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March 4, 2026 Get Citation Alerts Download PDF Add Note

People v. Delgado CA2/6

California Court of Appeal

• Citations: None known
• Docket Number: B337252

• Precedential Status: Non-Precedential

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Combined Opinion

Filed 3/4/26 P. v. Delgado CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B337252
(Super. Ct. No. BA045767)
Plaintiff and Respondent, (Los Angeles County)

v.

ADOLFO DELGADO,

Defendant and Appellant.

Adolfo Delgado appeals the denial of his motion under
Penal Code1 section 1473.7 to vacate his 1991 drug conviction.
We conclude the trial court improperly denied his motion as
successive. We will reverse and remand with instructions.
FACTUAL AND PROCEDURAL BACKGROUND
On or about October 9, 1991, a complaint charged appellant
with transportation, sale, or furnishing of phencyclidine (PCP)
(Health & Saf. Code, § 11379.5, subd. (a)).

1 Undesignated statutory references are to the Penal Code.
On October 28, 1991, appellant waived arraignment and
pleaded not guilty.
On November 19, 1991, appellant pleaded guilty pursuant
to an agreement under which the People would ask the court to
sentence appellant to a three-year “lid” and the case would
proceed in a certain department. During the hearing, the
prosecutor advised: “You should be informed, even though this
does or does not apply to you, if you are not a citizen of the
United States, that a plea of guilty to this charge could result in
your deportation from the United States and your inability to
become a naturalized citizen of the United States. Do you
understand that?” Appellant replied, “Yes.”
On January 14, 1992, the court imposed and suspended the
low term of three years in state prison. The court placed
appellant on formal probation for three years with 180 days in
county jail as a condition of probation.
On April 10, 2018, appellant filed a motion to vacate his
conviction under section 1473.7. Appellant argued his counsel
had been ineffective. The court held a hearing and denied the
motion.
On December 13, 2023, appellant filed another motion to
vacate his conviction under section 1473.7. Appellant declared
that he came to the United States in 1976 as a permanent
resident. His wife is a citizen, and his four children were born in
the United States. Three of the four children were born before
appellant’s 1991 plea.
According to counsel’s December 2023 declaration,
appellant “was brought to ICE (Immigration and Custom
Enforcement) attention in 2013 with the filing of a Notice to
Appear charging him as deportable. . . . The Immigration Judge

2
denied all forms of relief, the Board of Immigration Appeals
affirmed that decision, and an appeal is currently pending before
the Ninth Circuit Court of Appeals.”
Appellant declared his lawyer for the 1991 plea never
informed him that the crime would disqualify him from
remaining in the country and cause his deportation.
On January 17, 2024, the court denied the motion. At the
hearing, the court stated it had “received a motion. I barely
reviewed it, but I don’t know that I need to review it.” The court
explained that it had denied the 2018 motion and “[t]here’s no
reason why this motion should be presented again. . . . So I’m
inclined to deny it today’s date, based on successive and
duplicative filings.” Appellant’s counsel argued a renewed
motion was appropriate given the amendments to section 1473.7
and this division’s opinion in People v. Ruiz (2020) 49 Cal.App.5th
1061 (Ruiz). The court asked if counsel had reviewed the plea
colloquy transcript. Counsel indicated she “pulled what [she]
could” but did not have access to the transcript.
The People had intended to ask for a continuance to run
appellant’s rap sheet, and they had agreed with counsel on a
February date. The court indicated there was no need for a
continuance and that “the colloquy is clear.”
The court stated: “I’m inclined to deny it, counsel. It’s
successive, in this court’s opinion . . . .” The court indicated
counsel should have obtained the plea transcript for the motion.
The court concluded: “So it’s the same set of facts, it’s the same
set of scenario, it’s the same transcript that I cannot change, and
it’s in the same basis that the court based it on before. The
colloquy of the plea was very clear. Denied.”

3
DISCUSSION
Section 1473.7, subdivision (a)(1) authorizes a person no
longer in criminal custody to file a motion to vacate a conviction
or sentence that is “legally invalid due to prejudicial error
damaging [their] ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences of a conviction or sentence.”
“A successful section 1473.7 motion requires a showing, by
a preponderance of the evidence, of a prejudicial error that
affected the defendant’s ability to meaningfully understand the
actual or potential immigration consequences of a plea.” (People
v. Vivar (2021) 11 Cal.5th 510, 517.) “‘[P]rejudic[i]al error . . .
means demonstrating a reasonable probability that the defendant
would have rejected the plea if the defendant had correctly
understood its actual or potential immigration consequences.’”
(People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)
To assess prejudicial error, “courts must ‘consider the
totality of the circumstances.’ [Citation.] ‘Factors particularly
relevant to this inquiry include the defendant’s ties to the United
States, the importance the defendant 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.’ [Citations.] Also
relevant are the defendant’s probability of obtaining a more
favorable outcome if he had rejected the plea, as well as the
difference between the bargained-for term and the likely term if
he were convicted at trial.” (Espinoza, supra, 14 Cal.5th at
p. 320.) “A defendant must provide ‘“‘objective evidence’”’ to
corroborate factual assertions.” (Id. at p. 321.)

4
“We apply independent review to evaluate whether a
defendant has demonstrated a reasonable probability that he
would have rejected the plea offer had he understood its
immigration consequences.” (Espinoza, supra, 14 Cal.5th at
p. 319.) Under that standard, “‘“an appellate court exercises its
independent judgment to determine whether the facts satisfy the
rule of law.”’” (Id. at pp. 319-320.) When “the trial court’s
findings ‘derive entirely from written declarations and other
documents,’ the trial court and the reviewing court ‘“are in the
same position,”’ and no deference is owed.” (Id. at p. 320.)
The parties agree that appellant’s 2023 motion was not
successive of his 2018 motion. Given the intervening amendment
to section 1473.7, we agree with the parties. Effective January 1,
2019, Assembly Bill No. 2867 (2017-2018 Reg. Sess.) “made it
easier to retroactively challenge convictions” based on an
inadequate immigration advisement. (Ruiz, supra, 49
Cal.App.5th at p. 1066.) Significantly, the new law eliminated
the need to meet the requirements of Strickland v. Washington
(1984) 466 U.S. 668 [80 L.Ed.2d. 674]. (Ruiz. at pp. 1066-1067;
§ 1473.7, subd. (a)(1) [“finding of legal invalidity may, but need
not, include a finding of ineffective assistance of counsel”].)
Because the new law “provides a different standard for
challenging and prevailing based on immigration advisement
errors,” the 2018 motion did not bar appellant’s 2023 motion.
(Ruiz, at p. 1069.)
The parties dispute whether the trial court ruled on the
merits. We conclude the trial court denied the motion as
successive, not based on the merits.
At both the beginning and end of the hearing, the court
described the motion as “successive.” The court stated: “There’s

5
no reason why this motion should be presented again. I don’t
think the law says that if you miss the first time and you’re
denied, you get, at any point in time, another shot at this.” The
trial court’s reasoning runs afoul of Ruiz. There, the trial court
similarly determined “that allowing Ruiz to proceed with her
current 2019 motion would give her a second bite of the apple to
challenge her counsel’s mistake that occurred in 1991.” (Ruiz,
supra, 49 Cal.App.5th at p. 1069.) But as Ruiz explained, given
the new law, “this is a different apple.” (Ibid.)
Here, the trial court did also discuss the plea hearing
transcript, indicating the plea “colloquy is clear.” However, the
court did not offer its appraisal of the colloquy as an alternative
basis for denying the motion. Rather, the transcript’s constancy
explained why the motion was successive: “[I]t’s the same set of
facts, it’s the same set of scenario, it’s the same transcript that I
cannot change, and it’s in the same basis that the court based it
on before. The colloquy of the plea was very clear. Denied.”
This analysis fails to recognize that even when the facts
remain the same, a change in the legal standard can produce a
different result. Thus, even if the plea transcript remained the
same, the amendment to section 1473.7 provided grounds for a
new motion. Appellant was entitled to the trial court’s full
consideration of his motion, which conflicts with the trial court’s
statement it “barely reviewed” the motion. As in Ruiz, we will
reverse and remand for the trial court to hear and consider the
motion on the merits. (Ruiz, supra, 49 Cal.App.5th at p. 1070
[“Ruiz is entitled to a hearing on the merits”]; § 1473.7, subd. (d).)
Ruiz did not conduct a harmless error analysis pursuant to
People v. Watson (1956) 46 Cal.2d 818.

6
We cannot conclude the error was harmless, assuming such
analysis is appropriate here. The plea colloquy shows the
prosecutor’s advisement pursuant to section 1016.5 was
inadequate in at least one respect—it failed to mention exclusion
from admission to the United States. (See § 1016.5, subd. (a).)
And not even a correct section 1016.5 advisement precludes
section 1473.7 relief. (Espinoza, supra, 14 Cal.5th at p. 320.) The
deficient in-court advisement by the prosecutor in this case lends
credence to appellant’s declaration as to his own lawyer’s failure
to inform. Especially given appellant’s years living in the United
States, his permanent resident status, and the citizenship of his
wife and three children at the time of his plea, there is a
reasonable probability a result more favorable to appellant would
have been reached absent the trial court’s error in denying the
motion as successive.
Appellant requests that we order a different judicial officer
be appointed to hear the matter on remand. We decline to do so.
“An appellate court must exercise its power to disqualify a judge
under [Code of Civil Procedure section 170.1, subdivision (c)]
sparingly, and only when the interests of justice require it.”
(People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079.)2
Although the trial court erred in denying appellant’s motion as
successive, “‘[m]ere judicial error does not establish bias and
normally is not a proper ground for disqualification.’” (In re

2 Code of Civil Procedure section 170.1, subd. (c) provides:

“At the request of a party or on its own motion an appellate court
shall consider whether in the interests of justice it should direct
that further proceedings be heard before a trial judge other than
the judge whose judgment or order was reviewed by the appellate
court.”

7
Tuilaepa (2025) 108 Cal.App.5th 1262, 1283.) “We find nothing
in the record that demonstrates actual bias or the appearance of
bias . . . .” (Lablanc, at p. 1080.) Thus, we deny the request to
appoint a different judicial officer on remand.
DISPOSITION
The order denying the motion is reversed, and the matter is
remanded to the trial court with instructions to hear and consider
appellant’s section 1473.7 motion on the merits. We express no
view as to the proper outcome for the hearing.
NOT TO BE PUBLISHED.

CODY, J.

I concur:

BALTODANO, J.

8
YEGAN, A.P.J., dissenting:
I respectfully dissent for the reasons stated in People v.
Ruiz (2020) 49 Cal.App.5th 1061, 1070-1072.)
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.
Mildred Escobedo, Judge
Superior Court County of Los Angeles

---

Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Christopher G. Sanchez and Charles
Chung, Deputy Attorneys General, for Plaintiff and Respondent.