The People v. Higuera

• Court: California Court of Appeals
• Docket Number: F090277
• Decision Date: 01 September 2026
• Citation: The People v. Higuera, F090277 (Cal. App. Sep 01, 2026)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FERNANDO DUARTE HIGUERA, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. FERNANDO DUARTE HIGUERA, Defendant and Appellant.

F090277

California Court of Appeals, Fifth District

September 1, 2026

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. No SC060950A, Andrew Kendall, Judge.

Sanger, Hanley, Sanger & Avila and Sarah S. Sanger, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench, Jessica A. Eros and Brittany M. Gunter, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT^[*]

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INTRODUCTION

In 1995, appellant and defendant Fernando Duarte Higuera, a lawful permanent resident of the United States with no criminal record, entered a no contest West plea^[1] to one count of committing a lewd or lascivious act on a child under the age of 14 years. (Pen. Code, § 288 subd. (a).)^[2] In 2025, after defendant learned from an immigration attorney that his conviction bars him from becoming a United States citizen and mandates deportation, he retained an attorney to assist him in seeking postconviction relief. Through counsel, defendant filed a statutory motion to vacate his conviction due to prejudicial error affecting his ability to meaningfully understand the immigration consequences of his plea. (§ 1473.7, subd. (a)(1).)

At the evidentiary hearing on the motion, the superior court recognized the plea in this case was entered prior to the decision in Padilla and concluded defendant was not properly advised of the immigration consequences of his plea. (Padilla v. Kentucky (2010) 559 U.S. 356, 374 (Padilla) [6th Amend. requires counsel to advise client whether plea carries risk of deportation].) However the court found no prejudicial error because it was not persuaded defendant would have acted differently had he been properly advised of the immigration consequences. (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)

Defendant timely appealed. He claims that he has met his burden of demonstrating prejudicial error under the totality of the circumstances, entitling him to relief from his conviction. (Espinoza, supra, 14 Cal.5th at pp. 320-321.) He requests

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this court vacate the superior court's order denying his motion and remand this matter with instructions to the superior court to grant the motion.

The People dispute any entitlement to relief. They argue defendant fails to show "he did not meaningfully understand the immigration consequences of his plea" (Espinoza, supra, 14 Cal.5th at p. 319), and, if it is assumed he met the first prong of the inquiry, he fails to "show that his misunderstanding constituted prejudicial error" (ibid.).

We have independently reviewed the record and conclude defendant has demonstrated entitlement to relief. (Espinoza, supra, 14 Cal.5th at pp. 319-321; People v. Vivar (2021) 11 Cal.5th 510, 527-528 (Vivar).)^[3] The superior court's order denying defendant's section 1473.7 motion is vacated and this matter is remanded with instructions to the court to grant the motion following the issuance of the remittitur. To expedite proceedings, the parties may stipulate to the immediate issuance of the remittitur. (People v. Carrillo (2024) 101 Cal.App.5th 1, 33, fn. 10 (Carrillo).)

DISCUSSION

I. Legal Principles

1. Section 1473.7, Subdivision (a)(1)

In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. (Vivar, supra, 11 Cal.5th at pp. 522-523; Carrillo, supra, 101 Cal.App.5th at p. 12.) The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea. (Carrillo, supra, at p. 13, citing Stats. 2021, ch. 420, § 1 [eff. Jan. 1, 2022].) In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the

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basis that "[t]he conviction or sentence 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." (§ 1473.7, subd. (a).) Relief is not contingent upon establishing ineffective assistance of counsel. (Ibid.)

"A defendant must satisfy three statutory requirements to be eligible to seek relief from a 'legally invalid' conviction or sentence under section 1473.7, subdivision (a)(1)." (Carrillo, supra, 101 Cal.App.5th at p. 13.) The movant must show he is "no longer in criminal custody" (§ 1473.7, subd. (a)), and "the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization" (id., subd. (f)(1)). (Carrillo, supra, at p. 13.) The motion must also be timely.^[4] (Carrillo, supra, at p. 13.)

"To prevail under section 1473.7, a defendant must demonstrate that his conviction is 'legally invalid due to prejudicial error damaging [his or her] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.' (§ 1473.7, subd. (a)(1).) The defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error.' [P]rejudical error ... means demonstrating a reasonable

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probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.'" (Espinoza, supra, 14 Cal.5th at p. 319, quoting Vivar, supra, 11 Cal.5th at p. 529.)

We evaluate prejudicial error under the totality of the circumstances. (Espinoza, supra, 14 Cal.5th at p. 320, citing Vivar, supra, 11 Cal.5th at p. 529.) "'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.'" (Espinoza, supra, at p. 320, quoting Vivar, supra, at pp. 529-530.) "[T]he defendant's probability of obtaining a more favorable outcome if he had rejected the plea [and] the difference between the bargained-for term and the likely term if he were convicted at trial" are also relevant. (Espinoza, supra, at p. 320, citing People v. Martinez (2013) 57 Cal.4th 555, 564 (Martinez).) "These factors are not exhaustive, and no single type of evidence is a prerequisite to relief." (Espinoza, supra, at p. 321.)

"A defendant must provide '"'objective evidence'"' to corroborate factual assertions. (Vivar, supra, 11 Cal.5th at p. 530.) Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." (Espinoza, supra, 14 Cal.5th p. 321, citing &quoting Vivar, supra, at pp. 530-531 &Lee v. United States (2017) 582 U.S. 357, 358.)

2. Standard of Review

On appeal, we "apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences." (Espinoza, supra, 14 Cal.5th at p. 319, citing Vivar, supra, 11 Cal.5th at p. 527.) We exercise "'"independent judgment to determine whether the facts satisfy the rule of law"'" (Espinoza, supra, at p. 320), and defer "to the

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trial court's factual determinations if they are based on '"'the credibility of witnesses the [superior court] heard and observed'"'" (ibid.). However, "when[, as in this case,] the trial court's findings 'derive entirely from written declarations and other documents,' the trial court and the reviewing court '"are in the same position,"' and no deference is owed." (Ibid., quoting Vivar, supra, at p. 528.)

II. Procedural Background

Defendant was born in Mexico in 1959, but has lived in the United States since at least 1984, and he is a lawful permanent resident.^[5] In November 1994, defendant was arrested after his sister-in-law reported to law enforcement that he touched his 12-year-old niece inappropriately the day before. Defendant allegedly stopped his vehicle while driving his niece home, hugged her, kissed and sucked on her ear lobe, and touched her breast over her clothing two or three times. Defendant's niece reportedly confirmed the allegations to investigating deputies, and defendant reportedly admitted the allegations to them, but stated he touched his niece's breast several months earlier and in November, he only hugged and kissed her.

That month, defendant was charged by complaint with two counts of committing a lewd or lascivious act on a child under the age of 14 years, based on the November 1994 incident and an incident alleged to have occurred between July and October 1994. (§ 288, subd. (a).) In January 1995, the prosecution filed an information charging defendant with one count of violating section 288, subdivision (a), based on the November 1994 incident.

In March 1995, during jury selection, defendant withdrew his not guilty plea and, pursuant to West, entered a no contest plea to one count of committing a lewd or lascivious act on a child under the age of 14 years. (§ 288, subd. (a).) In accepting the

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plea, the trial court advised defendant the sentencing range was three, six,...