BACKGROUND

A. Guilty Plea

In May 2004, Coca was charged by felony complaint with one felony count of

receiving stolen property in violation of section 496, subdivision (a) (section 496(a))

(count 1) and one felony count of second degree commercial burglary in violation of

section 459 (count 2).

In March 2008, Coca pled guilty to one count of violating section 496(a), and the

court dismissed count 2. The minute order from the plea and sentencing hearing

indicates that Coca pled guilty to “Count 1, a felony reduced to M496A PC, a

misdemeanor pursuant to” section 17, subdivision (b). (The plea agreement does not

indicate whether Coca pled guilty to a felony or a misdemeanor.) The court sentenced

Coca to a 36-month term of probation.

Coca signed an “Advisement of Rights and Waiver Form—Misdemeanor” in

connection with the plea agreement. (Boldface and capitalization omitted.) Coca

2 initialed a box next to the following advisement: “I understand th[at if] I am not a United

States citizen, my plea could [result] in my deportation, exclusion from future admission

to the United States, or a denial of naturalization under the laws of the United States.” 1

Coca’s attorney also signed the form. The attorney attested that she had explained

to Coca “each of . . . her rights, the nature of and defenses to the charge(s), and the

consequences of . . . her guilty/nolo contendere plea and admission.” Coca’s attorney

“personally observed” Coca “read, initial, date and sign” the form.

B. Motions to Vacate

In May 2022, Coca filed a motion under section 1473.7, subdivision (a)(1)

(§ 1473.7(a)(1)) to vacate the 2008 conviction. In an attached declaration, she stated that

she is not a citizen of the United States but has been a resident since 1999. Coca noted

that a “substantial amount” of her family lives in the United States, including her

husband, daughter, grandmother, and brother. Concerning the 2008 conviction, Coca

“believe[d]” that neither the court nor her attorney “properly advise[d]” her that she “was

subject to detention or possible denial of relief, voluntary departure, bar from reentry,

and / or any other consequences if” she pled guilty. She attested: “As a result, I am

ineligible for cancellation of removal, asylum, adjustment of status, or any beneficial

immigration status.” She did not otherwise specify the allegedly adverse immigration

consequences of her 2008 misdemeanor conviction.

1 Some of the text in the copy of the form contained in the record on appeal is obscured by hole punches. We have bracketed the text that we filled in.

3 Coca also filed a second motion under section 1473.7(a)(1) to vacate another,

older misdemeanor conviction. In 2004, Coca pled guilty to a misdemeanor violation of

section 488, subdivision (a), petty theft. Coca represented herself during that proceeding.

In her motion to vacate, she claimed that the court had not advised her of the immigration

consequences of her guilty plea.

The District Attorney opposed the motion to vacate the 2008 misdemeanor

conviction under section 496(a). 2 The District Attorney argued that Coca could not

demonstrate prejudicial error because the section 496(a) conviction did not qualify as an

aggravated felony or a crime involving moral turpitude and thus could not result in any

potential adverse immigration consequences. The District Attorney attached numerous

exhibits in support of the opposition, including Coca’s certified rap sheet as of June 2021

and a probation report with the police report of the underlying incident attached. 3 In

2001, Coca was convicted in Los Angeles County of a misdemeanor violation of Vehicle

Code section 31, giving false information to a peace officer. In 2008 (10 days before

Coca pled guilty to the misdemeanor violation of section 496(a)), she was convicted in

Los Angeles County of a misdemeanor violation of section 484, subdivision (a), petty

theft.

2 The record on appeal does not include the District Attorney’s written opposition, if any, to the motion to vacate the 2004 misdemeanor conviction.

3 The probation report is a one-page restitution memorandum in which the police report is not mentioned. It is unclear whether the police report was originally attached to the probation report or is a separate document.

4 C. Evidentiary Hearing

The trial court held a combined hearing on both motions to vacate. At the hearing,

the court sustained Coca’s attorney’s objection to the admission of the police report.

Coca testified that she was born in Nicaragua in 1981. She moved to the United

States sometime before she was five years old and has lived in the country since at least

1986. Until sometime around 2009, Coca believed that she was a United States citizen.

She misunderstood the nature of immigration paperwork filed on her behalf when she

was a minor. She became a legal permanent resident in 1999.

When Coca pled guilty to the section 496(a) offense in 2008, she believed that she

was a citizen. If her attorney had asked Coca about her citizenship status, Coca would

have told the attorney that she was a citizen. When Coca pled guilty, she was in custody

and wanted to be released. After she entered the guilty plea, she was released from

custody.

Coca testified that she did not recall having any conversations with her attorney

about the possible immigration consequences of her 2008 guilty plea and also that her

attorney did not talk to her about possible immigration consequences that could result

from the guilty plea. Coca could not recall whether the court had given her any such

advisement. Had Coca known when she pled guilty that she was not a citizen and that

pleading guilty would adversely affect her immigration status, she would not have pled

guilty. (Coca also testified concerning the 2004 conviction, but that conviction is not at

issue on this appeal.)

5 Coca was not in removal proceedings. Asked about her current immigration

status, Coca responded: “Right now, I’m in the process of—we put in paperwork. We

just haven’t heard anything yet.”

The parties submitted after Coca testified. The District Attorney argued that the

conviction was not an aggravated felony or a crime involving moral turpitude, “so there

[were] no deportation—et cetera—consequences for this plea. [¶] So she couldn’t prove

prejudice on either one because there simply are no consequences.” Coca’s attorney

countered that regardless of whether the misdemeanor convictions qualified as crimes

involving moral turpitude, the United States Citizenship and Immigration Services could

consider them in determining whether Coca possessed good moral character to become

naturalized.

The trial court found credible Coca’s testimony concerning her mistaken belief

about being a citizen when she pled guilty. The court denied the motion to vacate the

2004 misdemeanor petty theft conviction, concluding that Coca “failed to demonstrate

reasonable probability that if [she] had understood the immigration consequences of [her]

plea [she] would not have pled no contest in that case.” The court explained that Coca

“had no priors,” so the immigration consequences were not “very severe.” But the court

granted Coca’s motion to vacate the 2008 misdemeanor conviction, reasoning “that by

the time [Coca] got that case, [she] had three prior convictions. And that’s when

immigration consequences really become severe.” The court found that Coca had

“demonstrated a reasonable probability that if she understood the immigration

consequences of her plea, she would not have pled guilty in that case, or she would have

6 tried to get a more immigration-safe plea. [¶] Therefore, the conviction in that case was

legally invalid due to a prejudicial error damaging her ability to meaningfully understand,

defend against, or knowingly accept the actual or potential adverse immigration

consequences of a plea of guilty or no contest.”

DISCUSSION

The District Attorney contends that the trial court erred by granting Coca’s section

1473.7(a)(1) motion to vacate the 2008 misdemeanor conviction. We agree.

A. Section 1473.7

Section 1473.7(a)(1) provides that “[a] person who is no longer in criminal

custody may file a motion to vacate a conviction” if it “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.” The legal invalidity finding is not dependent on a finding of

ineffective assistance of counsel. (Ibid.) The movant has the burden of establishing

entitlement to relief by a preponderance of the evidence. (§ 1473.7(e)(1).) The movant

“shall also establish that 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.” (Ibid.)

“We apply independent review to evaluate whether a defendant has demonstrated

a reasonable probability that he [or she] would have rejected the plea offer had he [or she]

understood its immigration consequences.” (People v. Espinoza (2023) 14 Cal.5th 311,

319; People v. Vivar (2021) 11 Cal.5th 510, 525-526.) Independent review in this

7 context is not synonymous with de novo review. (Vivar, supra, at p. 527.) We exercise

“‘independent judgment to determine whether the facts satisfy the rule of law.’” (Ibid.)

In determining whether a defendant has made the evidentiary showing necessary to

establish prejudicial error within the meaning of section 1473.7(a)(1), “we weigh all

relevant circumstances, with no single factor being dispositive in our consideration of the

totality.” (Espinoza, supra, at p. 321.) We afford “particular deference to factual

findings based on the trial court’s personal observations of witnesses.” (Vivar, at

pp. 527-528.)

B. Analysis

The District Attorney contends that the trial court erred by granting the motion to

vacate because Coca failed to carry her burden of demonstrating by a preponderance of

the evidence that the 2008 misdemeanor conviction was “causing or ha[d] the potential to

cause removal or the denial of an application for an immigration benefit, lawful status, or

naturalization.” (§ 1473.7(e)(1).) We agree.

The District Attorney contends that the conviction does not render Coca subject to

removal, because the conviction is not an aggravated felony or a crime involving moral

turpitude. We agree. A noncitizen who commits either an aggravated felony or a crime

involving moral turpitude is subject to removal. (8 U.S.C. § 1227(a)(2)(A)(i) & (iii);

People v. Curiel (2023) 92 Cal.App.5th 1160, 1174.) The misdemeanor conviction does

not qualify as an aggravated felony. (Cf. 8 U.S.C. § 1101(a)(43)(G) [receipt of stolen

property considered an aggravated felony when the term of imprisonment is at least one

year]; United States v. Flores (9th Cir. 2018) 901 F.3d 1150, 1161 [conviction under

8 § 496(a) “along with a sentence of more than one year of imprisonment[] is categorically

an aggravated felony”]; see id. at p. 1161, fn. 14 [misdemeanor conviction under § 496(a)

“can result in a sentence below section 1101(a)(43)(G)’s one year threshold”].) Coca

does not argue to the contrary. Coca does argue, however, that the conviction has the

potential to be considered a crime involving moral turpitude.

The generic definition of a crime involving moral turpitude under the Immigration

and Nationality Act (INA) (8 U.S.C. § 1101, et seq.) “is a crime involving fraud or

conduct that (1) is vile, base, or depraved and (2) violates accepted moral standards.”

(Saavedra-Figueroa v. Holder (9th Cir. 2010) 625 F.3d 621, 626.) To determine whether

a state conviction is a crime involving moral turpitude under the INA, courts employ a

three-step process: “At the first step, we compare the elements of the state offense to the

elements of [a corresponding] generic offense [involving moral turpitude] defined by

federal law. If this ‘categorical approach’ reveals that the elements of the state crime are

the same as or narrower than the elements of the federal offense, then the state crime is a

categorical match and every conviction under that statute qualifies as [a crime involving

moral turpitude]. When a statute is ‘overbroad,’ meaning that it criminalizes conduct that

goes beyond the elements of the federal offense, we turn to step two: determining

whether the statute is ‘divisible’ or ‘indivisible.’” (Almanza-Arenas v. Lynch (9th Cir.

2016) 815 F.3d 469, 475 (Almanza-Arenas).) “A statute is divisible if it has ‘multiple,

alternative elements, and so effectively creates several different crimes.’” (Fernandez v.

Barr (9th Cir. 2020) 969 F.3d 1077, 1086.) If the statute “has an indivisible set of

elements with different means of committing one crime” (ibid.), then the “‘inquiry ends,

9 because a conviction under an indivisible, overbroad statute can never serve as a

predicate offense.’ Only when a statute is overbroad and divisible do we turn to step

three—the ‘modified categorical approach.’ At this step, we may examine certain

documents from the defendant’s record of conviction to determine what elements of the

divisible statute he [or she] was convicted of violating.” (Almanza-Arenas, supra, at

p. 475.)

Section 496(a) provides: “Every person who buys or receives any property that

has been stolen or that has been obtained in any manner constituting theft or extortion,

knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or

aids in concealing, selling, or withholding any property from the owner, knowing the

property to be so stolen or obtained, shall be punished” as specified in the statute. The

elements of receiving stolen property under section 496(a) “are (1) stolen property; (2)

knowledge that the property was stolen; and (3) possession of the stolen property.”

(People v. King (2000) 81 Cal.App.4th 472, 476.)

Relying on Castillo-Cruz v. Holder (9th Cir. 2009) 581 F.3d 1154 (Castillo-Cruz),

the District Attorney contends that receipt of stolen property under section 496(a) is not a

crime involving moral turpitude. We agree. In Castillo-Cruz, the Ninth Circuit applied

the categorical approach and compared section 496(a) to a generic theft offense.

(Castillo-Cruz, supra, at pp. 1160-1161.) The court explained that to qualify as a crime

involving moral turpitude a theft offense must include “the offender’s ‘intention to

permanently deprive the owner of his property.’” (Id. at p. 1160 & fn. 8.) Analyzing

whether a conviction under section 496(a) criminalized conduct broader than that

10 required for a generic federal theft offense, Castillo-Cruz reasoned that receipt of stolen

property under section 496(a) does not “require an intent to permanently deprive the

owner of property” (Castillo-Cruz, at p. 1161) “but rather permits conviction for an intent

to deprive an individual of his property temporarily” (id. at p. 1160). The court

concluded: “Receipt of stolen property under [section 496(a)] thus falls outside the

generic definition of an offense, such as theft, that involves an intent to permanently

deprive an individual of his property, and, accordingly, outside the generic definition of a

crime of moral turpitude.” (Id. at pp. 1160-1161.)

Section 496(a) thus does not qualify as a crime involving moral turpitude

categorically. (Castillo-Cruz, supra, 581 F.3d at pp. 1160-1161.) Because a

misdemeanor conviction under section 496(a) also is not an aggravated felony, we

conclude that Coca did not carry her burden under section 1473.7(e)(1) of demonstrating

that the conviction had the potential of subjecting her to removal. 4 (8 U.S.C.

§ 1227(a)(2)(A)(i).)

Coca acknowledges that Castillo-Cruz, supra, 581 F.3d 1154, held that the

minimum conduct necessary to receive stolen property in violation of section 496(a)

requires the intent to temporarily deprive an owner of property, which is not a crime

involving moral turpitude. She also concedes that section 496(a) “is both overbroad and

4 In 2016, the Board of Immigration Appeals (BIA) adopted a broader definition of when a state theft offense can qualify as a crime involving moral turpitude. (Matter of Diaz-Lizarraga (2016) 26 I. & N. Dec. 847, 854.) However, because Coca pled guilty to the relevant charge “before the BIA changed its interpretation, the new standard does not apply retroactively to [her] case.” (Barbosa v. Barr (9th Cir. 2019) 926 F.3d 1053, 1058.)

11 indivisible” compared to the generic federal definition of a corresponding crime

involving moral turpitude, so a section 496(a) conviction is not a crime involving moral

turpitude. But Coca argues that her conviction still has the potential to be considered a

crime involving moral turpitude because it is not clear from her record of conviction

whether she intended to deprive the owner of property temporarily or permanently.

The argument lacks merit. Given Coca’s concession that section 496(a) is

overbroad and indivisible, it follows that a conviction under the state statute “‘can never

serve as a predicate offense’” involving moral turpitude. (Almanza-Arenas, supra, 815

F.3d at p. 475.) And “[b]ecause the statute is overbroad and indivisible, . . . the modified

categorical approach ‘has no role to play’” (Lopez-Valencia v. Lynch (2015) 798 F.3d

863, 870), so Coca’s record of conviction is not relevant. (See id. at pp. 868-870

[concluding that a theft offense under § 484 is not divisible].) Coca does not identify any

other reason why the conviction has the potential to result in adverse immigration

consequences, and we are not aware of any.

Because Coca did not carry her burden of demonstrating by a preponderance of

the evidence that the 2008 misdemeanor conviction under section 496(a) was “causing or

ha[d] the potential to cause removal or the denial of an application for an immigration

benefit, lawful status, or naturalization” (§ 1473.7(e)(1)), we conclude that the trial court

erred by granting Coca’s motion to vacate the conviction. We accordingly reverse the

order granting the motion. We need not and do not address the District Attorney’s

remaining arguments.

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DISPOSITION

The August 22, 2022, order granting Coca’s section 1473.7(a)(1) motion to vacate

her 2008 misdemeanor conviction under section 496(a) is reversed, and the superior court

is directed to enter an order denying the motion.

CERTIFIED FOR PUBLICATION

MENETREZ

J.

We concur:

CODRINGTON

Acting P. J.

RAPHAEL

J.

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