by Douglas Ankney

The Court of Appeal of California, Second Appellate District, reversed a superior court’s denial of Misael Padron’s motion to vacate his conviction for carjacking because he failed to “meaningfully understand, defend against, or knowingly accept” the immigration consequences of his plea.

Background

In April 2016, Juan Estrella stepped away from his automobile while filling the radiator, leaving the keys in the ignition and the engine running. Padron entered the empty vehicle and sat in the driver’s seat. When Estrella confronted him, Padron pushed Estrella aside and drove away, hitting a parked car. Three days later, Padron was charged with numerous felonies, including carjacking (count 1; § 215, subd. (a)), driving or taking a vehicle without consent (count 2; Veh. Code, § 10851, subd. (a)), vandalism (count 3; § 594, subd. (a)), and hit-and-run driving resulting in property damage (count 4; Veh. Code, § 20002, subd. (a)). The complaint alleged as to counts 1 through 3 that Padron had served two prior felony prison terms (§ 667.5, subd. (b)), and as to count 2 that Padron had a prior felony conviction for theft of a vehicle (§ 666.5). (Note: All statutory references are to the California Penal Code.)

At the time of his plea, Padron was experiencing mental health challenges relating to untreated posttraumatic stress disorder (“PTSD”) caused by persecution endured when he was in his home country. He met with his public defender twice while in a holding cell for approximately 10 minutes each time. A contemporaneous note in his counsel’s file described Padron as “still going out nuts.” Padron and his counsel appeared at a scheduled preliminary hearing on May 9, 2016. Padron waived his right to a preliminary hearing and pleaded no contest to carjacking in exchange for a prison sentence of three years and the dismissal of all other charges and allegations. 

Padron signed a Tahl waiver – In reTahl, 460 P.2d 449 (Cal. 1969) (advising trial courts to obtain “express waiver on the record” of rights waived by a criminal defendant before accepting a guilty plea) – in which he initialed a section titled “Immigration Consequences” that read: “I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.” During the plea hearing, the prosecutor said to Padron, “[I]f you are not a citizen of the United States, your conviction in this case will result in your removal, deportation, exclusion from the U.S., and denial of naturalization. Have you discussed the immigration consequences with your attorney?” Padron affirmed that he had. The prosecutor continued, “[D]o you understand that the district attorney’s office will not extend an offer that has no immigration consequences?” Padron answered yes. The court accepted Padron’s plea. Pursuant to his plea agreement, Padron was sentenced to three years in prison.

In November 2022, after Padron had served his prison sentence, he filed a § 1473.7 motion to vacate his conviction, arguing he did not understand the immigration consequences of his plea. Padron included a declaration that stated he was a citizen of Cuba but had been in the U.S. since 2002. He was granted asylum in 2012 because of the persecution for his political beliefs that he experienced in Cuba, including arrests and beatings while handcuffed and hanging from a pole. Padron stated: “Immigration officials are trying to strip me of my asylee status because of this conviction. I need to stay in the United States because I fled persecution from Cuba already. There is no other country I can go to.” He provided a copy of the immigration court’s order granting him asylum.

Padron stated that prior to his plea, the public defender spoke with him “two times for about 10 minutes each time”; “never asked me for my [immigration] status”; “did not talk at all about the immigration consequences of my conviction”; and neither consulted with an immigration attorney nor referred him to one. As a result, Padron “did not have a full understanding of just how dire the [immigration] consequences were.”

Padron declared “If I had properly understood all the immigration consequences of my conviction, I would have been willing to agree to a plea bargain for a more serious charge if it did not have these lifelong immigration consequences. I would have been willing to spend more time in jail. If a plea bargain could not be reached … I would have been willing to go to trial to try to avoid these consequences. I had too much to lose to voluntarily accept a plea that would make me permanently ineligible for a green card.” Padron also stated that at the time of his plea, he was suffering from untreated PTSD, was homeless and paranoid, believing “Cuban officials were after [him] here in the United States.” Padron attached a copy of a 2019 psychological evaluation diagnosing him with PTSD and noting his past use of stimulant drugs.

Padron also provided a declaration from Keli Reynolds, a California attorney specializing in immigration law and the immigration consequences of criminal convictions. Reynolds explained Padron’s carjacking conviction under § 215, subdivision (a), was considered an “aggravated felony” and constituted “a ground of deportability, a bar to naturalization, a statutory bar to asylum, and a ground of mandatory detention.” As a result, Reynolds opined, “Mr. Padron, who is now in removal proceedings, is facing a very significant likelihood of having his asylum status terminated” and “any attempt by Mr. Padron to seek permanent residency (most commonly referred to as a green card) is almost certain to fail.” Reynolds stated that although Padron’s defense attorney warned of “‘potential immigration consequences’ of his plea … the aggravated felony consequences of the plea are mandatory.” Reynolds also noted Padron could have pleaded to different charges carrying the same sentence but with lesser immigration consequences, including “a violation of Penal Code § 136.1(b) [witness intimidation] and/or Penal Code § 237 [false imprisonment],” or additional pleas to Vehicle Code § 10851 [theft and unlawful driving of vehicle] and/or Penal Code § 594 [vandalism], i.e., one of the original charges.

Padron also stated he was employed full-time as a cook in San Francisco, with two daughters who had “status to be in the United States,” and wished to obtain permanent residency “and petition for my daughters as soon as I can.” He included a note from the public defender’s file at the time of his plea that described Padron as “still going out nuts.” Another note from the public defender stated Padron was “advised of potential imm. csqs.” Also included from the public defender’s file were documents showing that the original plea proposal was for three years imprisonment for vandalism and hit and run but that Padron wanted three years on carjacking “even though [defendant] knows (and fully advised) [carjacking] is a ‘future’ strike and is a ‘violent’ offense.”

Finally, Padron’s wife, daughter Karmina, and several coworkers submitted letters dated July 2022 describing Padron as a “profoundly changed” man who had been sober for six years and was involved in his church, sobriety support meetings, with deep friendships with coworkers and living as a dedicated father to his children – supporting them while they were in college. On reply, Padron submitted a declaration from his second daughter Shanthal, dated January 3, 2023, explaining that his daughters and wife had reunited with Padron in San Francisco, and Shanthal was enrolled in a local high school. Shanthal declared, “My dad works two jobs so he can pay all the expenses our family has.… My mom only works part time. My dad is the main breadwinner for our family. My dad has made a commitment to me and my sister to support our dream of being college graduates. He doesn’t want us to work so that our focus is 100% on school.… We would be devastated if my dad was deported.”

The People opposed Padron’s motion to vacate his plea, arguing Padron had signed a Tahl waiver, and during the plea colloquy, Padron had acknowledged discussing immigration consequences with his attorney.

At a hearing on the motion, the superior court denied the motion, concluding that Padron knew of the immigration consequences based on the Tahl waiver and based on the prosecutor’s statements at the plea hearing. The court suggested it would have preferred to see “something from [Padron’s public defender] indicating that he did not explain [the] immigration consequences.” The court determined Padron knew of the immigration consequences because “the Tahl waiver states [Padron] would be deported” and “the prosecution had stated they w[ould] not extend an offer that has no immigration consequences.” Padron timely appealed.

Analysis

The Court began its analysis by discussing § 1473.7, which allows a person who is no longer in criminal custody to move to vacate a conviction if it is invalid due to prejudicial error impairing the ability to meaningfully understand, defend against, or knowingly accept immigration consequences. § 1473.7(a)(1).) Relief requires a preponderance showing of such error, plus that the conviction causes or risks removal or denial of immigration benefits. § 1473.7(e)(1).)

Error focuses on the defendant’s subjective misunderstanding, such as not knowing a plea triggers mandatory deportation and exclusion. People v. Mejia, 36 Cal. App. 5th 859 (2021); People v. Alatorre, 70 Cal. App. 5th 747 (2021) (“a petitioner’s own subjective error qualifies for relief”). No proof of ineffective assistance is needed. See § 1473.7(a)(1); People v. Ruiz, 49 Cal. App. 5th 1061 (2020).

The Court stated that prejudice exists if there is a reasonable probability – more than an abstract possibility, sufficient to undermine confidence in the outcome – the defendant would have rejected the plea if aware of immigration consequences. People v. Vivar, 11 Cal.5th 510 (2021); People v. Carrillo, 101 Cal. App. 5th 1 (2024). This considers the totality of circumstances, including U.S. ties, deportation avoidance priority, plea priorities, and immigration-neutral disposition possibility, according to the Court. Vivar. 

Turning to the present case, the Court concluded that Padron showed by a preponderance of the evidence that mental health issues and counsel’s failure to advise on mandatory consequences, including asylum impact, caused misunderstanding regarding the immigration consequences to Padron. Padilla v. Kentucky, 559 U.S. 356 (2010) (“when the deportation consequence [of a conviction] is truly clear … [counsel’s] duty to give correct advice is equally clear”).

The Court stated that the “mandatory immigration consequences of Padron’s conviction were plain,” noting that carjacking was clearly a crime of violence and an aggravated felony. Aggravated felonies trigger mandatory deportation or exclusion, and they are grounds for the termination of asylum and categorically prevents future naturalization, the Court explained. People v. Curiel, 92 Cal. App. 5th 1160 (2023); see Moncrieffe v. Holder, 569 U.S. 184 (2013); 8 U.S.C. § 1227(a)(2)(A)(iii)) [asylum termination]; 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i) [asylum denial]; 8 C.F.R. § 316.10(b)(ii) [naturalization bar].

The Court determined that Padron’s declaration and counsel’s notes confirm unawareness based on the following facts: no status inquiry, no full discussion, only “potential” consequences advised on plea day despite earlier talks, no asylum mention or immigration consultation. This failure to detail mandatory detention, naturalization denial, and deportation to a persecuting country constituted error, according to the Court. Curiel (error where no explanation of mandatory removal barring status); Vivar (“potential” advice insufficient for mandatory deportation).

Mental health further evidenced subjective misunderstanding: Padron attested to untreated PTSD, mental/physical distress, and impaired comprehension; notes described him as “going out nuts”; and 2019 evaluation confirmed PTSD, noting past stimulant use. People v. DeMontoya, 85 Cal. App. 5th 1159 (2022) (mental health evidence allowable for misunderstanding).

The Court explained that the Tahl waiver and prosecutor’s colloquy – reiterating deportation/exclusion/naturalization risks for noncitizens and no immigration-neutral offers – were not sufficient for Padron to subjectively understand the immigration consequences of his plea. They do not replace counsel’s case-specific duty to advise client of the immigration consequences of pleading guilty. People v. Manzanilla, 80 Cal. App. 5th 891 (2022).

Under the totality, Padron showed a reasonable probability he would have rejected the plea if aware of asylum impacts, the Court ruled.

The Court reasoned that strong U.S. ties made deportation integral to his decision on whether to accept the plea deal: 14 years’ residence by 2016; 2012 asylum after persecution; no Cuba ties; high deportation aversion corroborated by asylum grant proving unwillingness to return due to political persecution. Padron’s goals included permanent residency and sponsoring daughters who eventually joined him in 2023, and his connections to his church, support groups, and coworkers support that “his community ties were important to him at the time of his plea.” People v. Espinoza, 522 P.3d 1074 (Cal. 2023).

Upon considering the totality of circumstances, the Court ruled that Padron raised “more than an abstract possibility” he would have rejected his plea deal had he correctly understood the immigration consequences, particularly given his asylum status. Carrillo.

Conclusion

Accordingly, the Court reversed the order denying the § 1473.7 motion; remanded to grant the motion; vacated the conviction; and allowed Padron to withdraw his plea and enter a different plea. See: People v. Padron, 109 Cal. App. 5th 950 (2025).  

Subscribe today

Already a subscriber? Login