Filed 9/28/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E068282 v. (Super.Ct.No. INF1202696) EDGAR ESPINOZA, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Alfonso Fernandez (retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Charles Everett Stafford, Jr., Judges. Reversed with directions. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent. 1 FACTUAL AND PROCEDURAL HISTORY A. PROCEDURAL HISTORY On October 29, 2012, a complaint charged defendant and appellant Edgar Espinoza with one count of possession of methamphetamine for sale under Health and Safety Code section 11378; on November 6, 2012, defendant pled guilty to the charge. The court suspended imposition of defendant’s sentence and placed him on three years of formal probation with 220 days in local custody. On May 3, 2013, defendant filed a motion to withdraw his guilty plea under Penal Code section 10181 claiming that he was not advised of the immigration consequences of his plea. On October 17, 2013, both defendant and defense counsel, who had represented defendant at his plea negotiations, testified at the section 1018 motion. The trial court denied the motion. On July 8, 2014, defendant admitted a probation violation and was sentenced to 16 months in county jail. On January 23, 2017, defendant filed a motion to withdraw his guilty plea under the newly-enacted section 1473.7. In his motion, defendant represented that he had been “placed into removal proceedings.” In support of his motion, defendant included a notice to appear in removal proceedings. On March 20, 2017, the trial court denied defendant’s motion. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 On May 5, 2017, defendant filed a timely notice of appeal.2 B. FACTUAL HISTORY The facts underlying defendant’s conviction under section 11378 are not relevant to this appeal as the appeal challenges the trial court’s denial of defendant’s motion to withdraw his guilty plea on the grounds that he was not sufficiently advised of the immigration consequences of his plea. DISCUSSION Defendant contends that the trial court abused its discretion in denying his motion to vacate his conviction and set aside his guilty plea under section 1473.7. The People contend that the trial court properly denied defendant’s motion because: (1) section 1473.7 “does not retroactively apply” to defendant; and (2) defendant “was well aware of the immigration consequences of his guilty plea.” For the reasons set forth below, we hold that section 1473.7 does apply in this case, and that the trial court erred in denying defendant’s motion. A. LEGAL BACKGROUND Section 1473.7 provides: “A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence” ...
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