Filed 6/24/21 P. v. Cuevas CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F076129 Plaintiff and Respondent, (Kern Super. Ct. No. BF077878B) v. ENRIQUE N. CUEVAS, OPINION Defendant and Appellant. THE COURT* APPEAL from an order of the Superior Court of Kern County. Susan M. Gill, Judge. Jennifer M. Sheetz, for Defendant and Appellant. Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Defendant and Respondent. -ooOoo- * Before Franson, Acting P.J., Meehan, J. and De Santos, J. INTRODUCTION “Defendants who lack United States citizenship sometimes face not only penal sanctions but also harsh immigration consequences if convicted. Because of this, pleas accepted in the shadow of deficient advice about the risks of deportation can have ‘dire’ repercussions. [Citation.]” (People v. Vivar (2021) 11 Cal.5th 510, 533 (Vivar).) “[W]hen long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States. [Citation.] Because the prospect of deportation ‘is an integral part,’ and often even ‘the most important part,’ of a noncitizen defendant’s calculus in responding to certain criminal charges [citation], both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient. [Citations.]” (Vivar, supra, 11 Cal.5th at p. 516, italics added.)1 Penal Code section 1473.7 is one of the remedies enacted by the Legislature.2 (Vivar, supra, 11 Cal.5th at pp. 517, 523.) “[L]awmakers considered the problem faced by [noncitizens] who were unaware of the immigration consequences posed by a plea entered many years earlier. [Citation.] They did so by enacting section 1473.7, which ‘create[d] an explicit right for a person no longer imprisoned or restrained[]’ ” to file a motion to vacate the conviction that triggered their removal. (Vivar, supra, 11 Cal.5th at pp. 523, 525–526.) As applicable to this case, the moving party may move to vacate his prior conviction under section 1473.7 if he proves by a preponderance of the evidence 1Amendments to the Immigration and Naturalization Act (INA) have “ ‘eliminated the distinction between deportation and exclusion proceedings, replacing them with a new, consolidated category – “removal.” ’ [Citation.]” (Ledezma-Galicia v. Holder (9th Cir. 2010) 636 F.3d 1059, 1062–1063, fn. 2.) 2 All further references to “section 1473.7” are to the statute contained in the Penal Code. 2. that his conviction is legally invalid because of a prejudicial …
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals