty even when the proof is

sufficient for conviction. But the conclusion that Avena would have been unwilling to do

so had he understood the true consequences cannot rest solely on the evidence here.

Avena asserted in his declaration that he would not have risked separation from his

family had an immigration-safe alternative been available. (See People v. Espinoza,

supra, 14 Cal.5th at p. 322 [“defendant’s declaration is one form of objective evidence

relevant to a prejudicial error inquiry”].) His deep ties to the United States at the time of

his plea—including 16 or 17 years of residency, marriage to a United States citizen, and

four U.S.-born children—“can support an inference that immigration consequences were

of paramount concern” at the time of the plea. (Id. at p. 323.) For defendants with deep

roots in the United States, the value of a “different, immigration-safe” plea (id. at p. 325)

17
may be significant enough that understanding its availability could lead to a different

decision. The United States Supreme Court recognized this in Lee v. United States

(2017) 582 U.S. 357. There, where there was no immigration-safe alternative, the Court

held that a defendant demonstrated a reasonable possibility that, had he understood the

mandatory immigration consequences of a conviction, he would have rejected a plea and

proceeded to trial despite being “without any viable defense” and “highly likely to lose.”

(Id. at p. 367.) The government argued it would have been irrational for the defendant to

seek a trial that would lead to more prison time followed by mandatory deportation (id. at

p. 370), but the Court held that the value of avoiding deportation meant that even a long-

shot attempt at acquittal could be a rational choice where conviction would result in

deportation either way. (Id. at p. 371.) Here, Avena’s position is even easier to accept

because it would have been entirely rational for him to pursue an immigration-safe plea

had he been fully informed.

The People argue that we should nevertheless find Avena’s declaration to be not

credible. They first note that “multiple references in the probation report to [Avena’s]

immigration status” and “immigration-related probation terms” contradict Avena’s

assertion that he never knew that his conviction would cause adverse immigration

consequences. But whatever a probation report might contain regarding immigration

consequences, it would at most suggest that a defendant has learned of those

consequences before sentencing, not prior to trial. (§ 1203, subd. (b)(1) [probation report

is prepared “if a person is convicted of a felony and is eligible for probation”].) What

18
Avena knew after being convicted about immigration consequences is irrelevant to the

present analysis, as by that point Avena would have had no ability to avoid a trial. The

People then argue that Avena’s statement he never knew about immigration

consequences is not credible because it is self-serving and because Avena was convicted

of a felony. (See In re Alvernaz, supra, 2 Cal.4th at p. 945; Evid. Code, § 788.) These

factors weigh against credibility, but they are outweighed here by the corroborating

testimony of both his trial lawyers, neither of whom stated they told Avena he was certain
8
to be removed.

The People’s other arguments fare no better. They contend that there is no

evidence that they would have accepted an immigration-safe plea deal partly because the

prosecution has no federal constitutional obligation to offer a plea bargain at all. (See

Weatherford v. Bursey (1977) 429 U.S. 545, 561 [“there is no constitutional right to plea

bargain; the prosecutor need not do so if he prefers to go to trial”].) This ignores that the

8
Although we find Avena’s statement that he was never informed about certain
removal to be credible, we note that, because of the unique facts of this case, we would
find Avena has satisfied section 1473.7’s requirements even if Roby had told him
removal was certain. Here, no immigration-safe plea existed when Roby represented
Avena, but it did after Lynch, when Kennedy was representing Avena. Kennedy did not
explore or even recognize an immigration-safe plea made possible by that case. A
defendant demonstrates entitlement to relief if prejudicial error prevented his or her
ability to “defend against” adverse immigration consequences. (§ 1473.7, subd. (a)(1).)
Even assuming that Roby told Avena that he was certain to be removed, that would not
have given Avena reason to avoid trial because no immigration-safe plea then existed.
Such an error would not have damaged Avena’s ability to “meaningfully understand”
certain removal under section 1473, subdivision (a)(1), but it would have damaged his
ability to “defend against” it by avoiding trial.

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prosecutor both actually offered a plea bargain and testified about the requirements that

an acceptable plea would have, all of which a plea bargain for burglary and sexual battery

would have satisfied. The People also argue that assault with intent to commit rape is a

so-called “super strike,” but that is not significant here because the prosecutor never

suggested that any plea bargain had to include a guilty plea for a super strike. (See

People v. Jefferson (2016) 1 Cal.App.5th 235, 242 [felonies described in section 667,

subdivision (e)(2)(C)(iv) “are known as ‘super strikes’”]; § 667, subd. (e)(2)(C)(iv)(I).)

And finally, the People’s claim that Avena would have been removed even if convicted

of sexual battery simply misconstrues the record and the law. Although they observe that

aliens who commit crimes of moral turpitude are removable (8 U.S.C. § 1227 (a)(2)(A)(i))

and that sexual battery is a crime of moral turpitude (Gonzalez-Cervantes v. Holder (9th

Cir. 2013) 709 F.3d 1265, 1270), they fail to mention that an alien must commit a crime

of moral turpitude within five or 10 years of entry (depending on whether the alien is a

lawful permanent resident) to be removable on that ground (8 U.S.C.

§ 1227 (a)(2)(A)(i)(I)), and Avena entered the United States more than 10 years before

committing his conviction offenses.

In sum, we find that Avena is entitled to relief under section 1473.7, and the trial

court erred in concluding otherwise.

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III. DISPOSITION

The order denying Avena’s motion to vacate his conviction is reversed. The

matter is remanded to the superior court with instructions to grant the motion and vacate

the conviction.

CERTIFIED FOR PUBLICATION

RAPHAEL
J.

We concur:

MILLER
Acting P. J.

LEE
J.

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