People v. Fonua CA1/2

Opinion

Filed 8/26/26 P. v. Fonua CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A172784 v. PELISI FOKETI FONUA, (Contra Costa County Super. Ct. No. 05000419499) Defendant and Appellant.

Penal Code section 1473.7 provides a mechanism for “noncitizens to vacate convictions after they are no longer in criminal custody based on a failure to understand adverse immigration consequences of their convictions.” (People v. Singh (2022) 81 Cal.App.5th 147, 151–152.) Relief under section 1473.7 requires a showing that the defendant’s misunderstanding regarding immigration consequences “ ‘constituted prejudicial error.’ ” (People v. Carrillo (2024) 101 Cal.App.5th 1, 14 (Carrillo); § 1473.7, subd. (a)(1)1.) When the conviction at issue was the result of a trial (not a plea), establishing prejudicial error requires a showing that it is reasonably probable that the defendant “would not have proceeded to a jury trial had he understood the immigration consequences” and that the defendant’s 1 Undesignated statutory references are to the Penal Code.

1 alternative “path would have resulted in an immigration-neutral outcome.” (People v. Avena (2026) 119 Cal.App.5th 624, 632 (Avena).) The present case involves defendant Pelis Foketi Fonua, who was born in Tonga and has been a lawful permanent resident of the United States since 1990. A jury found him guilty of attempted murder and other crimes in 2005, and he was sentenced to 16 years, four months in prison. After his release from state prison, defendant was detained by Immigration and Customs Enforcement, at which point he learned his criminal convictions from 2005 subjected him to deportation. Defendant filed a motion to vacate his convictions under section 1473.7, arguing that, if he had known before his criminal trial that the charged offenses would result in deportation, he “could have directed [his] attorneys to try to negotiate an immigration safe disposition to avoid adverse immigration consequences.” Opposing the motion, the People argued defendant failed to show prejudice because he failed to show there was an alternative immigration-neutral disposition that the prosecution would have agreed to. The trial court denied defendant’s motion, finding that defendant failed to show prejudicial error. Defendant appeals from the denial of his motion to vacate. We affirm. FACTS AND PROCEDURAL HISTORY Underlying Criminal Convictions Charges Defendant was charged with attempted premediated murder (§§ 187, 664; count 1), two counts of infliction of corporal injury upon a spouse (§ 273.5, subd. (a); counts 2 and 4), two counts of felony child endangerment (§ 273a, subd. (a); counts 3 and 6), and assault by force likely to produce great bodily injury (former § 245, subd. (a)(1), as amended by Stats. 1999, ch. 129, 2 § 1 (now § 245, subd.(a)(4), see Stats. 2011, ch. 183, § 1); count 5). It was further alleged that defendant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd (e)) in the commission of counts 1 and 2. The first three counts arose from conduct that occurred on August 31, 2004, and the last three counts involved conduct that occurred on February 8, 2004. Trial Evidence Evidence of the following was presented at trial.2 Defendant and K.S. were married in May 2000 and divorced in October 2004. They had three children together. On the evening of February 7, 2004, K.S., defendant, and their children went to the apartment of K.S.’s cousin. K.S. and her cousin said they were going out to get milk, but they decided to go to a club and later to a casino. The two women returned early in the morning of February 8, and K.S. lay down on the living room floor next to her two older children, who were asleep. Defendant and their baby were also sleeping in the living room. About 30 minutes after K.S. and her cousin returned, defendant started yelling at K.S. and punching her. He continued striking K.S. even as she rolled onto their daughter. Defendant kicked K.S. in the face next to her mouth, then took her cell phone and broke it. Defendant also took the house phone and told K.S. he did not want her to call the police on him.

2 There is no dispute about the material facts of defendant’s offenses.

In response to defendant’s motion to vacate, the People filed an opposition including a description of the crimes that largely tracked the recitation of evidence at trial from the appellate opinion in defendant’s direct appeal, (People v. Fonua (Dec. 11, 2008, A114163) [nonpub. opn.]). Defendant did not object to the People’s description of the offenses below and, on appeal, he includes most of the People’s facts in his opening brief.

3 Later that morning, defendant became annoyed with their son and threw him against a chair. K.S. yelled at defendant not to hit their son and, if he was mad at her, to take it out on her. Defendant grabbed a knife and threatened that if K.S. called the police, he would make her jump off the third-story balcony of the apartment. Defendant repeatedly threatened that he would hurt K.S. and her family if she called the police. A few days later, a Contra Costa County Sheriff’s officer interviewed K.S. and her cousin about the incident and documented K.S.’s head injuries. In August 2004, defendant and K.S. were separated and in the process of getting divorced, and K.S. was staying at an apartment with a friend. On the evening of August 31, defendant and K.S. began arguing because K.S. would not allow defendant’s children from a previous marriage to stay with her at the apartment. Around 11:00 p.m., defendant was at the apartment with K.S. and her friend; defendant wanted to stay, but K.S. told him she would call the police if he did not leave. Defendant grabbed a knife from the kitchen and began stabbing K.S. Defendant said he had warned her that if she ever called the cops again, he would kill her. K.S.’s friend left the apartment for help. Defendant continued to stab and punch K.S. K.S. ran to a bedroom, but defendant grabbed her by the hair and dragged her to the living room. He threw her on the floor near where their baby was playing. K.S. was on her stomach, and defendant was on top of her punching her. K.S.’s friend returned with a neighbor, who testified that when she opened the door, she saw blood everywhere, K.S lying on the floor in a fetal position, a baby crawling toward her, and defendant standing over K.S. striking her as if stabbing her. The neighbor screamed for help. Defendant went to the kitchen, and K.S. fled the apartment. Defendant grabbed K.S. by 4 her hair, trying to drag her back into the apartment. Defendant hit K.S. in the head with a kitchen pot as he followed her out of the apartment. Another neighbor grabbed a chair and struck defendant with it. Defendant then took the chair and used it to hit K.S. until the chair broke. K.S. used her arm to shield herself from the blows, she felt her arm break, and she fell to the ground. Defendant finally stopped hitting her and fled the scene. Defendant later told a family friend that he may have just killed his wife. K.S. suffered lacerations near her right jawbone, on the left side of her mouth, above her left ear, on the left side of her neck, and multiple lacerations on her scalp, chest, right forearm and left hand. Her left forearm was fractured. K.S. was taken to a hospital and required surgeries to address her wounds. Jury Verdict and Sentence Regarding the charges related to the August 31 incident, the jury found defendant guilty of attempted murder (count 1), infliction of corporal injury upon a spouse (count 2), and felony child endangerment (count 3) and found true the enhancement allegations of personal use of a deadly or dangerous weapon and infliction of great bodily injury. The jury did not find true the allegation that defendant attempted murder with premeditation and deliberation. As to the charges related to the February 8 incident, the jury found defendant guilty of infliction of corporal injury upon a spouse (count 4) and assault by force likely to produce great bodily injury (count 5) but not guilty of child endangerment (count 6). The trial court sentenced defendant to 16 years, four months in prison composed of the upper term of nine years for count 1, the attempted murder, plus consecutive terms of one year for the weapon enhancement and four years for the great bodily injury enhancement; a consecutive term of one year, 5 four months for count 3, child endangerment; and a consecutive term of one year for count 4, infliction of corporal injury upon a spouse. Punishment for the remaining counts was stayed under section 654. Motion to Vacate Under Section 1473.7 In January 2025, defendant filed a “motion to vacate judgment and conviction pursuant to Penal Code section 1473.7.”3 (Capitalization omitted.) Declarations supporting defendant’s motion provided evidence of the following. Defendant was born in Tonga in 1964. He first entered the United States in 1981, and he has been a lawful permanent resident since 1990. He is married to an American citizen, and he has 32 children and 62 grandchildren, who are all American citizens. He is currently in ICE custody. An immigration judge ordered defendant deported, and defendant has appealed that decision. In the criminal case, defendant was represented first by a private attorney, Paul Puri, and later by an attorney from the alternate defender’s office, Wayne Anderson. The archived prosecution file of the case indicates that, on October 26, 2004, the prosecutor conveyed an unsolicited offer to defendant’s first attorney Puri to resolve the case with the terms that defendant would plead to one count of attempted murder without premeditation and deliberation, admit the alleged enhancements (personally inflicting great bodily injury and personal use of a weapon), and plead to a 3 Previously, defendant filed pro. per. filings attempting to have his convictions dismissed and vacated under section 1016.5. At a hearing in May 2024, the court provisionally appointed attorney Ali Saidi, who stated the appropriate procedural mechanism for defendant’s immigration-consequences issue was a motion under section 1473.7. (Section 1016.5 permits withdrawal of a plea when the defendant did not know the immigration consequences, but defendant did not enter a plea in this case.)

6 misdemeanor violation of contracting without a license in an unrelated case for a determinate sentence of 12 years. In exchange, the prosecution would dismiss the remaining counts including all charges from the February 8 incident. However, neither of his attorneys ever told defendant about the plea offer. When defendant discussed his defense with his attorneys, neither ever advised him of the immigration consequences he was facing. Defendant declared, “Neither Puri nor Anderson explained that the charges were ‘aggravated felonies,’ ‘crimes of violence,’ deportable crimes of domestic violence, and deportable crimes involving moral turpitude. If I had known that even if I was acquitted of the life charges[4] but convicted of some of the lesser felonies, I would be subject to mandatory deportation for aggravated felonies, I would have directed them to do everything they could to try to negotiate an immigration safe disposition on my behalf. Not being separated from my family and the country I have known for over 40 years since I was brought here as a child has always been a priority for me and if I had been properly advised, I would not have advanced to trial, but would have sought a path to remain in the United States with my family.” Defendant’s attorney for the motion vacate, Saidi, stated in his declaration that he has over 20 years’ experience as a defense attorney in Contra Costa County representing indigent and immigrant clients in negotiating felony cases with the Contra Costa County Office of the District Attorney and that he had “practical experience at the intersection of criminal and immigration law by practicing in this realm exclusively for more than two decades before California Superior Courts, the Executive Office of 4 Defendant was charged with only one “life charge,” attempted premeditated murder (§ 664, subd. (a)).

7 Immigration Review, the Board of Immigration Appeals, and the Ninth Circuit Court of Appeals.” Saidi stated that defendant’s convictions rendered him “permanently deportable” because the offenses of attempted murder and infliction of corporal injury upon a spouse are “ ‘aggravated felonies’ under United States immigration law” and felony child endangerment “is a deportable crime of child abuse.” The attorney further stated that it is common in Contra Costa County cases with a charge of attempted murder “for that charge to be dismissed as part of a negotiated disposition, usually involving pleas to other lesser charges with the crux of the negotiation revolving around the amount of prison time and the number of violent or serious strike felony charges for purposes of priorability under California’s three strikes law.” He provided data of “PC 187/664 dockets [i.e., cases charging attempted murder] filed by the office of the District Attorney” from 2010 to 2024, which showed that “out of 1254 instances of initially charged [attempted murder] counts during that nearly 15 year period of time, the [attempted murder] count was dismissed 61% of the time (762) as opposed to convictions for [attempted murder] via plea or jury trial only 21% (265) of the time.”5 Saidi opined that, given defendant’s “insignificant prior criminal history,” the unsolicited offer from the prosecutor in this case, “and the direct consequence of deportation and family separation for Mr. Fonua, . . . there was a strong possibility of obtaining an immigration-mitigated offer in this case had Mr. Fonua been properly advised and had his lawyers attempted to defend against deportation via negotiation.” He stated that defendant’s 5 Saidi stated that, of the remaining cases, “16% (200) of those counts remain open or were consolidated, and there were acquittals or findings of Not Guilty by Reason of Insanity in 2% of the cases (27).”

8 criminal defense attorney could have fashioned a counter-offer that would have met the “prosecutorial objectives of punishment and priorability expressed in the DA’s original offer (a single strike felony for 12 years in state prison) yet that would defend against the aggravated felony and deportation consequences,” suggesting first-degree burglary or kidnapping as a potential principal offense coupled with other offenses. For example, he suggested defense counsel could have offered kidnapping (§ 207) with an upper term of eight years as the principal offense, plus two counts of felony false imprisonment (§ 236), one felony count of carrying a concealed dirk or dagger (§ 21310), two counts of misdemeanor battery of a spouse (§ 243, subd. (e)(1)), and three counts of misdemeanor child endangerment (§ 273a, subd. (b)) for a cumulative sentence of 12 years in prison. The People opposed the motion to vacate on the ground defendant “failed to show that there was an alternative disposition to which the prosecution would have agreed.” The People argued, “Although the Defense alleges . . . attempted murder charges are commonly dismissed through the plea bargaining process, each case is fact-specific. Here, Mr. Fonua stabbed, punched and assaulted the victim with a kitchen pot and a chair, breaking her arm and causing serious lacerations to her face. The victim was his wife and the mother of his three children. He did this in the presence of their youngest child, months after having committed another serious assault in front of their children. He fled the scene and told a friend he may have just killed his wife. [¶] It is speculative that the prosecution would have accepted a counter-offer including kidnapping or first-degree burglary along with other immigration-neutral charges given the deeply personal and extremely violent nature of the conduct at issue in this case.”

9 At the hearing on defendant’s motion, the trial court observed that there was sufficient evidence defendant was not properly advised about the immigration consequences of the criminal charges and, “the question really is prejudice.” The court took the matter under submission. Following the hearing, defendant submitted supplemental briefing and supporting exhibits, including a Contra Costa County criminal case summary which appears to show that a defendant, D.V., was initially charged with two counts of attempted murder with enhancement allegations of personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) in October 2020, and D.V. entered pleas to kidnapping and possession of an unregistered firearm and the attempted murder charges were dismissed in December 2021. Defendant argued that the disposition in D.V.’s case “was resolved to an immigration-neutral offer of carrying a firearm,” and this showed “there was a least a mere reasonable probability that Mr. Fonua could have received an immigration-neutral offer for his enhancement of use of deadly or dangerous weapon.”6 On February 13, 2025, the trial court filed a written order denying defendant’s motion to vacate. The court found, “Despite counsel’s valiant efforts to demonstrate that the majority of cases charged as attempted murders in Contra Costa County do not result in attempted murder convictions, there is simply no evidence that there was any likelihood whatsoever that the People would have offered, or the court would have 6 Defendant also submitted a chart appearing to show the dispositions of 22 cases from 2020 to 2024 in which defendants initially charged with attempted murder with a firearm enhancement under section 12022.53, subdivision (d), eventually resolved their cases with pleas to lesser crimes, most often some type of assault with a deadly weapon or force likely to cause great bodily injury (§ 245) plus an enhancement or additional weapon-related offense.

10 accepted a plea to charges that did not include” attempted murder, domestic violence, assault with a deadly weapon, or child endangerment. The court noted defendant’s case “was not solely an attempted murder case and there was no kidnapping alleged”; the case involved myriad charges, two separate incidents, and no “proof problems for the majority of the[] charges—evidenced by the jury verdicts of guilty” for attempted murder, two counts of infliction of corporal injury on a spouse with enhancements for great bodily injury and use of a deadly weapon, child endangerment, and assault by force likely to produce great bodily injury. DISCUSSION A. Applicable Law Section 1473.7 permits “[a] person who is no longer in criminal custody . . . [to] file a motion to vacate a conviction or sentence” on the ground “[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)(1).) When section 1473.7 originally took effect in 2017, the law provided relief only in cases where the conviction resulted from a plea. (Stats. 2016, ch. 739, § 1 [allowing a motion to vacate where “prejudicial error damag[ed] the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere”]; People v. Rodriguez (2021) 68 Cal.App.5th 301, 308.) Effective January 1, 2022, however, the Legislature “ ‘expand[ed] the category of persons able to seek to vacate a conviction or sentence as legally invalid’ ” to include “ ‘a person who was found guilty after a trial.’ ” (Carrillo, 11 supra, 101 Cal.App.5th at p. 13, quoting legislative analysis.) The Legislature did this by amending section 1473.7 to replace the phrase “plea of guilty or nolo contendere” with “conviction or sentence.” (Ibid.; Stats. 2021, ch. 420, § 1.) To succeed in having a conviction vacated under section 1473.7, a defendant must show, first, that he or she did not meaningfully understand the immigration consequences of the conviction and, second, that this misunderstanding resulted in prejudice. (People v. Hernandez (Aug. 13, 2026) __ Cal.5th __ [2026 WL 2343195]; Carrillo, supra, 101 Cal.App.5th at p. 14.) “[A] defendant who decides to go to trial, loses, and is sentenced can establish prejudice for purposes of section 1473.7, subdivision (a)(1) by showing there is a reasonable probability that (1) he or she would have done something differently—that is, would have taken another ‘path’ [citation]— and (2) the alternate path would have resulted in an immigration-neutral outcome.” (Carillo, at p. 20; accord Avena, supra, 119 Cal.App.5th at p. 632.) A defendant seeking to vacate a conviction under section 1473.7 has the burden to prove the grounds for relief by a preponderance of the evidence. (§ 1473.7, subd. (f)(1).) B. Standard of Review We independently review the denial of a motion to vacate under section 1473.7. (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).) “ ‘ “[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.” ’ ” (Id. at pp. 319–320.) When a motion is decided based solely on written declarations and other documents, “there is no basis for deference, and ‘it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.’ ” (Id. at p. 320.)

12 C. Analysis We accept defendant’s declaration that he did not meaningfully understand the immigration consequences of the charges he faced when he went to trial in 2005. The issue is whether defendant has shown his lack of understanding constituted prejudicial error. As we have described, prejudicial error under section 1473.7 requires the defendant to show “a reasonable probability that he would not have proceeded to a jury trial had he understood the immigration consequences” and “a reasonable probability that such a path would have resulted in an immigration-neutral outcome.” (Avena, supra, 119 Cal.App.5th at p. 632.) Defendant has not shown prejudicial error. We have considered the seriousness of defendant’s conduct, the strength of the prosecution’s case, and the lack of comparable offenses without immigration consequences, and we accept defendant’s attorney’s representation that his prior criminal history is “insignificant.”7 We conclude there is no reasonable probability that the prosecution would have agreed to, and the trial court would have accepted, an immigration-neutral disposition on the facts of this case. Multiple witnesses established that defendant repeatedly stabbed his wife with a kitchen knife, grabbed her by the hair and dragged her, punched her on the floor while their baby was very close to her, hit her head with a kitchen pot, 7 “To ascertain prejudicial error, [the court] . . . consider[s] ‘whether alternative, immigration-safe dispositions were available at the time of the defendant’s plea [or decision to go to trial]. Factors relevant to this inquiry include the defendant’s criminal record, the strength of the prosecution’s case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney’s charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences.’ ” (People v. Padron (2025) 109 Cal.App.5th 950, 964, quoting Espinoza, supra, 14 Cal.5th at p. 323.)

13 hit her with a chair until the chair broke, and broke her arm and left her with lacerations on her jaw, mouth, scalp, neck, chest, arm, and fingers.8 Defendant engaged in this conduct months after he punched and kicked his wife in front of their children, threatened her with a knife, and warned that he would hurt her and her family if she called the police on him. We agree with the People that, given the extremely violent nature of defendant’s conduct, it is not reasonably probable that he could have reached a disposition acceptable to the prosecution and the trial court that included not one of the offenses of attempted murder, infliction of corporal injury on a spouse, child endangerment, or assault by force likely to produce great bodily injury and that lacked any enhancement or crime including an element of personal infliction of great bodily injury. Any one of these offenses would have had adverse immigration consequences had they been part of a plea disposition. On appeal, defendant argues that prosecutors have “ethical obligations during plea bargaining” to consider immigration consequences. He cites a law journal article that describes a 2010 report and recommendation of the Criminal Justice Section of the American Bar Association, which “urges prosecutors and defense attorneys to work together whenever possible ‘to identify a plea—to a felony or misdemeanor offense—that is roughly equivalent to the one charged but is safer for immigration purposes.’ ” (Altman, Prosecuting Post-Padilla: State Interests and the Pursuit of Justice 8 In the opinion affirming defendant’s convictions on direct appeal from 2008, an earlier panel in this division described the evidence supporting the charges of attempted murder, infliction of corporal injury upon a spouse, and felony child endangerment arising from the August 31, 2004, incident as “overwhelming” and referred to the “overwhelming evidence documenting the bloody crime scene and [K.S.]’s extensive injuries.”

14 for Noncitizen Defendants (2012) 101 Geo. L.J. 1, 49.) We agree with this recommendation, and, indeed, prosecutors in California are now required, “in the interests of justice, . . . [to] consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.” (§ 1016.3, subd. (b), added by Stats. 2015, ch. 705, § 2.) But the immigration-neutral charges defendant has suggested as an alternative disposition—burglary, kidnapping, false imprisonment, carrying a concealed dagger, misdemeanor battery, and misdemeanor child endangerment—are not “roughly equivalent” to the violent crimes defendant was charged with and proved to have committed against his wife and child. Moreover, there is no evidence in the record that defendant committed a burglary or concealed a dagger. We have independently reviewed the record, and we conclude defendant has failed to show prejudicial error as required under section 1473.7. Accordingly, we affirm the trial court’s order denying defendant’s motion to vacate his convictions. DISPOSITION The order denying defendant’s motion to vacate under section 1473.7 is affirmed.

15 _________________________ Miller, J.

WE CONCUR:

_________________________ Richman, Acting P. J.

_________________________ Desautels, J.

A172784, People v. Fonua