Filed 6/14/22 P. v. Odero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed.

Law Office of Zulu Ali & Associates, Armin Abazari and Zulu Ali for Defendant and Appellant.

Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Adrian R. Contreras, and Tami F. Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

Kennedy Otieno Odero pleaded no contest to a domestic violence offense in 2002. Eighteen years later, he filed a motion to vacate his conviction and withdraw his plea pursuant to Penal Code sections 1016.5 and 1473.7, claiming he was not advised by either the trial court or his defense counsel of the immigration consequences of his plea. (Unlabeled statutory references are to the Penal Code.) We affirm the trial court’s order denying the motion.

BACKGROUND

Odero was born in Kenya in 1965 and came to the United States in 2001. On June 22, 2002, police responded to a domestic violence call to find Odero’s wife, D.O., with a laceration on her forehead.[1] The police report stated that Odero and his wife were on the verge of divorcing, and she asked him to move out. He struck her, lacerating her forehead, and then got a knife from the kitchen and threatened to kill her. Odero was restrained by a family member, allowing D.O. to escape. Odero was arrested and charged with one felony count of domestic violence (§ 273.5, subd. (a)), one felony count of criminal threats (§ 422), and one felony count of assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)). Pursuant to a negotiated plea agreement, Odero entered a plea of no contest to the domestic violence count, the other two counts were dismissed, Odero was sentenced to three years of probation with various conditions including 120 days in county jail and a 52-week batterer’s treatment program, and the prosecutor agreed not to oppose a motion to reduce the offense to a misdemeanor upon successful completion of probation. After completing probation, Odero had his conviction reduced to a misdemeanor pursuant to subdivision (b)(3) of section 17 and expunged pursuant to section 1203.4.[2]

On September 9, 2020, Odero filed a motion to vacate the judgment, arguing the trial court had failed to advise him, as required by section 1016.5, that his plea may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, and that his conviction was legally invalid under subdivision (a)(1) of section 1473.7 because of prejudicial error damaging his ability to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences. In his sworn declaration filed in support of the motion, Odero stated that he “never had any discussions about immigration” with his public defenders in 2002, he “was never advised by any of the attorneys the effects that [his] plea would have on [his] immigration status” or that he “should speak with an immigration attorney,” and that he believes the court failed to advise him that his plea would subject him to “detention or possible denial of relief, voluntary departure, bar from reentry, and/or any other consequences.” Odero further declared that he would not have entered his plea had he been advised of the immigration consequences and instead “would have retained an attorney and taken [the] case to trial or negotiated an alternative plea” and “would have served additional time in custody if it meant” protecting his immigration status.

Odero and his former public defender, Donna Connally, testified at the hearing on his motion. Odero testified that when he entered his plea, his visitor visa had expired, and he was present in the country without lawful status. He testified that he never discussed his immigration status or any immigration consequences of his plea with Connally, she never advised him to consult with an immigration attorney, and he first learned of his plea’s immigration consequences when he was informed by an immigration official at the county jail, transferred to an immigration detention facility, and placed in removal proceedings. In 2019, Odero submitted a petition to adjust his immigration status as a self-petitioning spouse of an abusive United States citizen or permanent resident pursuant to the Violence Against Women Act, and both the 2019 petition and the 2002 removal proceedings are still pending in immigration court. Odero testified that had he known of the immigration consequences, he would not have entered the plea but would have taken the case to trial or “would consult further” to “go for the safer option.”

Odero confirmed that he had received the August 30, 2002, plea declaration form, signed it, and initialed the boxes next to paragraphs 13 and 17. Paragraph 13 states, “if I am not a citizen of the United States, deportation, exclusion from admission to the United States or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest),” but the words “nolo contendere” are circled and the word “may” is crossed out and replaced by the handwritten word “will.” Paragraph 17 states: “I have had sufficient time to consult with my attorney concerning my intent to plead guilty to the above charge(s). My lawyer has explained everything on this Declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes.” Odero testified that he had an opportunity to go over the plea agreement with Connally, but he did not recall any discussion of deportation, exclusion from admission, or denial of naturalization.

Connally testified that she had been a public defender since 1995 and did not independently recall representing Odero in 2002. On the basis of her contemporaneous notes in the public defender file, she testified that she met with Odero before and during his preliminary hearing on July 24. He left two phone messages the week of August 19 asking to meet, and they met on August 27 at the public defender’s office and appeared in court together three days later when Odero entered his plea. Connally was aware before the preliminary hearing that Odero was not a citizen and that he had arrived in the country within the previous year and a half. According to her notes, she discussed immigration consequences with Odero at their meeting on August 27, 2002. Three days later, she filled out and signed the plea declaration form, made the alteration to paragraph 13 replacing the word “‘may’” with “‘will,’” went over each item on the form with Odero, and specifically advised him that he would have adverse immigration consequences as a result of the plea.

Connally explained that it was her practice at the time to ask her client’s immigration status and whether they were working with an immigration attorney. For clients with immigration concerns, Connally would evaluate the possible immigration consequences based on factors such as the nature of the particular offenses charged and their potential sentences. To assist in advising clients about immigration consequences, Connally referred to charts that were available to the public defenders to determine whether an offense is considered an aggravated felony or a crime involving moral turpitude under federal immigration law. If possible, Connally would seek alternative charges or lower sentences and would “try and look at other ways that we can avoid any immigration consequences.”

Connally testified that “at the time, I knew that this charge, 273.5(a), was a problem with immigration.” She understood that Odero’s plea would subject him to possible deportation or denial of reentry if he left the country, and she talked with him about the immigration consequences of pleading to a domestic violence offense and advised him “that this was definitely still a charge where he could, in fact, and may well be deported or face other immigration consequences.” Connally’s notes from their August 27, 2002, meeting stated that Odero had “more concerns with potential for state prison than for deportation” and included “a quote in parenthesis from the defendant, ‘The world is a very large place.’” Based on her review of the preliminary hearing transcript, the testimony presented, and the court’s denial of her request to reduce the charges to misdemeanors, Connally concluded that the plea bargain was “a good deal.”

After hearing argument from counsel, the trial court found that the requirements of section 1016.5 were satisfied by the written plea declaration form that advised Odero of all three immigration consequences listed in the statute and gave him the opportunity to consider those consequences before entering his plea. The court explained that although the transcript of the plea hearing was no longer available, the minute order accepting Odero’s plea referred to the transcript and recorded the court’s findings that Odero had received advisements of each of his rights and understood his rights, the charges, and the penalties. The judge had also signed the plea declaration finding Odero understood the consequences of his plea. The court concluded that “there was substantial compliance with the 1016.5 requirement.” The court also found Odero had not met the requirements of section 1473.7 because the testimony and documents indicated that the plea’s immigration “consequences were communicated, and that Mr. Odero was well aware of those consequences, and made a clear choice of what to do in his case.” The court found that Odero was advised of the immigration consequences of his plea, he met with Connally to discuss his concerns “about prison versus immigration consequences,” the “plea offer seems to align with the benefits of both,” and “the defendant carefully weighed both the benefits and the consequences of taking the plea.” In particular, Connally’s notes of her meeting with Odero three days before the plea hearing indicated she advised him that his plea would have adverse immigration consequences, and Odero’s response “indicating, it’s a big world, that he can go anywhere” showed “that the defendant, Mr. Odero, meaningfully understood what was going on” and believed the plea agreement “was more beneficial to him than the immigration consequences that may be the result.” Accordingly, the trial court denied the motion to vacate the judgment under both section 1016.5 and section 1473.7.

DISCUSSION

Odero maintains that the trial court erred by denying the motion, because he met the requirements to vacate the judgment under sections 1016.5 and 1473.7. We disagree on both points.

I. Odero’s Motion Pursuant to Section 1016.5 Was Properly Denied

“Before a state court accepts a plea of guilty or no contest, section 1016.5 requires that the court advise the defendant that if he or she is not a citizen, the conviction ‘may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.’ (§ 1016.5, subd. (a).)” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287.) “To obtain relief under section 1016.5, a defendant thus must demonstrate that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5, (2) as a consequence of conviction, the defendant actually faces one or more of the statutorily specified immigration consequences, and (3) the defendant was prejudiced by the court’s failure to provide complete advisements. [Citations.] We review the trial court’s ruling denying the motion to vacate judgment for abuse of discretion. [Citation.]” (Ibid.) “On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised.” (People v. Totari (2002) 28 Cal.4th 876, 884.) The advisement need not match the statutory language verbatim; if the defendant is advised of all three enumerated immigration consequences, then the requirement of substantial compliance is met. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Gutierrez (2003) 106 Cal.App.4th 169, 174 (Gutierrez).) No oral advisement is required; a defendant’s signed plea bargain form containing the admonition satisfies section 1016.5. (People v. Bravo (2021) 69 Cal.App.5th 1063, 1072-1073, review granted Dec. 15, 2021, S271782 (Bravo); People v. Araujo (2016) 243 Cal.App.4th 759, 762 (Araujo); People v. Ramirez (1999) 71 Cal.App.4th 519, 523.)

Here, Odero’s 2002 plea declaration clearly satisfies the requirements of section 1016.5 that the court advise the defendant that his plea may result in deportation, exclusion, or denial of naturalization. Odero testified that he reviewed the plea form with counsel, initialed next to the immigration advisement, and signed the form indicating he understood it. Moreover, Connally testified that she “always went through . . . everything on the plea form” with her client and “literally went through every term with [her] client.” (See People v. Arriaga (2014) 58 Cal.4th 950, 963-964 [court records of plea entered 24 years earlier had been destroyed, but prosecutor’s testimony that “it was his practice to always advise defendants of the immigration consequences of pleading guilty or no contest” satisfied requirements of section 1016.5].) The judge also signed Odero’s plea declaration, expressly finding “that the defendant fully understands . . . the consequences of his plea.”

Odero disputes none of this. He argues instead that the printed plea declaration form stating the plea “may have” immigration consequences is per se inadequate under People v. Ruiz (2020) 49 Cal.App.5th 1061 (Ruiz) because it fails to warn that the immigration consequences of the plea are mandatory. Although Odero acknowledges that Connally changed that language to reflect the mandatory immigration consequences by substituting the word “‘will’” for “‘may,’” Odero argues that the alteration was made by defense counsel and therefore cannot satisfy the trial court’s independent duty to advise under section 1016.5. The argument is meritless. The “may have” language printed on Odero’s plea declaration form is taken directly from subdivision (a) of section 1016.5, and Ruiz does not hold that a trial court is required by section 1016.5 to go beyond the statutory admonition contained therein to provide notice that a plea will have mandatory immigration consequences.

The issue before the court in Ruiz was whether the defendant was barred by collateral estoppel from bringing a motion in 2019 to vacate her 1991 plea conviction, but “Ruiz’s motion to vacate was filed pursuant to section 1473.7” and “claimed there were one or more errors by counsel,” not by the trial court. (Ruiz, supra, 49 Cal.App.5th at pp. 1064 & 1067, italics added.) The majority held that Ruiz was not barred from bringing her 2019 motion pursuant to section 1473.7 by her previous unsuccessful “motion to vacate in 2017 [brought] pursuant to . . . section 1016.5.” (Ruiz, at p. 1065.) Ruiz did not alter a trial court’s duties under section 1016.5, which has not been amended since it was enacted in 1977. (See § 1016.3 [enacted in 2015 to codify expanded duties of defense counsel and prosecutors regarding immigration consequences in plea negotiations, but expressly providing that it “shall not be interpreted to change the requirements of Section 1016.5”].) On the contrary, Ruiz relied extensively on People v. Patterson, in which our Supreme Court expressly rejected the expansion of a trial court’s duty to advise of mandatory immigration consequences before accepting a plea. (People v. Patterson (2017) 2 Cal.5th 885, 897 [“to hold that ignorance of specific immigration consequences may constitute good cause to withdraw a plea is not to hold that the trial court is under a duty to provide such case-specific immigration advice”].) Ruiz stands only for the proposition that having received the trial court’s section 1016.5 advisement of possible immigration consequences does not preclude a defendant whose plea triggers mandatory immigration consequences from bringing a motion to vacate pursuant to section 1473.7. (See People v. Vivar (2021) 11 Cal.5th 510, 533 (Vivar); People v. Espinoza (2018) 27 Cal.App.5th 908, 916-917; Bravo, supra, 69 Cal.App.5th at p. 1073.)

In any event, Odero was advised by the court of all three enumerated consequences of his plea as required by subdivision (a) of section 1016.5. That his defense counsel changed the printed admonition form, replacing the word “may” with “will” does not indicate the court failed to meet its obligations under section 1016.5. (See, e.g., People v. Arendtsz (2016) 247 Cal.App.4th 613, 616-617 (Arendtsz) [denying 1016.5 motion where the prosecutor had advised the defendant that the conviction “‘will result in deportation, exclusion from admission to the United States and denial of naturalization’”]; People v. Olvera (2018) 24 Cal.App.5th 1112, 1115-1116 (Olvera) [“the court’s duty under section 1016.5 was satisfied by the waiver form” stating the plea “‘will, now or later, result in my deportation, exclusion from admission or readmission,’ and ‘denial of naturalization and citizenship’”].)

Odero also argues that he is entitled to the statutory presumption of nonreceipt of the required immigration advisements because the record does not show that the court (as opposed to counsel) gave him the required advisements. The argument lacks merit. Subdivision (b) of section 1016.5 provides in relevant part: “Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” Here, the presumption does not apply because the record includes Odero’s plea declaration form containing the required advisement, and Odero testified that he had received it, reviewed it with counsel, initialed the immigration advisement, and signed it to indicate he understood the consequences of his plea. The advisement on the plea form satisfies the court’s obligation under section 1016.5 to advise the defendant of the immigration consequences of the plea. (People v. Quesada (1991) 230 Cal.App.3d 525, 535-536, superseded by statute on another ground as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206, fn. 5.)

Odero also contends that the immigration advisement he received is deficient because it omits the phrase “pursuant to the laws of the United States,” which he argues misleads noncitizen defendants into believing that the state trial court accepting their plea “can and has determined that they will be deported.” Notably, Odero does not claim that he held any such misconception, which would contradict his asserted ignorance of any immigration consequences, nor does he attempt to explain how a defendant could suffer prejudice after accepting a plea agreement with the mistaken expectation it would lead to immediate deportation by the state trial court. (People v. Reardon (2018) 26 Cal.App.5th 727, 740 [“[T]he failure to explain with particularity how a claimed error caused prejudice forfeits the claim.”]; Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 279, 285; In re S.C. (2006) 138 Cal.App.4th 396, 407.) Odero merely asserts without legal authority that compliance with section 1016.5 “cannot be a partial proposition.” We may disregard points asserted in an appellate brief unsupported by reasoned argument and citations to legal authority. (In re A.C. (2017) 13 Cal.App.5th 661, 672-673; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153; Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1190-1191.) In any event, we are not persuaded that the omission of the phrase “‘pursuant to the laws of the United States’” renders the admonition deficient. “The advisement need not be in the exact language of section 1016.5 . . . . Substantial compliance is all that is required.” (Araujo, supra, 243 Cal.App.4th at p. 762; see Gutierrez, supra, 106 Cal.App.4th at p. 173 [rejecting “a rule that any variance from the literal language of the legislation requires a plea to be vacated”].) Admonitions omitting the very same phrase have been held to be substantially compliant with the statute. (See, e.g., Araujo, at p. 762; Arendtsz, supra, 247 Cal.App.4th at p. 617; Olvera, supra, 24 Cal.App.5th at pp. 1115-1116.)

Accordingly, the trial court did not abuse its discretion by denying Odero’s motion to vacate the conviction and withdraw his plea pursuant to section 1016.5.

II. Odero’s Motion Pursuant to Section 1473.7 Was Properly Denied

To prevail on a motion to vacate a conviction and withdraw a plea under subdivision (a)(1) of section 1473.7, the moving party must establish “an error ‘damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences’ of the plea. (§ 1473.7, subd. (a)(1).)” (Vivar, supra, 11 Cal.5th at p. 528.) In addition, the moving party must show the error was prejudicial by “demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. When courts assess whether a petitioner has shown that reasonable probability, they 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.]” (Id. at pp. 529-530.) In reviewing an order on a section 1473.7 motion, “‘an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law,’” giving “particular deference to factual findings based on the trial court’s personal observations of witnesses.” (Vivar, at pp. 527-528.)

Odero’s motion failed to establish either error or prejudice. Odero argues that his declaration and hearing testimony are sufficient to establish his “‘own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.’” (People v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia), quoting People v. Camacho (2019) 32 Cal.App.5th 998, 1009.) Unlike in Mejia, where “the trial court made no express or implied credibility determinations” regarding the defendant’s claim of error, the trial court here repeatedly and unequivocally rejected Odero’s assertions that he was unaware of the immigration consequences of his plea. (Mejia, at p. 872.) The trial court found, contrary to Odero’s testimony, that his plea’s immigration “consequences were communicated, and that Mr. Odero was well aware of those consequences, and made a clear choice of what to do in his case.” The trial court also did not credit Odero’s claim that he was unaware of any possible immigration consequences until he was notified by immigration agents at the county jail and transferred to an immigration detention center. Instead, the court found “the fact that he was taken into custody for immigration purposes, that was part of the immigration consequences” that Odero “knew that he would be facing.” On the basis of all of the evidence presented, the trial court found that Odero “meaningfully understood” the immigration consequences of his plea, “carefully weighed both the benefits and the consequences of taking the plea,” and chose the plea deal that avoided state prison and allowed for the reduction of the offense to a misdemeanor because he believed “that was more beneficial to him than the immigration consequences.”

We agree with the trial court that Odero failed to establish any “error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” (§ 1473.7, subd. (a)(1).) Odero acknowledged in writing that he understood his plea would have mandatory immigration consequences. Connally’s contemporaneous notes of a meeting with Odero reflect that she advised him that his plea would lead to deportation. (See Vivar, supra, 11 Cal.5th at p. 530 [trial counsel’s recollection and contemporaneous notes are important objective corroborating evidence].) The notes further reflect that Odero responded that he was more concerned with the “potential for state prison than for deportation” and that “‘[t]he world is a very large place.’” The evidence thus establishes that Odero meaningfully understood and knowingly accepted the immigration consequences of his plea. The trial court’s implicit finding that Odero’s claims to the contrary lacked credibility is amply supported by the record and entitled to deference. (Vivar, at pp. 527-528.)

Acknowledging that his comment to Connally that “‘[t]he world is a very large place’” undermines his claim that he did not know his plea would subject him to removal, Odero argues that Connally erred by failing to defend against the immigration consequences in her plea negotiations. Odero offers “no evidence, only speculation, that an ‘immigration safe’ plea could have been negotiated.” (People v. Tapia (2018) 26 Cal.App.5th 942, 955; see, e.g., People v. Abdelsalam (2022) 73 Cal.App.5th 654, 665-666.) Connally acknowledged that the case file did not contain notes specifically documenting attempts to seek an immigration-neutral plea, but that omission is insufficient to establish error by plea counsel. (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1136.) Connally also testified that it was her custom and practice at the time to seek alternative charges and reduced sentences to try to avoid immigration consequences if her client had immigration concerns. Odero, however, had told Connally that he was more concerned with the “potential for state prison than for deportation.” Even under current standards that did not take effect until long after Odero’s 2002 plea, defense counsel has a duty to defend against the immigration consequences of a proposed disposition only “when consistent with the goals of and with the informed consent of the defendant.” (§ 1016.3, subd. (a).) The record evidence does not show Connally failed to do that here.

Next, Odero argues that it is reasonably probable that he would not have entered the plea had he been properly advised of its immigration consequences. We disagree. In determining the credibility of a defendant’s claim that he would have rejected the plea bargain, “the court in its discretion may consider factors presented to it by the parties, such as the presence or absence of other plea offers, the seriousness of the charges in relation to the plea bargain, the defendant’s criminal record, the defendant’s priorities in plea bargaining, the defendant’s aversion to immigration consequences, and whether the defendant had reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.” (People v. Martinez (2013) 57 Cal.4th 555, 568 (Martinez).)

Odero points to no objective evidence in support of his claim that avoiding adverse immigration consequences was a priority in his 2002 plea negotiations, and all the record evidence suggests otherwise. In marked contrast to the defendant in Vivar, who had been brought to this country at age six, had been a lawful permanent resident for 40 years, was employed, and had a wife, two children, and two grandchildren, all of whom were United States citizens, Odero had arrived from Kenya at age 36, only 18 months before his arrest, was in the country illegally after having overstayed his visa, was separated from his wife, and submitted no evidence of any ties to the United States. (Vivar, supra, 11 Cal.5th at pp. 520, 530.) Although Odero claims he would have gone to trial or sought an immigration-neutral plea, he does not point to any evidence suggesting such a plea was possible, nor does he in any way attack the strength of the evidence against him or suggest any probability of achieving a more favorable outcome at trial. (Cf. Vivar, at p. 531 [evidence that the defendant “could have entered a plea avoiding mandatory deportation” tended to show prejudice]; Mejia, supra, 36 Cal.App.5th at p. 872 [“lingering questions about the strength of the underlying evidence” against the defendant tended to show prejudice].) Odero does not claim that he ever told his defense counsel the importance he supposedly placed on immigration consequences or asked her to seek an immigration-neutral disposition, and he makes no attempt to explain Connally’s contemporaneous notes indicating he told her that avoiding prison was a greater concern than avoiding deportation. Nor does Odero address the seriousness of the charges against him, each punishable by up to four years in prison, in relation to the plea agreement that required only 120 days in county jail, or why he would have “chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.” (Martinez, supra, 57 Cal.4th at p. 565.) For all of these reasons, Odero’s argument that there is a reasonable probability that he would not have pled guilty if he had understood the plea’s immigration consequences is not supported by the record.

Finally, Odero relies on People v. Lopez (2021) 66 Cal.App.5th 561 for the proposition that the plea declaration, even when altered to reflect that immigration consequences were mandatory, is not a categorical bar to relief and does not satisfy Connally’s obligation to advise him of the immigration consequences of the plea. We reject the argument for two reasons. First, the plea form is not the only evidence that Odero was fully advised, including by counsel, of the immigration consequences of the plea. Rather, Connally’s testimony and contemporaneous notes showed that she discussed those consequences with Odero and that he made clear that he was more concerned about a prison sentence than about deportation. Second, Lopez is distinguishable because plea counsel’s own testimony established that he “did not know which of the charges against Lopez carried immigration consequences and what those consequences were.” (Id. at p. 578.) In contrast, Connally testified that she was aware of the immigration consequences of the charges Odero was facing and advised him accordingly.

We conclude that the trial court properly denied Odero’s motion under section 1473.7.

DISPOSITION

The order denying defendant’s motion to vacate is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

FIELDS

Acting P. J.

RAPHAEL

J.

[1] Although the trial court indicated at the motion hearing that it had located the transcript of Odero’s July 24, 2002, preliminary hearing and had provided copies to the parties, that transcript is not included in the record on appeal. We therefore take the factual summary of the offense from the September 27, 2002, presentence probation report. (See People v. Codinha (2021) 71 Cal.App.5th 1047, 1056, fn. 2.)

[2] “For immigration purposes, a person continues to stand convicted of an offense notwithstanding a later expungement under a state’s rehabilitative law.” (Ramirez-Castro v. Immigration and Naturalization Service (9th. Cir. 2002) 287 F.3d 1172, 1174.)