Castro-Vasquez

INTRODUCTION

The record of appellant’s 1991 guilty plea does not show that he was given the proper advisement of the potential immigration consequences of his plea, as required by Penal Code section 1016.5. After he was notified that deportation proceedings had been scheduled, appellant filed a statutory motion to vacate the guilty plea; there was no written opposition to the motion. After finding that appellant would not have pled guilty had he been properly advised, the trial court denied the motion on the ground that appellant had failed to establish prejudice. Specifically, the court found appellant had not met his “burden to show that the case would have resulted in a different result had he, in fact, gone to trial.” We conclude the court applied the wrong test of prejudice. Accordingly, we reverse the trial court’s order and remand with instructions.

BACKGROUND

In 1991, appellant was charged with a-violation of Health and Safety. Code section 11351, felony, possession of cocaine for sale,, to which he pleaded guilty June 7, 1991. Appellant was convicted upon his plea, and the sentencing court suspended imposition of sentence, placed appellant on felony probation…