Prejudicial Error Shown in Motion to Vacate (PC 1473)

In January, 2017, Cesar Alfredo Villalba and his wife were out to dinner and both drank too much.  They began arguing and, in the parking lot of the restaurant, Villalba punched his wife in the face twice and threw her on the pavement, where she struck her face and head.  Another couple intervened to stop the fight.

Mr. Villalba was not a U.S. citizen.  He was born in Mexico in 1979 and came to the U.S. with his parents in 1992. 

Villalba was arrested and later charged with felony domestic violence in violation of Penal Code § 273.5(a).  The complaint also alleged that he inflicted great bodily injury on the victim, his wife.  Villalba’s wife was treated at the hospital. 

The wife told the probation officer that she and Villalba had been together for 14 years and married for three.  They had one child in common and were also raising three of her children.  She denied any prior instances of domestic violence or other issues in their relationship.  She said she did not want a restraining order.

Three months after being arraigned, Mr. Villalba entered a plea of no contest to the charges and agreed to five years of formal probation, conditioned upon serving 365 days in county jail and 52 weeks of domestic violence classes. 

 

When taking his plea in front of Judge LaRonda McCoy in the Norwalk Courthouse, Judge McCoy stated, “I don’t know if this applies to you or not.  I don’t need to know.  I just need to advise you that if you’re not a citizen of the United States, your plea of no contest will result in your deportation . . . Do you understand that?”

Mr. Villalba replied, “Yes, Your Honor.”

Judge McCoy then asked Mr. Villalba about the plea form he signed.  He was asked whether he had understood, considered and gone over with his attorney the consequences of his plea.  Mr. Villalba agreed that he had.  The judge then accepted the plea.

In 2018, after Mr. Villalba entered his plea, the Legislature passed Assembly Bill No. 2867, amending Penal Code § 1473.7 and declaring that section 1473.7 “shall be interpreted in the interests of justice and consistent with the findings and declarations made in Section 1016.2 of the Penal Code.” 

In January 2022, Mr. Villalba filed a motion to vacate his conviction under Penal Code § 1473.7(a)(1).  He attached letters of support from his wife, a United States citizen, his stepdaughters, in laws, a niece, friends and an employer.  He also attached his marriage certificate and birth certificates of his child and his stepchildren and other documents showing his longtime residence in the United States, including that he had become a lawful permanent resident in 2014.

Judge LaRonda McCoy held the hearing on the motion and when defense counsel explained that Mr. Villalba misunderstood the immigration consequences of his plea, Judge McCoy stated, “Counsel, I think we’re getting beyond the scope of what this motion is about.  I understand that there are reasonable alternatives that would not lead to deportation.  I get all of that.  The only . . . issue before the court is what the advisements were. . . The question is was he properly advised?  And the answer is, yes, he was properly advised.”

Judge McCoy then denied the motion.

Mr. Villalba then appealed this ruling to the Second Appellate District Court.  The appellate court first and foremost pointed out that defense counsel for Mr. Villalba misadvised his about the immigration consequences and Judge McCoy did, too, because she stated that the immigration consequences may not apply to him.  Therefore, Mr. Villalba showed there was an error in how the immigration consequences were presented to him.

But this is not enough, according to the Second Appellate District.  Mr. Villalba then had to show that this error was prejudicial, meaning defendant must show a reasonable probability that defendant would have rejected the plea if defendant had corrected understood the actual or potential immigration consequences.  People v. Vivar (2021) 11 Cal. 5th 510, 529. 

To assess this prejudice, the court must consider the totality of the circumstances,  Here, Mr. Villalba knew no life outside of the United States.  He had children here and a wife here.  He had deep ties to the community through his work and 25 years here before his plea.  He went to middle school and high school here.  He stated in a declaration that he would have risked trial to stay in the United States or would have pled to another charge with more time in jail to avoid deportation.

The appellate court therefore reversed the order denying the motion to vacate and remanded the case back to Judge McCoy with instructions to vacate the conviction.

For more information about motions to vacate for immigration purposes, please click on the following articles: