Filed 6/15/23 P. v. Edouarzin CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, B312551 Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA315445-01 v. LOURDYVES EDOUARZIN, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Reversed and remanded with instructions. Law Offices of Elliott N. Tiomkin and Elliott N. Tiomkin for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent. _________________________ A trial court may vacate the criminal conviction of a noncitizen if a preponderance of the evidence establishes that the conviction 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 conviction or sentence.” (Pen. Code § 1473.7, subd. (a)(1); id., subd. (e)(1).1 To establish prejudicial error, a defendant must demonstrate a “reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.” (People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar); People v. Espinoza (2023) 14 Cal.5th 311, 316 (Espinoza).) In 2021, appellant Lourdyves Edouarzin, a Haitian national, filed a motion to vacate his 2010 convictions for computer intrusion access and false impersonation (colloquially, identity theft), enhanced by a loss of over $150,000. He contended defense counsel gave him no advice as to the adverse immigration consequences of his no-contest pleas and admission, and also failed to investigate and negotiate an immigration- neutral plea agreement. He asserted he never would have taken the plea bargain had he known the charges compelled his deportation. After an evidentiary hearing, the trial court denied the motion because Edouarzin submitted no evidence contemporaneous in time with the plea which supported his assertions. Edouarzin now appeals. We reverse. 1 Undesignated statutory references are to the Penal Code. 2 FACTUAL AND PROCEDURAL BACKGROUND I. The Convictions Appellant was born in Haiti and immigrated to the United States 25 years ago when he was 18 years old. He and his United States citizen wife have a son. He lost 20 members of his family in the Haitian earthquake and has been supporting many of his remaining family members, including his mother. On April 10, 2009, the People filed an amended Information in the Los Angeles Superior Court charging appellant with multiple counts of grand theft of personal property (§ 487, subd. (a)); theft (§ 484e, subd. (d)); and identify theft (§ 530.5, subd. (a)). On January …
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