People V Benitez Torres

Filed 7/23/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063400

v. (Super. Ct. No. 15NF0238)

JUAN CARLOS BENITEZ-TORRES, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County,
Larry Yellin, Judge. Reversed and remanded with directions.
Jo Pastore, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Sharon
L. Rhodes and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff
and Respondent.

* * *
Under Penal Code section 1473.7, a person may move to have a
guilty plea vacated, and then be subject to a trial on the charges. 1 The
movant must generally establish (1) he did not meaningfully understand the
immigration consequences of the guilty plea, and (2) he was prejudiced
thereby (there is a reasonable chance he would have rejected the plea).
Prejudice is evaluated under the totality of the circumstances. (People v.
Vivar (2021) 11 Cal.5th 510, 529 (Vivar).)
In January 2015, Juan Carlos Benitez-Torres (Benitez) was 37
years old, his wife was a United States citizen, and he had five children.
Benitez was a lawful permanent resident who was brought to this country at
12 years old. Police stopped a car Benitez was driving, ostensibly because of a
tinted window. The car was not registered to Benitez. Police did a search of
the car and found methamphetamine in hidden compartments.
The People charged Benitez with narcotics offenses. Benitez’s
family hired attorney Kenneth Reed for $15,000. Over the next few months,
five other attorneys appeared on his behalf. One of them waived a
preliminary hearing. Reed only appeared four times on the case, he did not
file a motion to suppress the evidence, and Reed appears to have conducted
essentially no investigation.
In August 2015, Reed advised Benitez to accept a three-year offer
from the trial court. At that time, Reed had an obligation to understand and
accurately explain the immigration consequences of guilty pleas to noncitizen
clients. (See Padilla v. Kentucky (2010) 559 U.S. 356, 360 (Padilla).) Benitez
pleaded guilty and was deported following his release from custody.
In January 2023, Benitez filed a section 1473.7 motion. At a

1
Undesignated statutory references are to the Penal Code.

2
hearing, Reed testified that he did not recall the case, but he ordinarily
advised clients with immigration issues that they may “need to hire an
immigration attorney.” The trial court denied Benitez’s motion.
Under an independent standard of review, we find it likely that
Benitez did not meaningfully understand the immigration consequences of
his plea, and there is a reasonable chance Benitez would have rejected the
plea, and taken his chances at a trial (or at least at a motion to suppress the
evidence), if he had meaningfully understood those consequences.
Thus, we reverse the order of the trial court, which was a denial
of Benitez’s section 1473.7 motion. On remand, we direct the trial court to
vacate Benitez’s convictions, and then to set the matter for trial.

I.
FACTS AND PROCEDURAL HISTORY
On January 26, 2015, at about 4:20 p.m., a deputy was on patrol
with his narcotics dog. The deputy saw a 2004 black Honda car with a dark
tinted window on the driver’s side and initiated a traffic stop. 2
The deputy asked for Benitez’s license, registration, and
insurance. Benitez said he had just purchased the car and had a pink slip
signed by Javier H., but he did not have the car’s registration or proof of
insurance. According to the police, Benitez consented to a search of the car
(Benitez told Reed he did not consent).
Two corporals, two more deputies, and a narcotics investigator
eventually arrived on the scene. Benitez was searched and placed in the back
of a vehicle. A records check revealed Benitez had no outstanding arrest

2
The facts are taken from police reports.

3
warrants. The car was registered to Javier H. with a Fullerton address.
The dog alerted to the presence of illegal narcotics. Hidden traps
were found behind the car’s dashboard and center console. Just over four
kilos of methamphetamine was found hidden in the passenger compartment
and in the trunk. Benitez was arrested and made no statements (the length
of the detention and the search is not detailed in the reports).

Initial Court Proceedings
The People filed a complaint charging Benitez with knowingly
possessing a controlled substance for purposes of sales, and knowingly
transporting a controlled substance. The People alleged the controlled
substance (methamphetamine) exceeded four kilograms.
On January 28, 2015, the trial court appointed counsel to
represent Benitez, who was assisted by an interpreter. Benitez pleaded not
guilty, and the court set bail at $1 million.
On February 5, Benitez appeared in court with his appointed
counsel. The date of the preliminary hearing was continued.
On February 9, Benitez appeared in court with his appointed
counsel. The date of the next hearing was continued.
On February 26, Benitez appeared in court with a retained
attorney, Reed, who substituted in as attorney of record. The date of the
preliminary hearing was vacated, and the matter was continued.
On March 12, Benitez appeared in court with Reed, who
continued the next hearing date.
On April 13, Benitez appeared in court for a continuance with
attorney Richard Curran who specially appeared for Reed.
On June 4, Benitez appeared in court for a continuance with

4
attorney Margaret Mendenhall who specially appeared for Reed.
On July 17, Benitez appeared in court for a continuance with
attorney Christine Simmons who specially appeared for Reed.
On July 27, Benitez appeared in court with attorney Jack N.
Whitaker, who specially appeared for Reed. The court found Benitez
knowingly and voluntarily waived his right to preliminary hearing. Whitaker
joined in the waiver of Benitez’s statutory rights.
On August 4, the People filed an information alleging the same
charges and enhancement alleged in the complaint.
On August 5, Benitez appeared in court with Reed. The court
arraigned Benitez on the information and set a trial date.
On August 19, Benitez appeared in court for a continuance with
attorney Ernest Eady who specially appeared for Reed.

The Guilty Pleas
On August 26, 2015, Benitez appeared in court with Reed. Before
the case was called, Benitez had signed and initialed numerous paragraphs
in a seven-page felony plea form indicating that he was pleading guilty to the
charged crimes and the sentencing enhancement. The form was also signed
by Reed, and a court-certified interpreter.
The document was filled in by hand, in part, stating that the
maximum total sentence was nine years in prison; however, Benitez was
pleading to the court, which indicated it would impose a three-year sentence
(this was not a negotiated plea with the district attorney). The factual basis
of the plea form was also filled in by hand (there is no evidence this was
written by Benitez), stating: “I willfully & unlawfully transported and
possessed for sale over 4 kilograms of methamphetamine.”

5
The form document included the following preprinted language:
“Immigration consequences: I understand that if I am not a citizen of the
United States, my conviction for the offenses charge will have the
consequences of deportation, exclusion from the United States, or denial of
naturalization pursuant to the laws of the United States.”
The plea form also included separate preprinted paragraphs
waiving Benitez’s trial rights: the right to a jury trial, the right to confront
witnesses, the right to testify in his own defense, and the right to present
evidence in his favor. The plea form also included preprinted waivers of
Benitez’s Fourth Amendment rights against unreasonable governmental
searches and seizures, a waiver of his right to have a jury determine certain
sentencing factors, a waiver of his right to appeal “from all decisions and
orders made in my case,” and a waiver of his right to the preparation of a
probation report prior to sentencing.
Benitez initialed the above paragraphs as well as 19 additional
preprinted provisions (e.g., court operations fees, laboratory analysis fees,
drug program fees, DNA sample and testing requirements, the requirement
to register as narcotics offender, etc.).
Reed signed the following statement: “I am the attorney of record
for defendant. I have explained to defendant each of the rights set forth on
this form. I have discussed the charges and the facts with defendant. I have
studied the possible defenses to the charges and discussed those possible
defenses with defendant. I have discussed the possible sentence ranges and
immigration consequences with defendant. I also have discussed the contents
of this form with defendant.”
The trial court called the matter, and made inquiries of Benitez:
“You have a right to a jury trial, to confront and cross-examine witnesses

6
should you have a trial, to testify or not depending on your choice, and the
right to the court’ s free services to subpoena witnesses. [¶] If you are not a
citizen, you will hereafter be deported, denied naturalization or excluded
from the U.S. [¶] Do you understand those rights and agree to waive or give
those rights up in order to enter your plea of guilty?”
After Benitez responded in the affirmative, the court asked, “To
the charges how do you plead, sir?” Benitez said, “Guilty.” The court said, “A
plea of guilty is entered, did we get a resounding guilty in?” After inquiring of
Reed, Benitez again stated, “Guilty.” The court said, “Everybody says guilty, I
love the word, that is why I asked again.” The court then imposed the
indicated sentence of three years, with credit for time served (212 actual
days, plus 213 conduct credits). 3

The Section 1473.7 Motion
On May 3, 2023, Benitez filed a section 1473.7 motion to vacate
his 2015 drug convictions. The People filed an opposition. Benitez later filed a
reply and a request for an evidentiary hearing.
Benitez averred that he was born in Mexico in 1977, he was
brought to the United States when he was 12 years old. Benitez attended
junior high school, but later dropped out of high school. Benitez married his
first wife and fathered four children who are United States citizens. Benitez
later divorced, married his second wife, and fathered another child. Benitez’s
second wife is a United States citizen who helped Benitez obtain his status as
a lawful permanent resident on March 26, 2009.

3
The trial court judge who took Benitez’s plea in 2015 (Robert R.
Fitzgerald), is not the same the trial court judge who denied his section
1473.7 motion in 2023 (Larry Yellin).

7
“I cherish my status as a lawful permanent resident. I wanted to
give back to the United States, the country I love. I started volunteering at
the Nixon Library, Yorba Linda, California. I wanted to become a U.S.
citizen. [¶] . . . Unfortunately, on or about January 26, 2015, I was arrested
for” drug offenses. (Health & Saf. Code, §§ 11378, 11379.)
“I was driving a car that somebody asked me to drive from
Orange County to Los Angeles. The car was not registered in my name. As I
drove the car onto the freeway for a few minutes, I saw helicopter and then
the sheriff department pulled me over. The police asked me to consent to the
search of the car, but I refused and told them that it was not my car. Despite
the foregoing, the police went ahead and ripped the car’s dashboard and
found controlled substance in the car. I was then arrested for transportation
of controlled substance.”
Benitez stated that initially he was represented by a public
defender, but “with my family’s assistance, I hired Mr. Kenneth Reed, a
private attorney to represent me.”
“I was in jail from January 2015 to August 2015 because I
couldn’t make bail. Apart from talking to me in court for a few minutes, Mr.
Reed never came to interview me and get my side of the story so that he could
adequately defend me. [¶] . . . Rather, on about five of the seven court dates, I
was brought to court only to discover that Mr. Reed was absent. An attorney
that I have never met before will then stand up to say that they are making
special appearance for Mr. Reed sometimes because Mr. Reed was out of town
or had another case somewhere else. These attorneys state to the court that
their sole purpose is to postpone my case on Mr. Reed’s behalf. These
attorneys never spoke with me about the issues in my case or expressed any
familiarity with my case. They just ask for continuance.”

8
“Finally, Mr. Reed showed up for the August 26, 2015 court
hearing and told me to plead guilty. He told me that I will be sentenced to
three years in custody. That was the same exact offer the Public Defender got
for me after just two hearings. [¶] . . . I told Mr. Reed that I am a lawful
permanent resident of the United States. [¶] . . . On the day Mr. Reed told me
to plead guilty, . . . I was given an advisement in English and a Spanish
interpreter was translating for me. However, my attorney Mr. Reed never
advised me that my plea was an aggravated felony which meant I was
basically guaranteed to be deported, excluded from the United States, and
denied naturalization.”
On October 6, 2013, the trial court denied Benitez’s motion after
an evidentiary hearing (the relevant evidence and the trial court’s ruling will
be covered in detail in the discussion section of this opinion).

II.
DISCUSSION
Benitez claims that he did not meaningfully understand the
immigration consequences of his 2015 guilty pleas, and he was prejudiced
thereby. Given the totality of the circumstances, we agree.
We apply an independent standard of review. (Vivar, supra, 11
Cal.5th at pp. 524–528.) Under this standard, “an appellate court exercises
its independent judgment to determine whether the facts satisfy the rule of
law.” (Id. at p. 527.) The reviewing court is to give deference to any “factual
findings based on the trial court’s personal observations of witnesses.” (Id. at
pp. 527–528.) However, this deference does not apply to facts derived “from
written declarations and other documents.” (Id. at p. 528.) “Ultimately it is
for the appellate court to decide, based on its independent judgment, whether

9
the facts establish prejudice under section 1473.7.” (Ibid.)
In this discussion, we shall: A) review the relevant principles of
law; B) summarize the proceedings in the trial court; and C) analyze the facts
as applied to the law under an independent standard of review.

A. Relevant Principles of Law
In 2010, the United States Supreme Court held that criminal
defense attorneys have an affirmative obligation to understand and
accurately explain the immigration consequences of a guilty plea to their
noncitizen clients. (Padilla, supra, 559 U.S. at p. 360 [“While once there was
only a narrow class of deportable offenses and judges wielded broad
discretionary authority to prevent deportation, immigration reforms over
time have expanded the class of deportable offenses and limited the authority
of judges to alleviate the harsh consequences of deportation”].)
Consistent with the Supreme Court’s 2010 holding in Padilla,
effective January 1, 2016, the Legislature augmented the Penal Code, stating
that immigration consequences “may be by far the most serious penalty
flowing from the conviction.” (§ 1016.2, subd. (c).) “It is the intent of the
Legislature to codify [Padilla] and related California case law and to
encourage the growth of such case law in furtherance of justice and the
findings and declarations of this section.” (§ 1016.2, subd. (h).)
“‘Defense counsel shall provide accurate and affirmative advice
about the immigration consequences of a proposed disposition, and when
consistent with the goals of and with the informed consent of the defendant,
and consistent with professional standards, defend against those
consequences.” (§ 1016.3, subd. (a).)
Effective January 1, 2017, the Legislature also created an

10
ameliorative remedy for criminal defendants: “A person who is no longer in
custody may file a motion to vacate a conviction or sentence for any of the
following reasons: [¶] (1) The conviction or sentence is legally invalid due to a
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. A finding of
legal invalidity may, but need not, include a finding of ineffective assistance of
counsel.” 4 (§ 1473.7, subd. (a)(1), italics added.)
“Prejudicial error may result from ‘the moving party’s own
mistake of law or inability to understand the potential adverse immigration
consequences of the plea.’ [Citations.] At the heart of the prejudicial error
analysis ‘is the mindset of the defendant and what he or she understood—or
didn’t understand—at the time the plea was taken.’” (People v. Lopez (2022)
83 Cal.App.5th 698, 713–714 (Lopez).)
Our Supreme Court has held that “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.”
(Vivar, supra, 11 Cal.5th at p. 529, italicized added.)
“‘“A ‘reasonable probability’ ‘does not mean more likely than not,
but merely a reasonable chance, more than an abstract possibility.’”’” (Lopez,
supra, 83 Cal.App.5th at p. 714, italics added.) “‘When courts assess whether
a petitioner has shown that reasonable probability, they consider the totality

4
The italicized portion was added by amendment. Prior to that,
courts had routinely interpreted section 1473.7 to require that defendants
must prove ineffective assistance of counsel in order to obtain relief under the
statute. (See Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)

11
of the circumstances. [Citation.] 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.’” (Ibid.)
“And while the probability of obtaining a more favorable result at
trial may be one factor a court considers in determining prejudice, it is not
controlling or necessarily even the most important factor courts consider.
[Citations.] Indeed, the United States Supreme Court has declared that
where avoiding deportation was the deciding factor for a defendant, there is a
reasonable probability that such a defendant ‘would have rejected any plea
leading to deportation—even if it shaved off prison time—in favor of throwing
a “Hail Mary” at trial.’” (Lopez, supra, 83 Cal.App.5th at pp. 714–715.)
Mandatory removal from the United States is a consequence of
being convicted of a crime deemed an aggravated felony under federal
immigration law. (Moncrieffe v. Holder (2013) 569 U.S. 184, 187–188
(Moncrieffe) [an aggravated felon is “conclusively presumed” deportable]) And
long-standing federal “precedents hold that whether a state classifies an
offense as a “misdemeanor” is irrelevant to determining whether it is an
“aggravated felony” for purposes of federal law.” (Habibi v. Holder (9th Cir.
2011) 673 F.3d 1082, 1088.)
“[A] conviction of Health and Safety Code section 11360,
subdivision (a), is not an aggravated felony under immigration law if the
record of conviction . . . shows that the defendant was convicted of ‘offering’ to
transport, sell, furnish, or give away a controlled substance.” (People v.
Bautista (2004) 115 Cal.App.4th 229, 238, fn. 6.)

12
B. The Hearing on the Section 1473.7 Motion
Prior to the section 1473.7 hearing, Benitez had subpoenaed
Reed’s records concerning his case. Benitez’s wife signed a retainer
agreement, which was “through the completion of pre-trial negotiations only.”
Reed’s legal services were purported to include an investigation and the filing
of pretrial motions; however, Reed’s obligations were to be discharged when
Benitez pleaded guilty and was sentenced. Reed was to be paid $15,000 in
total ($2,000 immediately, $5,000 by the following month, and $1,000 per
month for the next eight months).
In the subpoenaed records there was an undated memo to file
stating the People’s offer was a four-year split sentence, and the court’s offer
was a three-year sentence in local custody.5 There were handwritten notes on
a document dated February 26, 2015 (the first time Reed appeared in court),
which state, in part: “No consent to search. Just bought the car 30 minutes
prior. He buys and sells cars.” The records contain no evidence of any
substantive investigation of the underlying facts, no additional notes
concerning the traffic stop, and no thorough interview of Benitez.
On September 29, 2023, the matter was called for a hearing. The
court indicated that Reed’s documents on Benitez’s case had been received
through a subpoena duces tecum (SDT), and the court stated it would release
the documents to the parties. After a recess, the People noted that Benitez
had provided no declaration from Reed. Benitez’s counsel indicated Reed had

5
Under section 1170, subdivision (h), qualified nonviolent
defendants can serve their sentences in local custody for nonviolent crimes.
“‘A split sentence is a hybrid sentence in which a trial court suspends
execution of a portion of the term and releases the defendant into the
community under the mandatory supervision of the county probation
department.’” (People v. Avignone (2017) 16 Cal.App.5th 1233, 1240.)

13
initially “agreed to sign a declaration. [¶] I prepared a declaration and e-
mailed it to him and four, five months later, he didn’t sign the declaration.”
Counsel explained to the court that this was why he resorted to
using the SDT. The court asked, “You would like to subpoena [Reed] to
testify?” Counsel responded, “I already did, your honor.” The court asked,
“Are you asking me to intervene on the fact that he is not currently here to
testify?” Counsel responded, “Yes, your honor, please.” The court then put the
matter over to the afternoon calendar.
Reed later appeared in court and testified. Reed said he had been
a criminal defense attorney for 33 years, and that he had done immigration
work a couple of times incidental to criminal matters.
Reed said that he had represented Benitez, and when he was
asked if his representation was after a public defender had already appeared
on the case, Reed responded, “I don’t remember. But I can look at the record
and see if it was a P.D., but you could have done that as well. [¶] So are you
asking me because you want to know the answer or are you asking me
because you want to know if I know the answer?”
When asked about his recollection of the case, and to rate his
memory from one to ten, Reed said, “Well, I wouldn’t give it any number
because if my recollection of the case was important, I would -- I would read
the case and it would be based upon what I read.” When asked what he
generally remembered, Reed responded: “I’ve tried a number of cases since
then, counsel. What do you want to know?”
After further colloquy, counsel asked the trial court, “Could the
court kindly direct Mr. Reed to answer my question? I don’t want to be forced
to ask the court to rule him a hostile witness, but I’m just trying to get
answers to the question.”

14
Reed eventually testified that he had no independent recollection
of Benitez’s case. Reed said the documents he had submitted pursuant to the
subpoena were his complete records on the matter. Counsel asked, “Did you
recall or did you document anywhere the immigration status of Mr.
[Benitez]?” Reed answered, “No, but I would have asked him at some point.”
When asked whether he discussed a disposition that might have
involved a nondeportable offense (a charge that was not an aggravated
felony), Reed said, “I always talk to the prosecutor about settling the case.
From my quick reading of this case . . . it says that there were four kilos of
methamphetamine, in this county and any county I’ve ever practiced law in,
that ain’t ever going to get you a misdemeanor short of you cooperating and
snitching somebody off, which wasn’t on the table in this case. [¶] So that
prosecutor was talking about prison time.”
Reed went on to say: “So my understanding of my way of
practicing law . . . would necessitate a conversation of me dealing with his
immigration situation. I.e., were you born in the United States? That’s
generally where I go. [¶] And I’m not an immigration attorney. That’s usually
what I say. You may need to hire an immigration attorney if that’s what your
concern is in this case.”
Reed clarified, “If that issue comes up. But I also have to advise
them that there are immigration consequences with pleading guilty to a
felony. I may even talk to them about factually having four kilos of
methamphetamine and crossing the border . . . presumably being . . . [an] . . .
alien in the United States is not generally something conducive to staying in
the United States. [¶] But you may need to hire an immigration lawyer on
the issues of your deportation. That is not why I am here. And that is the
legal requirement that I have. [¶] I’m not required to practice immigration

15
law. There’s no immigration law forms in a state court plea agreement.
There’s no immigration law requirements in a state court plea agreement.” 6
Reed testified that he would have spoken to Benitez with the aid
of an interpreter, but he did not remember whether he ever visited Benitez
and spoke to him while he was in custody.
Benitez testified largely consistent with his declaration. Benitez
told Reed that he “was a resident and I didn’t want to lose that. He told me
that he practiced immigration law as well but he told me to wait until that
moment came along.” “What he told me was to take care of the jail matter
first, and then afterwards, we can look into the immigration matter.” Benitez
testified that he could only recall seeing Reed in court when he was first
hired, and then at sentencing. Benitez said Reed had “told me to initial here,
initial here, initial here and then sign it, and that was it. So I told him, hey,
what’s this about? When they said three years. And he got upset. He told me
not to speak in front of a certain cellmate . . . .”
After the interpreter interrupted, Benitez said, “Okay. What
happened is I was warned that I might not want to testify regarding other
inmates because there was a dangerous inmate in there. So I was scared. I
got scared. He told me he wasn’t going to be able to help me out because I
wasn’t willing to testify.” The court interrupted, “I’m sorry, let me get a
clarification. When you say ‘He wasn’t able to help me out because I wasn’t
willing to testify,’ is this a discussion you had with Mr. Reed?” Benitez
confirmed that he spoke to Reed, but this conversation occurred in the back of
the courtroom “for only three minutes.”

6
There was never an allegation or any indication that Benitez
had been “crossing the border” with methamphetamine.

16
Counsel asked, “Was that the first time you were hearing three
years regarding your case?” Benitez responded, “That’s what the public
defender gave me the -- since the beginning. The first time.” Benitez said that
Reed never told him that he was pleading guilty to aggravated felonies, and
that as a result he would forever be excluded from entering the United
States. As far as the immigration advisement, Benitez testified that Reed
“told me to initial it, sign it, but he never explained it to me.”
After a brief cross-examination, the court asked some questions.
The court confirmed that Benitez’s conversations with Reed all took place in
the courthouse and that Reed never came and visited him in jail. The court
asked Benitez whether he remembered filling out a six-page form. Benitez
said that he thought it was one page, but after being shown a copy of the
form, he said, “These initials [on] this page, they are mine. But that’s not my
writing. I’m not able to write in English. And that’s not my writing on this
page either.” After mistakenly identifying the interpreter’s signature, Benitez
confirmed that the signature on the form was his signature.
After taking the matter under submission, the court denied the
motion. The court said that the evidence showed Benitez had “told Mr. Reed
at the very first meeting that there was an immigration issue. I think he
noted that there was a permanent -- and this is from [Benitez’s] testimony.
That there was a discussion about that issue.
“I probably find it fairly not credible that Mr. Reed’s answer was
something along the lines of he was an immigration attorney and he would
deal with it later. But there was at least a discussion regarding immigration
status by [Benitez’s] own testimony.
“The other thing [Benitez] testified is that then he was just told
to go out, take the three years, and plead guilty. That he didn’t fill out forms.

17
“I showed [Benitez] a copy of the -- I believe it’s a six-page Tahl
form with his initials all over it. And while I recognize that he did, in looking
at it, admit that those were his initials and ultimately in looking at the
signature line -- the correct signature line, because the testimony first is he
was looking at the interpreter’s signature line, but that it was his signature.
“It’s just not credible evidence. And it could be a failed memory,
but it’s still not credible evidence to carry the day that there was not the
consideration of immigration consequences. There was the paragraph read --
initialed and read in open court and the court just finds that there’s
insufficient evidence on behalf of [Benitez], whether it’s through his
declaration and/or his testimony, to carry the motion. Therefore, the motion
is denied.”

C. Application and Analysis
In this case, Reed testified that he did not remember Benitez’s
case specifically, but he generally advised noncitizen clients: “You may need
to hire an immigration attorney if that’s what your concern is in this case.” At
that time Reed did not have a statutory obligation to “provide accurate and
affirmative advice about the immigration consequences of a proposed
disposition.” (See § 1016.3, subd. (a)(1).) However, Reed’s testimony arguably
establishes that his legal representation fell below an objective standard of
reasonableness given the United States Supreme Court’s prior holding in
Padilla. (See Padilla, supra, 559 U.S. at p. 360 [defense attorneys have an
affirmative obligation to understand and accurately explain the immigration
consequences of a guilty plea to their noncitizen clients].)
Reed only appeared on Benitez’s case four times. Reed did not
participate in a preliminary hearing (in fact, he left it to another attorney to

18
explain to Benitez that he needed to waive his statutory right to a
preliminary hearing). Reed never filed a motion to suppress evidence, and
based on the lack of documents in Benitez’s subpoenaed case file, it appears
Reed never conducted any kind of meaningful investigation of the facts.
In any event, a finding of ineffective assistance of counsel under
the Sixth Amendment is not required for Benitez to prevail in a section
1473.7 motion. “The Legislature has clarified that the moving party need not
establish ineffective assistance of counsel. (§ 1473.7 subd. (a)(1).) It follows
therefore, that even if the motion is based upon errors by counsel, the moving
party need not also establish a Sixth Amendment violation as by
demonstrating that ‘counsel’s representation “fell below an objective standard
of reasonableness”’ . . . ‘“under prevailing professional norms,”’ as stated in
Padilla, supra, 559 U.S. at pages 366, 368–369, quoting Strickland, supra,
466 U.S. at pages 688, 694 . . . .” (People v. Camacho (2019) 32 Cal.App.5th
998, 1008–1009 (Camacho).)
“Defendant was required only to show that one or more of the
established errors were prejudicial and damaged his ‘ability to meaningfully
understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of [his] plea . . . .’ (§ 1473.7, subd. (a)(1).)
If it were otherwise, we would have to engage in an analysis that the
Legislature never meant to require, which in turn, would render the statute
meaningless.” (Camacho, supra, 32 Cal.App.5th at p. 1009.)
Benitez testified that he did not understand that the narcotics
charges he was pleading guilty to (possession for sales and transportation of
a controlled substance) were aggravated felonies under federal law, which
require mandatory deportation. (See Moncrieffe, supra, 569 U.S. at pp. 187–
188.) Benitez’s testimony in this regard is bolstered by Reed’s testimony that

19
he routinely advised noncitizen defendants to consult with immigration
attorneys. Based on his testimony, Reed appeared to be wholly unaware of
what constituted an aggravated felony under federal law. Reed also seemed
to mistakenly focus on the fact that Benitez was pleading guilty to felony
crimes rather than misdemeanor crimes; however, a state’s classification of
crimes is not of paramount concern under federal immigration laws, the
critical issue is whether the crime is an aggravated felony or not. (See Habibi
v. Holder, supra, 673 F.3d at p. 1088.)
In sum, given Benitez’s unrefuted testimony, and all of the
surrounding circumstances that generally support his testimony, we find
there is reasonable probability that Benitez did not meaningfully understand
the immigration consequences of his guilty plea (mandatory deportation).
The Attorney General argues that the felony “plea form correctly
informed [Benitez] that he would be removed.” We agree, but such
advisements are not a categorical bar to relief under section 1473.7.
An immigration advisement in a felony plea form “did not absolve
defense counsel of the duty to advise of immigration consequences. Even
where the form says that the defendant ‘will’ be deported, it does not
substitute for the advice of counsel, and it is not a categorical bar to relief.
‘“Although the [plea] form contains the word ‘will’ and not ‘may,’ it, standing
alone, is akin to the ‘generic advisement’ required of the court under Penal
Code section 1016.5 . . . and it similarly ‘is not designed, nor does it operate,
as a substitute for such advice’ of defense counsel regarding the applicable
immigration consequences in a given case.”’” (People v. Manzanilla (2022) 80
Cal.App.5th 891, 906.)
Here, the immigration advisement was one of a multitude of
advisements initialed by Benitez in the lengthy felony plea form. Benitez’s

20
unrefuted testimony was that Reed only presented the document to him
several minutes before he signed it. Given Reed’s apparent lack of knowledge
about federal immigration laws, and his apparent lack of knowledge
regarding his obligations under Padilla, we find that the written advisement
in the lengthy plea form does not refute Benitez’s testimony that he did not
meaningfully understand the immigration consequences of his guilty pleas.
As far as the second factor (prejudice), there is corroborative
evidence to substantiate Benitez’s claim that he would not have pleaded
guilty had he meaningfully understood the mandatory immigration
ramifications. At the time of his guilty plea in August 2015, Benitez was 38
years old and had been in the United States since he was 12 years old.
Benitez was married, had five children, and was a lawful permanent resident
of the United States. These facts tend to support Benitez’s claim that
remaining in the United States was of particular importance to him. (People
v. Espinoza (2023) 14 Cal.5th 311, 320 [“Factors particularly relevant to this
inquiry include the defendant’s ties to the United States”].)
Another contemporaneous substantiation of Benitez’s declaration
is that unlike most guilty pleas, this was a direct plea to the trial court rather
than a negotiated disposition. That is, it appears there was no meaningful
negotiations with the prosecution. The court imposed an indicated sentence of
three years. But had Benitez gone to trial and been found guilty, it is simply
not realistic to imagine that the court would have imposed the maximum
prison sentence of nine years. (See In re Lewallen (1979) 23 Cal.3d 274, 278-
281 [under principles of due process, a trial court may not penalize a
defendant for exercising his or her right to a jury trial, nor may it promise
leniency if a defendant refrains from exercising that right].)
In other words, Benitez may have been inclined to take his

21
chances at trial, given a realistic assessment of his maximum exposure. Also,
there were obvious reasons to challenge the search on Fourth Amendment
grounds, and even if that was not successful, then there was a colorable trial
defense (i.e., that Benitez may not have been knowingly in possession of the
hidden narcotics in a vehicle that was not registered in his name).
Although the trial court’s ruling is not entirely clear, the court
appeared to find that Benitez’s testimony was not completely credible. But
the court’s concern primarily appears to have been with Benitez’s testimony
regarding the particular details as to his signing of the plea forms several
years prior. Indeed, there is no evidence that the factual basis in the plea
form was in Benitez’s handwriting, so the court’s questions may not have
been entirely clear to Benitez, who was being aided by an interpreter who
then asked for clarification.
Bottom line, the trial court never explicitly found that Benitez
meaningfully understood the immigration consequences of his guilty pleas.
(See Lopez, supra, 83 Cal.App.5th at p. 714 [“At the heart of the prejudicial
error analysis is the mindset of the defendant and what he or she
understood—or didn’t understand—at the time the plea was taken”].) And
the trial court never explicitly found that there was not “a reasonable
probability that” Benitez “would have rejected the plea if the defendant had
correctly understood its actual or potential immigration consequences.”
(Vivar, supra, 11 Cal.5th at p. 529, italics added.)
In cases like this, where difficult and careful analysis is required,
reasonable minds may sometimes differ. But in this review, we are called
upon to exercise our independent judgment. (See Vivar, supra, at p. 527
[“Ultimately it is for the appellate court to decide, based on its independent
judgment, whether the facts establish prejudice under section 1473.7”].)

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Given all the surrounding circumstances, we find Benitez has
established that he did not meaningfully understand the immigration
consequences of his plea, and there is a reasonable probability he would have
rejected the trial court’s offer and taken his chances at trial—or at least at a
motion to suppress the evidence—had he meaningfully understood those
mandatory consequences. (Lopez, supra, 83 Cal.App.5th at p. 714 [“‘“A
‘reasonable probability’ ‘does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility’”’”].)

III.
DISPOSITION
The order of the trial court is reversed, and the matter is
remanded with directions to allow Benitez to withdraw his 2015 guilty pleas.

MOORE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

DELANEY, J.