Filed 3/10/21 P. v. Garnica CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE, F077526 Plaintiff and Respondent, (Super. Ct. No. VCF234006) v. GERARDO VARGAS GARNICA, OPINION Defendant and Appellant. APPEAL from an order of the Superior Court of Tulare County. Gerald F. Sevier, H. N. Papadakis* and Gary L. Paden, Judges.† Jennifer M. Sheetz for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Retired Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. † Judge Sevier presided over defendant’s plea and sentencing hearings and ruled on defendant’s 2011 motion to withdraw his plea. Judge Papadakis ruled on defendant’s 2015 petition to dismiss his conviction. Judge Paden ruled on defendant’s 2018 motion to vacate his conviction. In 2010, defendant Gerardo Vargas Garnica pled no contest to possession of methamphetamine with intent to sell, which subjected him to mandatory deportation and permanent exclusion from the United States without the possibility of reentry. On appeal, he contends the trial court abused its discretion in denying his Penal Code section 1473.71 motion to vacate his conviction. He argues his plea counsel was ineffective in failing to inform him of the immigration consequences of his plea and in failing to seek an immigration-neutral plea bargain. Defendant further argues the trial court misunderstood the facts and the law. Based on the recent amendment to section 1473.7, we requested supplemental briefing. Defendant now argues he is not required to establish ineffective assistance of counsel under the amended law, but needs to show only that he did not understand the immigration consequences of his plea and was prejudiced by that misunderstanding. The People respond that even under the amended statute, defendant has failed to prove prejudicial error. We reverse the trial court’s order denying defendant’s section 1473.7 motion to vacate the conviction and remand for a hearing on the merits of the motion, to be considered under the amended law. BACKGROUND On March 4, 2010, defendant was detained when officers executed a search warrant for narcotics at his residence. Six juvenile children were present and residing at the residence. Defendant walked the officers to an outside water heater and told them the location of the narcotics. The officers found several packages of methamphetamine weighing a total of 42 grams and a digital scale behind a piece of drywall. They also 1 All statutory references are to the Penal Code unless otherwise noted. 2. found $1,140 in cash …
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