The California Supreme Court has determined that denials of motions to vacate under Penal Code section 1473.7 should be reviewed by appellate courts under an independent review standard. ‘“Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. When courts engage in independent review, they should be mindful that ‘independent review is not the equivalent of de novo review .’ An appellate court may not simply second-guess factual findings that are based on the trial court’s own observations.” “In section 1473.7 proceedings, appellate courts should similarly give particular deference to factual findings based on the trial court’s personal observations of witnesses. Where, as here, the facts derive entirely from written declarations and other documents, however, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, ‘the trial court and this court are in the same position in interpreting written declarations’ when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.”
The court also clarified the prejudice requirement for a motion to vacate. “So: showing prejudicial error under section 1473.7, subdivision (a)(1) means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. When courts assess whether a petitioner has shown that reasonable probability, they consider the totality of the circumstances. Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.” The court noted that a defendant’s ties to the United States and counsel’s notes or recollections of the case all “constitute contemporaneous objective facts that corroborate [the defendant’s] concern about the immigration consequences of his plea options.”
Finally, the court noted that a plea form that advises a defendant that certain immigration consequences may result from a plea does not mitigate the lack of proper advice from counsel on these consequences.
The full text of People v. Vivar can be found here: