Initials on Plea Form Fail to Show Grasp of Deportation Risk

Friday, August 14, 2026

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California Supreme Court:

Initials on Plea Form Fail to Show Grasp of Deportation Risk

Opinion Says Judge Is Required to Look at Other Factors, Including Whether She Took Steps to Avoid Contact With Immigration Officials, to Determine Whether Vacatur Is Warranted

By Kimber Cooley, associate editor

The California Supreme Court held yesterday that a woman, who held lawful permanent resident status at the time she pled guilty to transporting and possessing approximately 100 pounds of marijuana for sale, was entitled to the vacatur of her convictions due to a failure to meaningfully understand the immigration consequences of the plea.

Yesterday’s majority opinion found that she had established “prejudicial error damaging [her] ability to meaningfully understand…the actual or potential adverse immigration consequences of a conviction or sentence,” as required for vacatur under Penal Code §1473.7(a)(1), even though the court had advised her of the possibility of deportation and she had initialed language indicating that she had discussed the risks with her attorney.

Justice Joshua P. Groban authored the opinion, joined in by Chief Justice Patricia Guerrero and Justices Goodwin H. Liu, Leondra R. Kruger, Kelli Evans, joined by Justice Allison M. Danner of the Sixth District Court of Appeal, sitting by assignment. Groban wrote:

“[T]he error inquiry does not turn solely on what [the defendant] was told by [her lawyer] or by the court. The focus of the error inquiry is the defendant’s state of mind: what the defendant subjectively understood—or did not understand—when entering the challenged plea. Courts evaluating motions to vacate a conviction under section 1473.7(a)(1) should consider the totality of the circumstances and ask whether defendants meaningfully understood the actual and potential immigration consequences of their pleas….”

Writing separately, Justice Carol A. Corrigan agreed that a totality-of-the-circumstances standard applies but argued:

“The majority concludes that ‘error’ under section 1473.7(a)(1) occurred here, but it does not articulate what the perceived legal error was, who committed it, or what courts and counsel must do going forward to protect defendants and avoid error….The majority opinion seems to refer to conduct unrelated to legal error by the court or counsel as ‘subjective error.’…[A]n ill-defined “subjective error” standard is unworkable and does little to protect a defendant against legal error in the first place.”

Marijuana Charges

The question arose after Angela Hernandez pled guilty to two felony counts relating to allegations that she had been found driving a vehicle with five trash bags full of marijuana in Kern County in August 2013. She told law enforcement officers that a man working at a nearby vineyard had recruited her to transport the controlled substance and deliver it to another party in exchange for $2,000.

At the time, Hernandez was 55 years old, boasted a clean criminal record, had lived in the U.S. for 36 years, and was married with five children, all of whom were either citizens or lawful permanent residents. That October, she signed a plea form and initialed an advisement, printed in English, which read:

“I understand that if I am not a Citizen…, my guilty or no contest plea will result in my deportation, exclusion from admission to the United States….Deportation is mandatory for some offenses. I have fully discussed this matter with my attorney and understand the serious immigration consequences of my plea.”

Her attorney, J.M. Irigoyen (now deceased), signed a statement that indicated that he had “explained any possible immigration consequences,” and a Spanish-language interpreter certified that she had translated the “entire form” signed by the defendant, who said that she “understood” its contents.

Then-Kern Superior Court Judge Steven Katz (now retired) gave the advisement required by Penal Code §1016.5, which directs courts to inform criminal defendants that they may face deportation due to a guilty plea on the charges, and later issued findings indicating that Hernandez pled guilty freely and voluntarily, with an understanding of the “consequences thereof.”

Trip to Mexico

Katz sentenced her to three years of probation with 180 days in jail. Two years later, she was detained by immigration officials at Los Angeles International Airport upon her return from a trip to Mexico.

In 2016, she filed a petition for writ of habeas corpus, seeking permission to withdraw her plea due to ineffective assistance of counsel. Because she was no longer in custody, the court converted the petition into one filed under §1473.7 and set the matter for evidentiary hearing.

At the hearing, she admitted to signing the plea form but testified that she did not remember Irigoyen, who had passed away before the proceedings, telling her about deportation. Katz denied the petition, saying:

“[F]rom the record of the plea and sentencing, it does appear that Mr. Irigoyen properly advised Ms. Hernandez regarding the immigration consequences of entering a plea. Her claims now appear to be ‘post hoc assertions’ that are contradicted by the record of the plea.”

A divided Fifth District Court of Appeal ultimately affirmed the denial in 2023.

Establishing Error

Groban wrote:

“A defendant may establish error by showing that they entered a plea without a meaningful understanding of the ‘actual or potential adverse immigration consequences’ of the resulting conviction or sentence….For example, a defendant may show that their attorney provided incomplete or inaccurate advice about the plea’s immigration consequences…, so the defendant entered the plea without a meaningful understanding of them.”

He continued:

“Alternatively, a defendant may show error in the form of subjective misunderstanding…that damaged their ability to ‘defend against’ these consequences….For example, a defendant may show that they were unaware of possible alternative approaches to their defense….Finally, a defendant may establish error by showing that they did not ‘knowingly accept’ the consequences of their conviction.”

Saying that, “[b]ecause the error inquiry focuses on the defendant’s subjective understanding,” he reasoned that “evidence that the trial court gave the generic advisement” required by §1016.5 or that the defendant signed a form indicating that she understood that she might face deportation were relevant but not dispositive of the issue. He added that the court must look beyond the plea proceedings and remarked:

“This includes evidence that the defendant either voluntarily brought themselves to the attention of immigration authorities…or that the defendant avoided contact with immigration authorities…and evidence that the defendant expressed concerns about potential immigration consequences of their conviction….”

Implied Finding

The jurist opined that the court was bound by the trial court’s implied adverse credibility finding as to Hernandez’s testimony that she was “never told” that she might be deported but commented:

“Other evidence corroborates Hernandez’s account. The record shows that Hernandez required a Spanish-language interpreter for all her court appearances. Irigoyen did not speak Spanish, and the only time she met with him with an interpreter was at the court on the day she entered her plea. Irigoyen did not request additional time from the court to counsel Hernandez on the immigration consequences of pleading guilty or her options for defending against them.”

Groban also took issue with the advisement provided to Hernandez on the plea form, saying:

“By observing that deportation is mandatory for ‘some’ offenses and suggesting that defendants should have discussed immigration consequences with their attorneys, the advisement conveys that it was not intended as personalized immigration advice….”

The justice concluded:

“Hernandez has established a reasonable probability that, had she meaningfully understood that her plea would result in the loss of her permanent resident status and deportation to Mexico, she would have attempted to negotiate an immigration-neutral plea or taken her case to trial.”

Corrigan’s View

Corrigan concurred and dissented in part, asserting:

“Here we apply a relatively new and evolving statute on which we have not had the opportunity to provide specific guidance. It is important that we make clear not only what constitutes prejudicial legal error, but also how trial and appellate courts, as well as trial counsel, should approach their responsibilities going forward. Clarity on these issues is important for all concerned, and I suggest more is necessary than that which can be culled from the majority opinion.”

Arguing that “[t]he factual record here is ambiguous” as to whether legal error caused a lack of understanding within the plain meaning of the statute, she wrote:

“Legal error may have occurred here and, in ruling on the motion to vacate, the trial court failed to adequately consider the totality of circumstances by focusing almost exclusively on what Ms. Hernandez was told rather than more broadly examining what she understood….As a result, I would return this matter to the trial court for it to consider Ms. Hernandez’s motion and determine the factual and credibility questions it raises.”

The case is People v. Hernandez, 2026 S.O.S. 2487.