The Court in Camacho recognized that the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are not limited to the Strickland test of prejudice, whether there was a reasonable probability of a different outcome in the original proceedings absent the error. See Strickland 466 U.S. at 694 as cited by Camacho.
The Camacho Court cites the following controlling cases in its prejudice analysis; In Martinez, the court concluded that because “the defendant’s decision to accept or reject a plea bargain can be profoundly influenced by the knowledge, or lack of knowledge, that a conviction in accordance with the plea will have immigration consequences …, and because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court ruling on a §1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome. Instead, the defendant may show prejudice by “convincing the court that he would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.” See also Lee v. United States (2017) )__ U.S.__ [137 S. Ct. 1958] (Lee); Ogunmowo, supra, 23 Cal. App. 5th at 78 – 80. The principles found in Martinez and Lee apply equally to a prejudice analysis under §1473.7. See Ogunmowo, supra, 23 Cal. App. 5th at p. 78.
As the United States Supreme Court pointed out, “[C]ommon sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. Lee, supra, 137 S. Ct. at 1966. For instance, in Lee, the court found that the defendant had demonstrated a reasonable probability that he “would have rejected any plea leading to deportation- even if it shaved off prison time- in favor of throwing a ‘Hail Mary’ at trial.” The Court there reasoned, Mr. Lee lived in the United States for decades [since leaving his home country], had established businesses, and maintained a family with an American citizen wife, and American-born children. The Camacho court offers a test, in applying the rules established to determine prejudice. The considerations include the age the defendant was brought to the United States, whether the defendant was educated in the United States, travel outside the United States, as well as community and family ties, marital status, children, and employment status.