Full Opinion

Filed 11/13/26 P. v. Khalatyan CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO THE PEOPLE, B347008 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. LA084055) HAYK KHALATYAN, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed. Law Offices of Michael Poole and Michael Poole 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. ______________________________ Defendant and appellant Hayk Khalatyan (Khalatyan) appeals from the denial of his motion to vacate his conviction or sentence. (Penal Code, § 1473.7, subd. (a)(1).)1 Khalatyan pleaded no contest to a crime of violence and was sentenced to 240 days in county jail, avoiding classification as an aggravated felony under the Immigration and Nationality Act (INA) because his sentence was less than one year. By violating probation on two occasions, however, his total sentence exceeded one year and his conviction became an aggravated felony. Khalatyan argues that he did not meaningfully understand the immigration consequences of his plea. Regardless, Khalatyan does not demonstrate prejudice. Therefore, we affirm. BACKGROUND I. Facts Khalatyan was granted asylum in the United States in 2006, when he was 10 years old, and became a permanent resident in 2008. In June 2016, Khalatyan drove through a red light at a high speed and hit a police car, injuring two officers, one of them seriously. II. Charges; Plea; Sentencing Khalatyan was charged with reckless driving causing a specified injury (Veh. Code, §§ 23103, subd. (a), 23105; count 1), and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). It was further alleged that count 2 inflicted great bodily injury (§ 12022.7, subd. (a)), making it a serious felony (§ 1192.7, subd. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 (c)(8)). Khalatyan pleaded no contest to assault with a deadly weapon and admitted the great bodily injury enhancement. The maximum term of imprisonment was seven years: four years for assault with a deadly weapon and an additional three years for inflicting great bodily injury. The terms of the plea agreement, however, provided for a term of probation to include 120 days in county jail rather than a term in state prison. Khalatyan initialed a provision on the plea form providing “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.” Khalatyan signed the form, indicating he had discussed each paragraph of the form with his attorney. Khalatyan’s attorney also signed the form, indicating he had reviewed the form with his client and explained the consequences of the plea. The minute order provides that Khalatyan was advised: “If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”2 The trial court sentenced Khalatyan to five years’ probation, including 240 days in county jail less credit for 240 days served. The court stayed the great bodily injury enhancement and the remaining charge was dismissed. 2 The transcript of Khalatyan’s plea hearing is not part of the appellate record. 3 III. Probation Violations; Removal Proceedings Two days after Khalatyan was sentenced, he violated probation. Police saw Khalatyan fail to stop at a stop sign. When they pulled him over and conducted a probation search, they found tar heroin in the car. Khalatyan was arrested for possessing drugs and drug paraphernalia. Khalatyan later stipulated that he had violated probation. The court continued probation on the same terms and sentenced Khalatyan to serve an additional 258 days in county jail less credit for 258 days served.3 In March 2019, Khalatyan was charged in a new criminal matter with possessing ammunition (§ 30305, subd. (a)(1)) and a probation violation was alleged based on the same conduct. The parties agreed that if Khalatyan admitted the probation violation, the district attorney would dismiss the separate case and recommend that Khalatyan receive the low term—two years’ imprisonment—on the violation. Khalatyan admitted to a violation of probation. The court imposed a sentence of two years in state prison less credit for 747 days served. Khalatyan asserts that, after completion of his two-year sentence, he was placed in removal proceedings for having been convicted of an aggravated felony under the INA. IV. Section 1473.7 Motion; Ruling; Appeal In April and May 2025, Khalatyan filed two motions to vacate his conviction and sentence (styled as motions to withdraw his guilty plea) pursuant to section 1473.7, subdivision (a), arguing that he did not understand the adverse immigration 3 The transcript of Khalatyan’s first revocation hearing is not part of the appellate record. 4 consequences of pleading guilty. Khalatyan’s counsel argued before the trial court that his client “misunderstood the consequences of a probation violation, not the consequences of the original plea.” Khalatyan submitted two primary pieces of evidence in support of his motions: first, his declaration; and second, the declaration of one of his counsel. In his declaration, Khalatyan stated that he did not understand the immigration consequences of his plea, that he did not discuss aggravated felonies with his attorney, that he would not have accepted the plea bargain if he understood its immigration consequences, and that his ties to the United States made avoiding immigration consequences a priority for him. Khalatyan also submitted a declaration from Nareg Gourjian, who represented Khalatyan during his plea proceedings. Gourgian stated that “the probation violation sentencing in this case was not succinct and straightforward” and “I do not recall whether I advised [Khalatyan] about the mandatory immigration consequence of removal and that the probation violation sentence is an aggravated felony for immigration purposes.” During his first probation violation proceedings, Khalatyan was represented by private counsel. During his second probation violation proceedings, Khalatyan was represented by private counsel. Khalatyan did not submit a declaration or any other evidence from either of these private counsel. In June 2025, after hearing argument, the trial court denied the motion to withdraw Khalatyan’s guilty plea. Khalatyan timely appealed. 5 DISCUSSION I. Applicable Law and Standard of Review A defendant who is no longer in custody may file a motion to vacate a conviction or sentence that “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).) Section 1473.7 applies to plea proceedings as well as probation violation proceedings. (People v. Carrillo (2024) 101 Cal.App.5th 1, 25–29.) “To establish eligibility to withdraw a guilty plea under section 1473.7[, subdivision] (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. [Citations.]” (People v. Hernandez (2026) 20 Cal.5th 598, 613 (Hernandez).) “A defendant establishes prejudice by showing that there is a ‘reasonable probability’ that they would not have entered the plea if they had ‘correctly understood its actual or potential immigration consequences’ and their options for defending against those consequences. [Citation.]” (Id. at p. 626.) In determining the credibility of a defendant’s claim of prejudice, a court considers the totality of the circumstances, including the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, whether the defendant had reason to believe an immigration- neutral negotiated disposition was possible, and the defendant’s criminal history. (People v. Lopez (2022) 83 Cal.App.5th 698, 6 714–715 (Lopez).) It is not enough for a defendant to simply declare that he would not have entered the plea or made the admission had he understood it would require his deportation; he must provide objective evidence to corroborate such an assertion. (People v. Vivar (2021) 11 Cal.5th 510, 530 (Vivar); Lopez, supra, 83 Cal.App.5th at p. 715.) “Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.” (People v. Espinoza (2023) 14 Cal.5th 311, 321 (Espinoza).) We independently review the denial of a section 1473.7 motion. (Vivar, supra, 11 Cal.5th at p. 527.) Where, as here, the trial court’s factual findings “ ‘derive entirely from written declarations and other documents,’ . . . no deference is owed” the trial court and “ ‘it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudic[ial] [error] under section 1473.7.’ ” (Espinoza, supra, 14 Cal.5th at p. 320.) II. Analysis A. Khalatyan’s no contest plea Khalatyan argues that when he pleaded no contest, he did not meaningfully understand that any probation violation resulting in a total sentence of one year would cause the offense to become an aggravated felony, subjecting him to removal. Khalatyan bears the burden of “show[ing], by a preponderance of the evidence” (Hernandez, supra, 20 Cal.5th at p. 613), that an “error damag[ed] [his] 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)). 7 Here, Khalatyan was clearly advised that this plea would have immigration consequences. He initialed the plea form stating that he “must expect [his] plea of guilty or no contest will result in [his] deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.” The minute order states that Khalatyan was advised this plea “will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” Both Khalatyan and his attorney signed the form, indicating that they had discussed the consequences of the plea. Khalatyan further argues that plea counsel did not explain the potential immigration consequences of future probation violations. In his declaration, Khalatyan states: “I had no discussion with my attorney about aggravated felonies under immigration laws and their application to state convictions.” Khalatyan also states: “I did not understand the extent of the seriousness of the charge to which I plead[ed] guilty had created for immigration purposes until I retained the services of [appellate counsel].” Khalatyan’s plea counsel’s declaration states: “I do not recall whether I advised [Khalatyan] . . . that the probation violation sentence is an aggravated felony for immigration purposes.” Finally, Khalatyan suggests that his admissions to subsequent probation violations demonstrate that he truly did not understand the full immigration consequences of his plea. We need not resolve whether this record is sufficient to establish error because Khalatyan cannot demonstrate prejudice. Khalatyan’s counsel admitted that this plea was intentionally structured to avoid immigration consequences: “The deal was 8 structured so that it was not an aggravated felony and because he had a green card he can survive one crime involving moral turpitude. So the attorney did a fine job at the original plea hearing.” Having received a disposition without immediate immigration consequences, Khalatyan provides no reason to believe that there could have been an even better deal with no possible immigration consequences, e.g., a misdemeanor disposition with a sentence of 364 days. (See People v. DeJesus (2019) 37 Cal.App.5th 1124, 1136–1137 [finding insufficient evidence that immigration-neutral negotiated disposition was possible where appellant did not offer any evidence from the prosecutor, his public defender, or an immigration expert]; People v. Abdelsalam (2022) 73 Cal.App.5th 654, 665–666 [finding insufficient evidence that immigration-neutral negotiated disposition was possible where appellant failed to provide declaration from expert or trial counsel].) Khalatyan has a significant criminal history, which is a relevant consideration in assessing prejudice. (See Lopez, supra, 83 Cal.App.5th at pp. 714–715.) In 2016, he was convicted of manufacturing, selling, or possessing metal knuckles (§ 21810) and placed on three years’ probation. While on probation, he committed the instant offense, assault with a deadly weapon, which caused grave bodily injury to a police officer. Khalatyan’s criminal history, particularly his tendency to commit additional crimes while on probation, weighs against a finding of prejudice. Finally, the record suggests that Khalatyan received the best possible deal. Given Khalatyan’s criminal history and the seriousness of the offense, as well as the fact that he committed the instant offense while on probation, the probation officer recommended a nonprobationary state prison sentence. 9 In sum, regardless of whether plea counsel adequately advised Khalatyan about the immigration consequences of any future probation violations, he has not demonstrated prejudice. Therefore, we affirm the trial court’s order. B. Khalatyan’s probation violations The People suggest that Khalatyan also argues on appeal that he was not advised by his subsequent attorneys of the immigration consequences before he admitted probation violations in 2017 and 2019. In addition to convictions, section 1473.7 permits a defendant to file a motion to vacate a sentence if the sentence is legally invalid due to a defendant’s failure to understand the potential immigration consequences or ineffective assistance of counsel. In this case, Khalatyan’s motion before the trial court sought to vacate his conviction, not his sentence. Khalatyan’s opening brief does not clearly articulate the People’s argument, and Khalatyan did not file a reply brief. Khalatyan’s declaration discusses his original plea, not his probation violation admissions, and Khalatyan does not provide declarations from the attorneys who represented him during those proceedings. Therefore, we do not interpret this case as reaching the issue raised by the People. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived”].) We take no position on any future motion to vacate Khalatyan’s sentence under section 1473.7. DISPOSITION The order is affirmed. 10 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. GOORVITCH, J. We concur: CHAVEZ, Acting P. J. RICHARDSON, J. 11