Filed 3/22/22 P. v. Argomaniz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Randy Edwards, Judge.

Christopher Lionel Haberman for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Eliseo Argomaniz appeals the denial of his unopposed motion under Penal Code section 1473.7, subdivision (a)(1)[1] to vacate his 2006 guilty plea. The superior court determined the motion was untimely and the evidence was not sufficient to demonstrate Argomaniz’s own error in understanding the immigration consequences of his plea.

First, the timeliness of a motion to vacate a plea is governed by subdivision (b) of section 1473.7. (People v. Perez (2021) 67 Cal.App.5th 1008, 1013 (Perez).) Under subdivision (b)(1) of section 1473.7, a motion “shall be deemed timely filed” if the moving party “is no longer in criminal custody” and the exception in subdivision (b)(2) does not apply. Here, Argomaniz is no longer in custody and the events that trigger the exception have not occurred. Therefore, Argomaniz’s motion must be deemed timely under the plain meaning of the mandatory rule in subdivision (b)(1) of section 1473.7.

Second, applying the independent standard of review described in People v. Vivar (2021) 11 Cal.5th 510 (Vivar) to the cold record, we conclude Argomaniz has demonstrated the existence of an error that was both prejudicial and damaging to his ability to meaningfully understand and accept the immigration consequences of his guilty plea. The claim of prejudice is corroborated by objective evidence of his strong personal ties to the United States at the time of his plea.

We therefore reverse the order denying the section 1473.7 motion.

FACTS

Argomaniz’s parents were born in Mexico in 1942. He was born in Mexico in December 1978. His father came to the United States in the 1980’s looking for work. Argomaniz’s mother brought him and his two siblings to the United States to reunite the family. His parents and his siblings became lawful permanent residents in the 1990’s.[2] Argomaniz’s permanent resident card states he has been a resident since June 10, 1992—that is, since he was about 13 and a half years old.

The family settled in California, where Argomaniz attended middle school and high school. After high school, Argomaniz worked at a dairy farm for about two years. After that job, he went to work in construction with his brother, and he has been working in construction ever since.

Argomaniz is married and has three children who are citizens of the United States. His oldest son and daughter were born in Orange County in June 2003 and June 2004, respectively. In 2004, his oldest son was diagnosed with paralysis. Argomaniz’s youngest son was born in Kings County in June 2005.

In January 2005, a felony complaint was filed in Orange County Superior Court charging Argomaniz with one felony count of violating section 484b, diversion of construction funds, and one misdemeanor count of violating Business and Professions Code section 7028, subdivision (a) by acting as a contractor without having a valid license from the State Contractor’s License Board. The first count alleged that on July 31, 2004, Argomaniz received more than $1,000 for the purpose of paying for services, labor and materials and willfully failed to apply the funds for that purpose and, instead, wrongfully diverted the funds to another use. At the time of the violations alleged, Argomaniz was 25 years old.

In July 2005, Argomaniz received a letter stating a warrant had been issued for his arrest. Later that month, Argomaniz went to court where he met and retained attorney Christopher Koch. Argomaniz entered not guilty pleas to both counts. Koch and Argomaniz spoke to each other using English, and Koch did not ask Argomaniz whether he was a citizen or resident of the United States.

On April 18, 2006, Argomaniz appeared with counsel at a preliminary hearing, withdrew his previously entered not guilty pleas, and pled guilty to both counts. The minutes from the hearing include an entry stating Argomaniz was “advised of the possible consequences of plea affecting deportation and citizenship.”[3]

In addition, Argomaniz and his attorney also signed a four-page form titled “ADVISEMENT AND WAIVER OF RIGHTS FOR A FELONY GUILTY PLEA.” Argomaniz wrote his initials next to more than 20 items on the advisement form, including paragraph 11 which stated: “Immigration consequences: I understand if I am not a citizen of the United States, my conviction of the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” He also initialed paragraph 20 of the form, which acknowledged that he had a full understanding of the advisement and freely and voluntarily entered the guilty plea. The signature of Argomaniz’s attorney appeared below paragraph 23 of the form, which included a sentence stating: “I have discussed the possible sentence ranges and immigration consequences with defendant.”

Paragraph 17(i) of the advisement form included a handwritten sentence stating that if Argomaniz paid the total loss of $18,000 to the victim in a timely manner, he would get a section 17, subdivision (b) motion by the People for the reduction of the felony to a misdemeanor. This sentence was crossed out, but it shows that the possibility of reducing the felony to a misdemeanor was a subject raised and considered in connection with the plea agreement.

After entry of the plea, the superior court suspended the imposition of sentence, placed Argomaniz on three years of formal probation, and imposed several conditions. One of the conditions required monthly payments to Jose Hernandez until a total of $18,000 in restitution was paid. Other conditions required Argomaniz to “maintain residence as approved by Probation Department,” to submit to a search and seizure at any time by any law enforcement officer, to report to his probation officer forthwith, to submit to drug testing as directed by his probation officer, to obey all laws, orders, rules, and regulations, and not to associate with anyone disapproved by his probation officer. These terms of probation are listed here because they are least consistent with immediate deportation to Mexico.

In the spring of 2007, the case was transferred to Kings County.

In August 2017, after his parents became naturalized citizens, Argomaniz filed a petition for reduction to misdemeanor under section 1170.18, subdivision (f). In November 6, 2018, the superior court issued an order granting the petition and reduced Argomaniz’s felony conviction for diversion of construction funds (§ 484b) to a misdemeanor. (See § 1170.18, subds. (f), (g).)

In November 2019, Argomaniz sought legal advice about becoming a naturalized citizen. The attorney Argomaniz hired advised him that his conviction was considered an aggravated felony[4] and that if he applied for citizenship, the application would be denied. The attorney also stated that the denial of the application would lead to the issuance of a notice to appear before an immigration judge; that Immigrations and Customs Enforcement (ICE) could detain him at any time without the possibility of bail until he was removed from the United States; and that ICE’s only option was to remove him from the United States to Mexico.

PROCEEDINGS ON MOTION

On January 15, 2020, Argomaniz filed a motion under section 1473.7, subdivision (a)(1) to vacate his conviction for diversion of construction funds in violation of section 484b. The prosecution did not file an opposition.

On March 20, 2020, a hearing was held on the motion. At the hearing, the superior court stated no opposition had been filed and informed Argomaniz’s attorney that “my issue is I don’t have a copy of the transcript of the guilty plea, and I do want to review that before I make any decision on this case. And I know that’s an Orange County case where the plea was entered.” The court gave counsel 90 days to file a supplemental brief with a copy of the transcript.

In June 2020, Argomaniz’s attorney sent the superior court a letter attaching a written statement from the court reporter present at the April 18, 2006 hearing when Argomaniz entered his guilty plea. The court reporter stated her notes from the proceeding had been destroyed because more than 10 years had passed since the proceeding was held.

On June 26, 2020, the superior court held a hearing on the section 1473.7 motion. No witnesses were called, and no argument was presented by the deputy district attorney who appeared at the hearing. Argomaniz was not personally present in court, but was represented by his attorney, who appeared by CourtCall.

At the hearing, the superior court described the history of the case and explained the reasons why it intended to deny the motion. As to the timeliness of the motion, the court stated (1) a motion to vacate a plea must be filed with reasonable diligence after the later of notice to appear in immigration court or notice of a final removal order, (2) Argomaniz had not shown that he had been notified of, or threatened with, deportation, and (3) 13 years had gone by since his plea and the hearing transcripts had been destroyed. Based on these facts, the court concluded Argomaniz did not bring his motion within a reasonable time.

As to the merits of the motion, the superior court stated the issue was whether Argomaniz’s “defense attorney … provided advice about the immigration consequences.” The court stated the case was on point with People v. Olvera (2018) 24 Cal.App.5th 1112,[5] a case in which the court denied the defendant’s motion to withdraw “his 2005 plea because the defendant did not establish deficient performance by his trial counsel.” The superior court also distinguished Padilla v. Kentucky (2010) 559 U.S. 356 on the ground the defense attorney in that case had failed to advise the defendant of deportation consequences and also told the defendant not to worry about deportation.

Argomaniz’s attorney responded to the superior court’s stated rationale for denying the motion by asserting the motion was brought under section 1473.7, not section 1016.5, and the undisputed fact that the statutory advisement had been given did not resolve the matter because a defendant’s own error provided a basis for relief under section 1473.7. The attorney supported this interpretation of section 1473.7 by citing to People v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia) and Camacho, supra, 32 Cal.App.5th at page 1009. On the issue of timeliness, the attorney correctly asserted that a defendant was eligible for relief under the amended version of section 1473.7 even if there was no notice to appear and no initiation of deportation proceedings.

The superior court replied to the attorney’s argument by stating “the Court does not find that there’s any evidence of the defendant’s own error that is sufficient to overcome the presumptions of all the documents that the Court has before it. Based on that, the motion is denied.” An unsigned minute order was filed after the hearing and stated: “Court orders Motion to Vacate Conviction pursuant to Penal Code 1473.7 denied. Additional arguments by respective Counsel.… Court confirms Motion is denied.”[6] Argomaniz timely appealed.

DISCUSSION

I. OVERVIEW OF SECTION 1473.7

In 2016, the Legislature adopted section 1473.7 to make relief available “to certain immigrants who accepted pleas without understanding the immigration-related consequences of such decisions.” (Vivar, supra, 11 Cal.5th at p. 528.)

A. Grounds for Relief

The version of subdivision (a) of section 1473.7 in effect when the motion was filed and heard in 2020 stated:[7]

“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: [¶] (1) 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. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (Former § 1473.7, subd. (a)(1).)

The moving party has the burden of proof by a preponderance of the evidence. (§ 1473.7, subd. (e)(1); Vivar, supra, 11 Cal.5th at p. 517.) In accordance with the statutory text, a defendant must demonstrate (1) an “error” occurred, (2) the error damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the plea, and (3) the error was “prejudicial.” (Former § 1473.7, subd. (a)(1).)

B. Timeliness of the Motion

Motions under section 1473.3, subdivision (a)(1) “are ordinarily brought many years after the plea.” (Vivar, supra, 11 Cal.5th at p. 526 [motion brought nearly 16 years after plea was entered]; see Alatorre, supra, 70 Cal.App.5th at p. 766 [a 2020 motion to vacate a 2008 guilty plea was timely as a matter of law].) The timeliness of the motion is governed by subdivision (b) of section 1473.7, which states:

“(1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody.

“(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:

“(A) The moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization.

“(B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.” (§ 1473.7, subd. (b), italics added.)

In Perez, supra, 67 Cal.App.5th 1008, this court addressed the meaning of these provisions at length and that discussion need not be repeated here. (Id. at p. 1013.) The following interpretation is relevant to this appeal. “f ‘the individual filing the motion is no longer in criminal custody’ and the triggering events specified in subparagraphs (A) and (B) of subdivision (b)(2) of section 1473.7 have not yet occurred, the motion must be deemed timely under the mandatory rule in subdivision (b)(1) of section 1473.7.” ([i]Id. at p. 1016.) Thus, a superior court considers whether the motion was “filed with reasonable diligence after the later of” the triggering events if and only if both triggering events have occurred. (§ 1473.7, subd. (b)(2); Perez, supra, at p. 1016.)

II. THE MOTION WAS TIMELY

In this case, the superior court addressed the issue of timeliness by erroneously stating the motion to vacate “must be filed with reasonable diligence” after the later of notice to appear in immigration court or a final removal order. The court then stated (1) Argomaniz failed to show there was any attempt to deport him; (2) Argomaniz currently resided in the United States (i.e., he had not been removed); and (3) his motion was made more than 13 years after his guilty plea and, as a result, the transcripts of his plea hearing were not available. The court stated that it did “not appear that he has brought this motion within a reasonable time” and that it intended to deny the motion.

First, the record shows that Argomaniz had completed probation and was no longer in criminal custody when he filed the motion to vacate in January 2020. Second, neither of the triggering events described in subparagraphs (A) and (B) of paragraph (2) of subdivision (b) of section 1473.7 have occurred. Argomaniz has not received a notice to appear in immigration court or another type of notice asserting his conviction is the basis for his removal. (§ 1473.7, subd. (b)(2)(A).) Also, he has not received notice of a final removal order. (§ 1473.7, subd. (b)(2)(B).) Because Argomaniz is no longer in custody and the triggering events have not occurred, his motion “shall be deemed timely filed” pursuant to the unambiguous language in subdivision (b)(1) of section 1473.7. (See Perez, supra, 67 Cal.App.5th at p. 1016.) Therefore, the denial of the motion to vacate cannot be affirmed on the ground that the motion was untimely.

III. PREJUDICIAL ERROR RELATED TO IMMIGRATION CONSEQUENCES

A. Standard of Review

A superior court’s decision to grant or deny a section 1473.7 motion is subject to independent review. (Vivar, supra, 11 Cal.5th at p. 526.) Under this standard of review, an appellate court exercises its independent judgment to determine whether the facts satisfy the applicable rule of law. (Id. at p. 527.) Independent review is not the same as de novo review because an appellate court may not second-guess factual findings based on the superior court’s own observations. (Ibid.) Thus, factual findings based on the credibility of witnesses that the superior court heard and observed are entitled to deference. (Id. at pp. 527–528.) In contrast, in a cold record case such as this (i.e., a case where the facts derive entirely from written declarations and other documents), the superior court and appellate courts are, as a practical matter, in the same position and deference is unwarranted. (Id. at p. 528.) “Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.” (Ibid.) Based on the independent standard of review, the Fourth District stated in Alatorre, supra, 70 Cal.App.5th 747, that interpreting the superior court’s comments regarding prejudicial error was unnecessary. (Id. at p. 767.)

In this case, no witnesses testified during the hearings conducted by the superior court in 2020. In addition, the judge who heard the motion was not the judge who accepted Argomaniz’s plea or sentenced him. Because the cold record in this case places us in the same position as the superior court, we will independently review the record and determine whether Argomaniz carried his burden of proving a prejudicial error damaged his “ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty.” (Former § 1473.7, subd. (a)(1); see Alatorre, supra, 70 Cal.App.5th at p. 767.)

B. Defendant’s Own Error

It is now firmly established that a defendant’s own error in understanding the immigration consequences of the plea is a basis for relief under section 1473.7, subdivision (a)(1). (Alatorre, supra, 70 Cal.App.5th at pp. 768–769; Mejia, supra, 36 Cal.App.5th at p. 871; Camacho, supra, 32 Cal.App.5th at p. 1009.) In Alatorre, the Fourth District reviewed the case law and stated: “Later cases have uniformly followed the lead of Camacho and Mejia, concluding that a petitioner’s own subjective error qualifies for relief under the statute if the evidence shows he or she misunderstood the immigration consequences of a plea deal.” (Alatorre, supra, at p. 769.) Applying this precedent, we consider whether Argomaniz has proven by a preponderance of the evidence that he misunderstood the immigration consequences of his plea.

Argomaniz’s December 2019 declaration provides the only direct evidence of his state of mind about the immigration consequences of his plea. It stated that he and his defense attorney spoke in English every time they met, the attorney never asked whether Argomaniz was a citizen or resident of the United States, and the attorney told him the plea bargain was a great offer that included 90 days of house arrest, no jail time, paying the person back, and probation for a few years. The declaration also stated, “I agreed to the plea agreement because I did not know that it had severe immigration consequences.” The declaration addressed Argomaniz’s initials on the advisement form by stating that his defense attorney “just told me to sign and initial where he indicated, but he never explained to me what I was signing. I had very little education and trusted that my attorney knew what he was doing.”

Argomaniz’s declaration also stated that in November 2019 he sought legal advice on becoming a naturalized citizen and the attorney he hired “was the first person to explain to me that my conviction is the worst conviction for an immigrant” because, under immigration law, it is considered an aggravated felony. The attorney also told Argomaniz that because he was an aggravated felon, ICE’s only option was to remove him from the United States to Mexico.

The advisement form Argomaniz signed and initialed in April 2006, which included an immigration advisement, is evidence from which it could be inferred that Argomaniz understood the immigration consequences of his guilty plea when he entered that plea. The advisement form appears designed to comply with section 1016.5[8] and stated the “conviction of the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” This language differs from the text of section 1016.5 because it uses the term “will have” instead of “may have” and uses “the consequence,” which is singular instead of plural.[9]

The advisement given Argomaniz was not as strongly worded as the advisement given to the defendant in Camacho. In that case, at the plea hearing, “the prosecutor stated, ‘If you are not a citizen of the United States your conviction in this case will result in your being deported, excluded from the U.S., and denied naturalization.’ ” (Camacho, supra, 32 Cal.App.5th at p. 1002, fn. 2, italics added.) In Camacho, the appellate court concluded that the advisement could not be taken as irrebuttable proof that the defendant understood and accepted the adverse immigration consequences of his plea. (Id. at p. 1011, fn. 8.)

Our Supreme Court has addressed the legal effect of an advisement under section 1016.5, subdivision (a) in the context of a motion to withdraw the plead under section 1018 on grounds of mistake or ignorance. (People v. Patterson (2017) 2 Cal.5th 885, 889 (Patterson).) The court concluded that such a motion was not categorically barred by the fact the advisement in section 1016.5 had been given. (Patterson, supra, at p. 898.) The court supported this conclusion by stating “[o]ne of the purposes of the section 1016.5 advisement is to enable the defendant to seek advice from counsel about the actual risk of adverse immigration consequences.” (Id. at p. 896.) In other words, in evaluating the general warning given by a court under section 1016.5, the defendant can be expected to rely on counsel’s independent evaluation of the specific circumstances of the case, including the charges, applicable law, the evidence, and the risks and probable outcome of a trial. (Patterson, supra, at p. 896; see People v. Codinha (2021) 71 Cal.App.5th 1047, 1065, fn. 9.) Accordingly, the fact an advisement was given does not necessarily bar Argomaniz’s claim that he subjectively misunderstood the consequences of his plea.

Like the Fourth District in Alatorre, we recognize a defendant does not automatically carry the burden of proving that he or she subjectively misunderstood the consequences of a plea merely by claiming a misunderstanding. (Alatorre, supra, 70 Cal.App.5th at p. 770.) The circumstance surrounding the plea and the defendant’s subsequent behavior must be considered. Here, based on those circumstances and defendant’s subsequent actions, we conclude it was more probable than not that Argomaniz did not meaningfully understand the immigration consequences of a plea.

First, the wording of the advisement was inaccurate or at least ambiguous. (See fn. 7, ante.) Second, the length of Argomaniz’s probation and the numerous conditions imposed would have made little sense if he was going to be immediately deported as a result of the conviction. Consequently, it would have been reasonable for Argomaniz to infer that, as a practical matter, there would be no adverse immigration consequences and he would remain in California on probation.

Third, it is unlikely Argomaniz would have understood in 2006 that subsequently having the felony count reduced to a misdemeanor—a subject that was discussed at the time of the plea—would have no beneficial impact under federal law. In the decade of his plea, the expungement of a state law conviction could eliminate the immigration consequences of the offense if the defendant satisfied the requirements of the Federal First Offender Act (18 U.S.C. § 3607). That changed in July 2011, when the immigration courts and federal courts no longer recognized a record clearance as effective for immigration purposes. (Nunez-Reyes v. Holder (9th Cir. 2011) 646 F.3d 684, 688–690 [federal definition of conviction does not recognize an expungement under state law].)

Fourth, the fact Argomaniz sought legal advice about becoming a naturalized citizen in 2019 also supports the inference that he did not understand that his conviction was classified as an aggravated felony and, even after the conviction was reduced to a misdemeanor, it barred him from becoming a citizen of the United States. (See Patterson, supra, 2 Cal.5th at p. 898 [“ ‘Immigration law can be complex’ ”]; Alatorre, supra, 70 Cal.App.5th at p. 765 [interplay between state criminal proceedings and federal immigration enforcement is aptly called a labyrinth].)

In sum, based on our independent review of the record in accordance with the principles established in Vivar, we find it is more probable than not that Argomaniz did not meaningfully understand or knowingly accept the adverse immigration consequences of his 2006 guilty plea.

C. Prejudice

The next step of our analysis of the merits of Argomaniz’s motion is to determine whether his own error was prejudicial. Section 1473.7 does not contain a definition of “prejudicial.” The meaning of the term was resolved by the Supreme Court in Vivar, when it concluded an error is prejudicial if the defendant “demonstrat[es] a reasonable probability that [he] would have rejected the plea if [he] had correctly understood its actual or potential immigration consequences.” (Vivar, supra, 11 Cal.5th at p. 529.) Courts assess whether a reasonable probability has been shown by considering the totality of the circumstances. (Ibid.) Notwithstanding this inquiry into the totality of the circumstances, the Supreme Court identified certain factors as particularly relevant, including (1) the defendant’s ties to the United States, (2) the importance the defendant placed on avoiding removal, (3) the defendant’s priorities in seeking a plea bargain, and (4) whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. (Id. at pp. 529–530.)

Argomaniz’s declaration asserted that he would not have pleaded guilty if he had fully understood the immigration consequences of the conviction, that he would have rejected the offer and asked his attorney for an alternate solution, and that he would have taken his chances in trial. He references the fact that, in April 2006, he and his wife had three young children under the age of three and their oldest had been diagnosed with paralysis. Argomaniz’s declaration stated: “I would not have accepted a plea that separated me from my family.” He also stated that everyone he cared about was living lawfully in the United States.

A defendant’s assertion that he would have behaved differently but for the misunderstanding of the immigration consequences of the plea is not accepted at face value and must be corroborated with objective evidence. (Vivar, supra, 11 Cal.5th at p. 530.) Here, as in Vivar, the objective evidence consists of details about Argomaniz’s strong personal ties to the United States. These ties are contemporaneous evidence supporting the inference that Argomaniz would have rejected the plea and taken the risk of going to trial to avoid removal from the United States. (See Camacho, supra, 32 Cal.App.5th at pp. 1011–1012 [defendant’s strong ties to this country supported inference that he “would never have entered the plea if he had known that it would render him deportable”].)

At the time of his plea, Argomaniz had been a legal permanent resident of the United States for almost 14 years, more than half of his life. Since 1992, Argomaniz, his parents and his siblings had lived in California. Birth certificates attached to his motion corroborate the existence and age of his children. These personal details, along with his education and work history, provide sufficient corroboration and establish a reasonable probability that Argomaniz would not have entered the plea with dire immigration consequences and, instead, would have risked going to trial if he had known he would be permanently deported as a result of his plea. (Alatorre, supra, 70 Cal.App.5th at p. 771 [defendant’s deep ties to United States established that avoiding deportation would have been a paramount concern; defendant carried his burden of proving prejudicial error and was entitled to relief].)

Based on our independent determination of an error that was both prejudicial and damaging to Argomaniz’s ability to meaningfully understand and accept the immigration consequences of his guilty plea, we conclude his section 1473.7 motion should have been granted. (See Alatorre, supra, 70 Cal.App.5th at p. 771 [reversed order denying the § 1473.7 motion and remanded with directions to grant the motion]; People v. Rodriguez (2021) 60 Cal.App.5th 995, 1006 [reversed order denying defendant’s motion to vacate conviction and remanded with directions to grant motion]; Mejia, supra, 36 Cal.App.5th at p. 874 [reversed order denying defendant’s § 1473.7 motion and remanded to allow him to withdraw his guilty pleas]; Camacho, supra, 32 Cal.App.5th at pp. 1004, 1012 [reversed denial of motion and remanded with instructions to vacate the conviction].)

DISPOSITION

The order denying the section 1473.7 motion is reversed. The matter is remanded and the superior court is directed to file an order granting the motion and vacating the conviction no later than 10 calendar days after the issuance of remittitur.

* Before Franson, Acting P.J., Meehan, J. and De Santos, J.

[1] Unlabeled statutory references are to the Penal Code.

[2] In February 2017, his mother took the oath of allegiance in a ceremony at Fresno and became a naturalized citizen. His father became a naturalized citizen in April 2017.

[3] The reporter’s transcripts from the proceedings in Orange County Superior Court are not available because the court reporter’s notes were destroyed years ago.

[4] When a defendant is convicted of an “aggravated felony” for purposes of federal immigration law, the defendant is rendered both deportable and ineligible for the discretionary forms of relief provided by federal law. (People v. Alatorre (2021) 70 Cal.App.5th 747, 768, fn. 26 (Alatorre), citing Moncrieffe v. Holder (2013) 569 U.S. 184, 187.)

[5] The partial abrogation of Olvera by an amendment to section 1473.7 (Stats. 2018, ch. 825, § 2) is discussed in People v. Camacho (2019) 32 Cal.App.5th 998, 1005–1006 (Camacho). The amendment added the following sentence to section 1473.7, subdivision (a)(1): “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (See Camacho, supra, at p. 1006.)

[6] The superior court did not issue a signed written order. Optional Judicial Council form CR-188 (rev. Jan. 1, 2020), Order on Motion to Vacate Conviction or Sentence, which was drafted for motions under sections 1016.5 and 1473.7, subdivisions (a)(1) and (a)(2), was available for that purpose. In this appeal, we assume without deciding that the superior court’s oral statements about the reasons for its decision satisfied section 1473.7, subdivision (e)(4)’s requirement for an explicit finding.

[7] The amendment adopted by the Legislature in 2021, which became effective on January 1, 2022, is not relevant to the issues presented in this appeal. (See Stats. 2021, ch. 420, § 1.) The amendment replaced the phrase “plea of guilty or nolo contendere” with the broader phrase “conviction or sentence.” (§ 1473.7, subd. (a)(1).)

[8] Section 1016.5, subdivision (a) provides: “Prior to acceptance of a plea of guilty … to any offense punishable as a crime under state law … the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added.)

[9] Based on the use of the singular “the consequence” and the disjunctive “or,” the advisement could be read as meaning only one of the three listed consequences (deportation, exclusion from admission, or denial of naturalization) would be implemented.