People v. Gazazyan CA2/3

Opinion

Filed 9/21/26 P. v. Gazazyan CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B342049

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA065038) v.

OVANES GAZAZYAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Diego H. Edber, Judge. Reversed and remanded. Sabrina R. Damast, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Ovanes Gazazyan appeals from the trial court’s order denying his motion to vacate his conviction under Penal Code section 1473.7.1 In 2010, Gazazyan entered a plea of no contest to one felony count of petty theft with a prior felony conviction for grand theft. The trial court found Gazazyan failed to show he did not meaningfully understand the consequences of his plea. On appeal, Gazazyan contends the court erred and that his failure to meaningfully understand the mandatory immigration consequences of his plea was prejudicial. While this case was pending, the California Supreme Court issued People v. Hernandez (2026) 20 Cal.5th 598 (Hernandez), clarifying the analysis the trial court must employ when evaluating a section 1473.7 motion and providing guidance as to what evidence may establish a defendant’s claim of error. Although we determine that the trial court’s ruling in this case was inconsistent with Hernandez, we also conclude that Gazazyan did not create a record establishing by a preponderance of the evidence that error damaged his ability to meaningfully understand, defend against, or knowingly accept the consequences of his plea. Since neither the trial court nor the parties had the benefit of Hernandez, we reverse the trial court order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND The Plea In May 2010, Gazazyan stole “Microsoft point cards” worth $99.98 from a Sears in North Hollywood. Later that month, the People charged Gazazyan by information with petty theft with prior grand theft felony convictions (§ 666). The information alleged that Gazazyan had two prior convictions for theft of an 1 Undesignated statutory references are to the Penal Code.

2 automobile (§ 487, subd. (d)(1)); he had suffered two prior prison terms pursuant to section 667.5, subdivision (d); and he had sustained three prior felony convictions pursuant to section 1203, subdivision (e)(4). In August 2010, Gazazyan pled no contest to petty theft with priors in violation of section 666 and admitted one of the prior conviction allegations. The negotiated disposition was three years of formal probation with the condition that Gazazyan serve 364 days in county jail. Gazazyan signed a felony advisement of rights, waiver, and plea form, which included the following advisement: “Immigration Consequences – I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.” The form also stated that before entering the plea, Gazazyan had the opportunity to discuss the consequences of the plea with his counsel. Gazazyan signed the form, indicating he read it and understood and agreed with what was stated in the form. His attorney certified that he had discussed the consequences of the plea with Gazazyan. During the plea hearing, the trial court asked Gazazyan whether he had gone over the contents of the waiver form and discussed his case “thoroughly” with his attorney. Gazazyan answered that he had. Gazazyan also answered in the affirmative when the trial court asked whether he understood everything his attorney had explained to him. The trial court then asked: “I want to make sure defense counsel, that you advised the defendant of the immigration consequences, including the likelihood or possibility or probability whatever it is 3 of deportation in light of the specific charges. Did you go over that?” Defense counsel replied that he had. To Gazazyan, the court inquired: “And specifically on the waiver form you also initialed that you read the potential immigration consequences. Did you do that?” Gazazyan stated that he had. The court asked, “And you understood what you initialed?” Gazazyan replied that he did. The trial court found Gazazyan expressly, knowingly, understandingly, and intelligently waived his rights. The court placed Gazazyan on three years of formal probation and ordered him to serve 364 days in county jail. He received 189 days of custody credits. Section 1473.7 Motion In July 2024, Gazazyan filed a motion to vacate his conviction pursuant to section 1473.7. Gazazyan argued he failed to meaningfully understand the mandatory immigration consequences of his plea, and he would never have accepted the plea offer had he understood those consequences. He asserted that his attorney failed to inform him of the specific adverse immigration consequences of his plea. He also contended objective evidence demonstrated it was reasonably probable he would not have entered the plea had he known of the adverse immigration consequences. According to a declaration Gazazyan submitted in support of the motion, he came to the United States as a refugee in 1994, when he was 13 years old. At the time of his plea, his wife and child were United States citizens and his parents and siblings lived in the United States with legal status. He had been consistently employed since he was 16 years old.

4 Gazazyan did “not recall being advised about the immigration consequences of [his] conviction by [his] attorney.” His attorney did not advise him his plea was to a “mandatory deportable and inadmissible defense, that it would subject [him] to mandatory detention consequences, and that it would disqualify [him] from certain immigration benefits and defenses.” Had he been properly informed, he would have been willing to “agree to a plea bargain for a more serious charge if it did not have these life-long immigration consequences” and he would have been willing to spend more time “in jail” to avoid “these mandatory consequences.” If such a plea could not be reached, he would have been willing to go to trial. At the time, staying in the United States with his family “was the most important thing to [him].” Gazazyan also submitted evidence of his marriage to a United States citizen, the citizenship of his child, the United States citizenship and legal resident status of his relatives, his education, and a letter of support from a neighbor. Gazazyan additionally submitted the declaration of an immigration attorney. The attorney stated that a conviction under section 666 is a crime involving moral turpitude, which is “a ground of deportability and inadmissibility. (8 U.S.C. § 1227(a)(2)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).) As a ground of inadmissibility, the conviction also renders Mr. Gazazyan ineligible to apply for permanent residency, despite his strong ties to U.S. citizens. (8 U.S.C. § 1255(a)). A crime involving moral turpitude is also a ground of mandatory immigration detention. (8 U.S.C. § 1226(c)(l)(A).)” In September 2024, the trial court held a hearing on the motion. Gazazyan did not testify, and the parties did not enter any additional evidence into the record. The People argued that 5 the transcript of the plea colloquy showed that the original trial court asked Gazazyan’s defense counsel whether he had advised Gazazyan of the immigration consequences, and counsel answered in the affirmative. Gazazyan had also signed a waiver acknowledging that he should expect he would be deported as a result of his plea. The People further pointed to Gazazyan’s declaration stating merely he did not “remember” if he was advised of the immigration consequences and asserted that Gazazyan had pled to “so many criminal matters” that it was “difficult to believe” he had no idea of the consequences of his plea. Gazazyan’s counsel responded that Gazazyan’s other criminal convictions were not relevant because they may have had different immigration consequences and the advisements he received may have differed. Counsel also argued that the waiver form by itself was insufficient because it did not convey the specific consequences of Gazazyan’s plea. Counsel asserted that the original trial court’s statements during the colloquy, and defense counsel’s response, did not establish that defense counsel had explained to Gazazyan that the immigration consequences were mandatory. Counsel further indicated that she had been unable to contact Gazazyan’s former trial counsel, despite multiple attempts to reach him. In October 2024, the trial court issued a written order denying the motion. The court cited the plea colloquy, finding it implausible that Gazazyan, “who has had many criminal convictions,” failed to understand the adverse immigration consequences when he was “advised of those consequences in open court and signed the waiver form under penalty of perjury attesting that he understood those consequences.” The court also 6 found not credible Gazazyan’s statement in his declaration that he did not recall his trial attorney advising him of the consequences of his plea or did not understand that the plea carried mandatory immigration consequences. The court noted that “the Judge specifically asked counsel if he advised the defendant of the immigration consequences, including the likelihood of deportation. To find otherwise, especially in light of the fact that this was not the defendant’s first change of plea, would be disingenuous.” Finally, the court found nothing in the record indicating that trial counsel did not meaningfully advise Gazazyan of the immigration consequences. The court concluded Gazazyan failed to meet his burden to show he was entitled to relief. Gazazyan filed a timely notice of appeal. DISCUSSION2 I. Section 1473.7 Section 1473.7, allows “[a] person who is no longer in criminal custody [to] file a motion to vacate a conviction or sentence.” (Id., subd. (a).) “To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) ‘error damaging [the defendant’s] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence’ and (2) that the damage resulted in prejudice.” (Hernandez, supra, 20 Cal.5th at p. 613.) On appeal, “we independently review the evidence in the 2 In May 2025, Gazazyan filed a request for judicial notice of his motions to vacate five other convictions, all of which occurred prior to the conviction at issue here; the supporting declarations 7 record.” (Hernandez, supra, 20 Cal.5th at p. 613.) When the trial court’s findings are based on written materials rather than the court’s observations of the defendant, “we do not defer to those findings” because we “are similarly situated to the trial court when interpreting a ‘cold record.’ ” (Ibid.) “[W]e may ‘ “ ‘reach a different conclusion [from the trial court] on an independent examination of the evidence . . . even where the evidence is conflicting’ ” ’ and the trial court’s conclusions are based in part on its assessment of ‘ “ ‘the credibility of witnesses [it] heard and observed.’ ” ’ ” (Ibid.) II. Hernandez Hernandez has clarified the analysis courts must apply when evaluating whether there was error damaging the defendant’s ability to meaningfully understand, defend against, and documents submitted with those motions; and the trial court orders granting those motions. He argues this evidence is relevant because it undermines the trial court’s determination that he must have understood the consequences of his plea since he had entered several pleas before. The People oppose the request on the basis that the evidence is irrelevant and was not presented to the trial court. We deny Gazazyan’s request for judicial notice. (The Chemical Toxin Working Group, Inc. v. The Kroger Co. (2026) 120 Cal.App.5th 276, 288, fn. 5 [declining to take judicial notice of materials unnecessary to resolution of the appeal]; Al Shikha v. Lyft, Inc. (2024) 102 Cal.App.5th 14, 21–22 [reviewing courts generally do not take judicial notice of evidence not presented to the trial court]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a court may take judicial notice of a document in a court file but not the truth of facts asserted in pleadings or affidavits filed with the court].) Our denial is without prejudice to Gazazyan seeking to introduce additional evidence in the trial court on remand.

8 or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. (§ 1473.7, subd. (a)(1).) “In determining whether a defendant has established error for purposes of section 1473.7(a)(1), we focus on the defendant’s subjective understanding at the time they entered their guilty plea. [Citation.] . . . ‘[T]he key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.’ [Citation.]” (Hernandez, supra, 20 Cal.5th at p. 614.) “Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry.” (Id. at p. 615.) “Courts must engage in a case-specific examination that involves assessing credibility and weighing circumstantial evidence.” (Ibid.) “The most direct evidence of a defendant’s subjective understanding consists of the defendant’s own statements to the court when entering the plea and in declarations or testimony given in support of their section 1473.7(a)(1) motion.” (Hernandez, supra, 20 Cal.5th at p. 617.) However, “[w]hile the focus of the error inquiry is on the defendant’s subjective understanding, a defendant’s bare assertion that they did not understand the immigration consequences or the options available to them to defend against those consequences is insufficient to establish error; the assertion must be corroborated by objective evidence.” (Id. at p. 615.) Our high court provided numerous examples of objective evidence that might corroborate defendants’ assertions that they did not understand the immigration consequences of a plea, had a misunderstanding that damaged their ability to defend against 9 adverse immigration consequences, or did not knowingly accept the immigration consequences. One category is evidence demonstrating that the defendant’s counsel failed to fully or accurately advise the defendant of the plea’s immigration consequences. (Hernandez, supra, 20 Cal.5th at p. 615.) “Such evidence may include evidence related to the quality of defense counsel’s representation of the defendant and the nature of their interactions,” and may be contained in “the record of the plea, including defense counsel’s written and oral representations to the court; in the defendant’s case file; or in declarations or testimony by the defendant, defense counsel, witnesses, or immigration law experts.” (Ibid.) “Relevant evidence includes . . . whether counsel fully advised the defendant of definite and potential immigration consequences of the conviction and sentence that would result from the plea,” whether counsel’s advice was accurate, and whether counsel discussed with the defendant alternative immigration-safe pleas or the advantages and disadvantages of going to trial. (Id. at pp. 615–616.) Another category is “evidence of the trial court’s efforts to confirm that the defendant understood the immigration consequences of entering a guilty plea and had an opportunity to discuss them with their attorney and tailor their defense strategy accordingly. [Citation.] Such evidence may be found in the written record, including the advisements and findings contained in the plea form, and the transcript of the plea proceedings, including any discussion related to immigration consequences in the plea colloquy.” (Hernandez, supra, 20 Cal.5th at p. 616.) Yet another category is “evidence of the defendant’s priorities relevant to the plea. This includes evidence of the defendant’s immigration status and prospects of obtaining 10 immigration benefits; evidence of how long the defendant has lived in the United States, at what age they came here, and the strength of their ties to their country of origin; and evidence of the nature and extent of the defendant’s ties to the United States and their family and community in this country. [Citations.] [¶] Evidence of the defendant’s personal characteristics may also shed light on their ability to understand the plea, its consequences, and their options. This includes evidence of the defendant’s education level, occupation, intellectual capacity, mental health, disability, literacy, age, and sophistication; evidence of the defendant’s English language proficiency and ability to understand the interpreter, if any; and evidence of the defendant’s prior experience with the criminal justice system.” (Hernandez, supra, 20 Cal.5th at p. 617.) Finally, the court explained that evidence of a defendant’s statements and conduct during and after plea proceedings may also show “understanding and informed acceptance of immigration consequences or lack thereof.” (Hernandez, supra, 20 Cal.5th at p. 617.) Ultimately, however, the touchstone is the defendant’s subjective understanding. Thus, that the trial court gave a generic immigration consequences advisement, or that the court confirmed generally that defense counsel discussed immigration consequences with the defendant, is relevant, but does not in itself establish that the defendant “received complete and accurate advice and meaningfully understood that advice.” (Hernandez, supra, 20 Cal.5th at p. 616.) Instead, the analysis must consider the totality of the circumstances. In Hernandez, the defendant established section 1473.7 error. Hernandez testified that her attorney had not told her 11 mandatory deportation was a consequence of her plea. (Hernandez, supra, 20 Cal.5th at p. 611.) She had signed a plea form providing an immigration consequences advisement and her attorney had certified on the form that he had explained any possible immigration consequences to her. (Id. at pp. 609–610.) However, the attorney had appeared on her behalf for the first time at the plea hearing. (Id. at p. 610.) Immigration consequences were not mentioned during the plea colloquy. (Ibid.) Hernandez testified that although she told the court she understood the plea form, she did not think deportation was a possible consequence. (Id. at p. 611.) She testified that her attorney had not explained the immigration consequences advisement to her and she signed the form because he told her to sign it. (Ibid.) She had never entered a plea before. (Id. at p. 620.) Her attorney did not speak her language, and she communicated with him only through an interpreter. (Ibid.) He did not ask for additional time to advise her on the immigration consequences of her plea or options for defending against them. (Ibid.) Two years after entering her plea, Hernandez obtained permission from probation to travel to Mexico, and she attempted to lawfully reenter at a port of entry. (Hernandez, supra, 20 Cal.5th at p. 621.) This suggested that she was, in fact, unaware of ongoing immigration consequences resulting from her plea. (Ibid.) When she entered the plea, she had lived in the United States for 36 years, her entire family lived in the United States, and she was married with five children and 14 grandchildren, two of whom she cared for regularly. She had no prior criminal record. (Id. at p. 609.)

12 On this record, the court determined that Hernandez had established by a preponderance of the evidence “error impeding [her] ability to meaningfully understand the immigration consequences of her plea and to defend against or knowingly accept those consequences.” (Hernandez, supra, 20 Cal.5th at p. 621.) That she had received an immigration consequences advisement in the plea form did not defeat the showing of error. (Id. at p. 622.) III. We Remand for the Trial Court to Reconsider the Motion, and to Allow Gazazyan to Develop the Record, Consistent With Hernandez A. The trial court’s ruling was inconsistent with Hernandez The trial court did not have the benefit of Hernandez when ruling on Gazazyan’s motion. As such, the court’s ruling focused on the prior court’s colloquy with Gazazyan at the plea hearing, in which the court confirmed that Gazazyan had reviewed the plea form with defense counsel, he had read and understood the immigration consequences advisement in the plea form, and defense counsel had “advised the defendant of the immigration consequences.” Based on this colloquy, the court found it implausible that Gazazyan did not understand the immigration consequences of his plea. However, as Hernandez has now clearly established, the trial court was required to focus on Gazazyan’s subjective understanding at the time he entered the plea, looking beyond the record of the plea and considering the totality of the circumstances. The advisement in the plea form and the trial court’s reference to that advisement alone did not show Gazazyan received complete and accurate advice, or that he meaningfully 13 understood that advice. (Hernandez, supra, 20 Cal.5th at pp. 616–617; People v. Curiel (2023) 92 Cal.App.5th 1160, 1175 (Curiel).) While the attorney’s signature on the plea form indicating that he explained any possible consequences of the plea to Gazazyan “supports an inference that he provided [Gazazyan] the advisement contained in the form,” it does not necessarily shed “light on whether [the attorney] knew the immigration consequences of the charged offenses and provided [Gazazyan] complete and accurate advice about [his] options for defending against them.” (Hernandez, supra, 20 Cal.5th at p. 625.) Although the trial court could permissibly determine that the record of the plea colloquy and plea form rendered Gazazyan’s declaration that he received no advice about immigration consequences not credible, the court was still required to consider the record as a whole to determine whether there was error under section 1473.7, subdivision (a). B. Remand is appropriate to allow Gazazyan to further develop the record Because we independently review the evidence in the record, the trial court’s application of an incorrect standard does not, however, dictate the outcome on appeal. As in Hernandez, we may reverse and direct the trial court to enter an order granting the motion if “the evidence in the record establishes the defendant’s eligibility for relief.” (Hernandez, supra, 20 Cal.5th at p. 621, fn. 4.) Here, however, Gazazyan’s evidence was insufficient to show error under section 1473.7, subdivision (a)(1). His declaration indicated only the following: “I do not recall being advised about the immigration consequences of my conviction by 14 my attorney, Armen Tashjian. He did not know [sic] advise me that my plea in this matter was a mandatory deportable and inadmissible offense, that it would subject me to mandatory detention consequences, and that it would disqualify me from certain immigration benefits and defenses. . . . I only became aware of these consequences much more recently, when I sought legal advice about my immigration status. I was not aware of them at the time of my plea.” While Hernandez establishes that it is the defendant’s subjective understanding that matters and the court must consider the totality of the circumstances, a defendant’s “bare assertion” of misunderstanding is not sufficient on its own. Here, Gazazyan declared that he did not receive advice from his attorney about the immigration consequences of his plea. Yet, these statements were unaccompanied by any other objective evidence. Gazazyan did not, for example, provide evidence otherwise “related to the quality of defense counsel’s representation of [him] and the nature of their interactions.” (Hernandez, supra, 20 Cal.5th at p. 615.) Unlike the defendant in Hernandez, Gazazyan did not proffer evidence that his attorney did not speak his language or that he had not met with the attorney before the date of the plea. And, as the trial court pointed out, his suggestion that he received no advisement from his counsel at least partially conflicted with the transcript of the plea hearing. Gazazyan’s declaration failed to resolve the inconsistency of his statements with the plea colloquy. He stated that he “did not recall” his attorney advising him about the immigration consequences of his conviction, but also affirmatively declared that the attorney did not advise him about specific consequences. (Id. at p. 633.) While not dispositive, 15 these inconsistencies undermined the credibility of his statements in the declaration. (See id. at p. 619 [because the plea form indicated defendant received an immigration consequences advisement and attorney discussed it with her, our high court credited the trial court’s implied finding that defendant’s testimony that she was “never told” about the possibility of deportation was not credible].) While in Hernandez the plea colloquy did not mention immigration consequences, here the trial court expressly asked Gazazyan whether he understood the immigration consequences advisement in the plea form, and expressly asked defense counsel whether he had advised Gazazyan of the immigration consequences of the plea. This suggests Gazazyan was “made aware of the possibility that a conviction could have serious immigration consequences and the need to consult with an attorney about any immigration-related concerns.” (Hernandez, supra, 20 Cal.5th at p. 616.) The Hernandez court stressed that error does not turn on what an attorney or the court told the defendant and, instead, the focus is on “the defendant’s state of mind: what the defendant subjectively understood—or did not understand—when entering the challenged plea.” (Hernandez, supra, 20 Cal.5th at p. 626.) Evidence that a defendant received an immigration consequences advisement therefore does not necessarily defeat a showing of error. Further, as in Hernandez, the plea form’s lack of advisements about Gazazyan’s specific circumstances, and the inconsistency between the form’s suggestion of mandatory consequences and the court’s reference to possible or probable consequences, had the potential to create confusion or uncertainty about the actual consequences of the plea. (Id. at 16 p. 620; People v. Vivar (2021) 11 Cal.5th 510, 519, 533; People v. Padron (2025) 109 Cal.App.5th 950, 962 [a form’s general advisement may not speak to defendant’s particular status].) But Gazazyan did not testify or declare that when the court asked him whether he understood the plea form, he did not believe serious immigration consequences were an actual possibility. (Cf. Hernandez, supra, 20 Cal.5th at p. 611.) He did not declare that the advisement he received in the plea form and confirmed with the court confused him, led him to believe immigration consequences were not mandatory, or that he was unable to understand the advisement. Indeed, his declaration simply did not address the plea form or his statements to the court about the immigration advisement in the form at all. Unlike the defendant in Hernandez, Gazazyan had prior experience in the criminal justice system. (Id. at p. 617 [evidence of the defendant’s prior experience with the criminal justice system is relevant].) Gazazyan’s appellate briefing indicates that at the time of the plea he had already been subject to immigration removal proceedings, based on a prior conviction. He did not proffer evidence that he took actions consistent with a belief that the plea had no immigration consequences, such as leaving the country and attempting to reenter. (Id. at p. 621.) On the record before us, Gazazyan’s implied suggestion in his declaration that he received no advice about immigration consequences is not credible. He further provided no objective evidence to corroborate his assertion in his declaration that his attorney simply did not advise him about the mandatory immigration consequences that flowed from the conviction. He offered no evidence to explain or contextualize his statement to the court that he had read and understood the plea form’s 17 advisement that he “must expect” the plea “will result” in “deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.” (See Curiel, supra, 92 Cal.App.5th at pp. 1175–1177 [language that plea will result in deportation did not defeat defendant’s showing that she did not meaningfully understand plea consequences, demonstrated by evidence of discussions with attorney, counsel’s advice that she should accept plea, attorney’s testimony at hearing, and subsequent conduct showing a lack of awareness of immigration consequences]; People v. Manzanilla (2022) 80 Cal.App.5th 891, 906 [despite plea form warning of deportation, attorney’s notes indicated she did not advise of mandatory deportation; defendant felt pressured to sign plea form; and defendant had trouble reading the form because of cataracts].) Gazazyan’s declaration did provide evidence of his “priorities relevant to the plea.” (Hernandez, supra, 20 Cal.5th at p. 617.) He declared that he had come to the United States as a young teenager and refugee; at the time of the plea, he was married with a child, and both his wife and child were United States citizens; and his parents and siblings lived in the United States. He declared that staying in the United States with his family was “the most important thing” to him and he would have been willing to plead to a more serious charge, accept more time in custody, or go to trial to avoid the immigration consequences of the plea. But the record lacked evidence of Gazazyan’s “personal characteristics” suggesting he was unable to “understand the plea, its consequences, and [his] options.” (Hernandez, supra, 20 Cal.5th at p. 617.) Gazazyan did not highlight any such evidence to show that his ability to understand the consequences of his 18 plea was impaired. The evidence in the record indicates that Gazazyan participated in the proceedings without an interpreter and he had significant prior experience with the criminal justice system. According to the probation report, he told a probation officer that he completed the 11th grade, he had attended some community college and trade school, and he received a “network technician certificate.”3 None of this evidence created an inference that he was unable to understand the plea, its consequences, or his options. Hernandez explains that “ ‘no specific kind of evidence is a prerequisite to relief.’ ” (Hernandez, supra, 20 Cal.5th at p. 618.) But “[b]ecause the burden is on the defendant to establish error and because courts must consider the totality of the circumstances in determining whether the defendant has satisfied this burden, it will generally be in a defendant’s interest to create a robust record.” (Ibid.) On the record before us, we would conclude that Gazazyan has not shown by a preponderance of the evidence error damaging his ability to meaningfully understand the immigration consequences of his plea and to defend against or knowingly accept those consequences. However, like the trial court, Gazazyan did not have the benefit of Hernandez, which has clarified the showing necessary for a defendant to establish the requisite error under section 1473.7. We therefore conclude this is one of the cases Hernandez suggested is appropriately remanded to “allow the defendant an opportunity to make a fuller presentation of evidence with the guidance [Hernandez has] provided in mind and [to] permit the trial court to make a new ruling taking that 3 Gazazyan’s motion confirmed that he had been enrolled at United Education Institute in 1999.

19 additional evidence into account.” (Hernandez, supra, 20 Cal.5th at p. 621, fn. 4.) DISPOSITION The order denying Gazazyan’s section 1473.7 motion to withdraw his plea and vacate his conviction is reversed. The matter is remanded to the trial court with directions to conduct a new hearing on Gazazyan’s section 1473.7 motion, consistent with Hernandez, and permitting the parties to offer additional evidence. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ADAMS, P. J.

We concur:

HANASONO, J.

DELGADO, J.* * Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.