Opinion
G056317
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. MOHAMED KAMAL ABBAS, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10HF2051) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
Mohamed Kamal Abbas filed a motion under Penal Code section 1473.7 to vacate his 2011 conviction for residential burglary based on a guilty plea. (All further undesignated statutory references are to the Penal Code.) Abbas contended his conviction was invalid because, due to prejudicial error, he did not meaningfully understand and knowingly accept the adverse immigration consequences of his guilty plea. The trial court denied the section 1473.7 motion on the ground Abbas failed to demonstrate prejudice; more specifically, the court concluded Abbas failed to prove by a preponderance of the evidence he would not have entered the guilty plea had he known it would result in his deportation.
We conclude Abbas made the requisite showing of prejudicial error meriting relief under section 1473.7. Consequently, we reverse the trial court's order denying his motion to vacate the conviction. On remand, we direct the court to allow Abbas to withdraw his guilty plea.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, the Orange County District Attorney charged Abbas, then 19 years old, with first degree residential burglary (count 1, §§ 459, 460, subd. (a)) and receiving stolen property (count 2, § 496, subd. (a)). The complaint alleged Abbas was ineligible for probation if convicted of first degree burglary (§ 462, subd. (a)).
In 2011, pursuant to a plea deal, Abbas pleaded guilty to residential burglary; on the prosecution's motion the trial court dismissed the stolen property charge and the section 462, subdivision (a), allegation, suspended imposition of sentence, and placed Abbas on three years formal probation on the condition he would serve 30 days in jail.
At the change of plea hearing, Abbas initialed the box next to the immigration advisement on the plea form which stated: "I understand that if I am not a citizen of the United States the conviction for the offense(s) charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.) The trial court gave Abbas the same immigration advisement orally, but substituted the word "will" for "may." The court asked Abbas if he understood the advisement and Abbas answered, "Yes."
Hours after Abbas showed up at Theo Lacy Jail to begin serving his 30-day sentence, Immigration Customs and Enforcement (ICE) officials arrived and took custody of him. Abbas spent the next 18 months in immigration holds and in custody at various detention facilities. He applied for an adjustment of status to lawful permanent resident; an immigration judge denied his application and ordered Abbas's removal based on his 2011 residential burglary conviction. Abbas unsuccessfully appealed the immigration judge's order, first to the Board of Immigration Appeals and then to the Ninth Circuit. Abbas is currently under a final deportation order. A. The Motion to Vacate the Conviction
In May 2017, Abbas filed the underlying motion under newly enacted section 1473.7 to vacate his residential burglary conviction and withdraw his guilty plea. Effective January 1, 2017, section 1473.7 allows a person no longer in custody to ask the court to vacate a conviction which "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 plea of guilty[.]" (§ 1473.7, subd. (a)(1).) The court must grant the motion to vacate "if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a)." (§ 1473.7, subd. (e)(1).)
The motion to vacate argued Abbas's residential burglary conviction was legally invalid and should be set aside because Abbas did not understand the immigration consequences of his guilty plea when it was entered, and his counsel provided ineffective assistance by "fail[ing] to investigate and advise Mr. Abbas about the devastating immigration consequences of his guilty plea and fail[ing] to defend against such consequences by attempting to negotiate a less harmful alternative plea[.]"
The section 1473.7 motion pointed out that at the time Abbas accepted the plea bargain at counsel's urging, the law required defense counsel to investigate and advise immigrant defendants of the actual immigration consequences of a guilty plea. (Padilla v. Kentucky (2010) 559 U.S. 356, 367-369, 374 (Padilla); People v. Soriano (1987) 194 Cal.App.3d 1479, 1479-1480.) The motion pointed out Abbas's guilty plea to residential burglary carried a "clear" consequence of mandatory deportation. According to the supporting declaration of Abbas's postconviction motion and immigration counsel, Victor Cueto, a conviction for residential burglary, "an aggravated felony, carried the worst of all possible immigration consequences; it triggered presumptively mandatory deportation[,]" barred immigration relief based on family hardship or length of residency, barred any future entry into the United States, and was "a permanent bar to naturalization. [Citations.]" The motion asserted plea counsel's failure to advise Abbas of "this critical information" prejudicially damaged Abbas's ability to meaningfully understand, defend against, or accept the adverse immigration consequences of the plea.
Abbas asserted he never would have accepted the plea agreement had he known of these adverse immigration consequences and would have directed counsel to seek an immigration-safe alternative plea or prepare for trial instead. Cueto cited in his declaration several possible alternative dispositions that would not have involved mandatory deportation. (See Padilla, supra, 559 U.S. at p. 373 [knowledgeable defense counsel "may be able to plea bargain creatively . . . to craft a conviction and sentence that" will avoid a "conviction for an offense that automatically triggers the removal consequence"].) Cueto stated in his declaration plea counsel should have negotiated for a guilty plea to the receiving stolen property count, or an offense such as possessing burglary tools, trespass, or disturbing the peace, rather than residential burglary, none of which triggers mandatory removal.
Abbas also submitted his own supporting declaration. In it, Abbas explained the circumstances leading up to the plea agreement. He stated that after his arrest, the trial court released him from jail on his own recognizance. Abbas retained private counsel who made a few court appearances on Abbas's behalf before conveying an "'offer' from the District Attorney." Counsel told Abbas the prosecution offered to dismiss count 2 (receiving stolen property) in exchange for a guilty plea to count 1 (residential burglary). Under the deal, Abbas would receive a sentence of 30 days in jail, "with the further understanding that I would only have to serve 15 actual days, and I could complete the actual jail sentence through community service." Counsel assured Abbas the offer was a "'great deal'" and so Abbas accepted the deal.
As instructed, Abbas showed up at Theo Lacy Jail at 6 p.m. on a Friday night. "I [had been] informed by my attorney that I would be there for about 6 hours. At around midnight, I was to be released to complete my sentence through Community Service. This did not occur. Instead, I was picked up by Immigration Customs and Enforcement (ICE), and I began a journey through various jail systems, Immigration holds, Immigration Jails and detention centers, from Downtown Los Angeles to Lancaster, such that I was in custody, in some facility or another, for approximately 18 months."
Abbas explained his attorney failed to inform him about the immigration consequences of his plea before he pleaded guilty, and it was only through the immigration proceedings that he learned his "conviction for the Burglary charge" was what "caused me all these problems and made me deportable. I never knew such a thing was possible. Nobody ever informed me this could have occurred."
Abbas declared: "My attorney did not explain to me, in detail, the meaning of the Immigration Consequences warning [on the Tahl form]. I did not understand, nor was it explained to me, that the conviction, itself, would result in me being deported. . . . I thought it was just a general warning that the Court gives to everybody and that it did not apply to me specifically as my sentence was so brief and was being converted to Community Service."
Abbas further declared: "If I had known then what I know now, I would have never plead[ed] guilty to the charge. I would have never jeopardized my status in this Country in such a manner. I would have taken the matter to trial if I had known I was going to be held in custody for 18 months rather than the days of Community Service I was promised. And, I never would have accepted the 'deal' if I knew I would be ordered removed from this Country with no possibility of returning. [¶] My entire focus was on the promise made to me by my attorney as to the few days of jail/community service I was going to serve to resolve this entire case."
To bolster his claim he "would have never plead[ed] guilty" had he known the plea would lead to deportation, Abbas provided the following personal details: "Prior to this incident, I had never been arrested, let alone been charged with a crime. I came to this Country from Egypt with my family at the age of 8. I am a High School Graduate and, at the time of this arrest, I was graduating from Irvine Valley College with a 4.2 GPA and had been accepted at UCI as a transfer student." B. The Order Denying the Motion to Vacate
The trial court conducted an evidentiary hearing on Abbas's motion to vacate the conviction. After hearing from both sides, the trial court stated that even assuming plea counsel failed to advise Abbas of the immigration consequences of pleading guilty, relief under section 1473.7 was unwarranted because Abbas failed to show prejudice. The court said Abba's declaration was devoid of facts suggesting "he had a defense to the charges, nor did he submit anything to corroborate his claim that he would not have [pleaded] guilty had he known the immigration consequences of his guilty plea."
The trial court also made a finding Abbas's declaration was not "completely credible" because it stated he had never been arrested before committing the residential burglary, but his "rap sheet" showed "an entry . . . for an arrest for petty theft" as a juvenile. The court told Abbas's counsel this rap sheet entry, and a brief discussion of it and Abbas's "'thefts as an adult'" in the unpublished Ninth Circuit decision affirming Abbas's deportation order, "call[] into question the veracity of your client's declaration altogether, unfortunately."
In a subsequent minute order, the court repeated its findings Abbas failed to show prejudice because he "provides no facts which would suggest he had a defense to the charges, nor does he submit anything to corroborate his claim that he would not have [pleaded] guilty had he known the immigration consequences of his guilty plea. Moreover, his credibility appears questionable."
In articulating its reasons for doubting Abbas's credibility, the court again pointed to Abbas's statement in his declaration that he previously "had never been arrested or charged with a crime[.]" The court found "this suggests he had not previously been in trouble with the law. However, his rap sheet in the court file" reflects Abbas's detention ("no complaint was filed") for petty theft at the age of 15. The court then again cited an excerpt from the unpublished Ninth Circuit decision in Abbas's immigration appeal which referred to "a police report concerning his alleged theft of credit cards as a juvenile" as well as his "'thefts as an adult and initial denial of these thefts. . . .'" The court stated: "This excerpt, combined with the entry on defendant's rap sheet tends to cast doubt on his claim that he was never arrested prior to his arrest in the present case. Even if it is true that defendant was not technically arrested, the suggestion in his declaration that he had no prior contact of this nature with law enforcement was misleading, and it therefore adversely affects his credibility in the present motion."
The minute order concluded: "Consequently, the court concludes that defendant has not met his burden on the issue of prejudice because he has failed to submit credible, objective, independent facts which would show, by the preponderance of the evidence, that he would not have accepted the proposed disposition had he known its immigration consequences. ([People v.] Martinez [2013] 57 Cal.4th 555, 565-566.)"
II
DISCUSSION
A. Preliminary Matters
"[T]o establish a 'prejudicial error' under section 1473.7, a person need only show by a preponderance of the evidence: (1) he did not 'meaningfully understand' or 'knowingly accept' the actual or potential adverse immigration consequences of the plea; and (2) had he understood the consequences, it is reasonably probable he would have instead attempted to 'defend against' the charges." (People v. Mejia (2019) 36 Cal.App.5th 859, 862 (Mejia).) If the movant shows prejudicial error by a preponderance of the evidence, the court is required to grant the requested relief. (§ 1473.7, subd (e)(1).)
In ruling on a section 1473.7 motion to vacate a conviction, the trial court's focus is on the defendant's decisionmaking. (Mejia, supra, 36 Cal.App.5th at p. 866 [agreeing "'the mindset of the defendant and what he or she understood . . . at the time the plea was taken'" is "[t]he key to the statute].) As the court explained in People v. Chen (2019) 36 Cal.App.5th 1052 (Chen), "The question is not whether the defendant would have received a more favorable outcome in the case overall or whether the defendant would have been convicted of the same crimes even if he had proceeded to trial. [(People v. Camacho (2019) 32 Cal.App.5th 998, 1010-1012 (Camacho).)] Instead, the focus is whether, if aware of its immigration consequences, the defendant would have rejected the plea. [Citation] In some cases, a defendant 'would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a "Hail Mary" at trial.' (Jae Lee v. United States (2017) ___ U.S. ___, (Lee).) The defendant shows prejudice if he can convince the court 'he would never have entered the plea if he had known that it would render him deportable.' (Camacho, supra, 32 Cal.App.5th at pp. 1011-1012.)" (Chen, supra, 36 Cal.App.5th at p. 1058.)
We review the trial court's order denying the motion to vacate the conviction de novo. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).) Under this standard, we "accord deference to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate" prejudicial error requiring relief under section 1473.7. (Ogunmowo, supra, 23 Cal.App.5th at p. 76.) B. Abbas Proved Prejudicial Error by a Preponderance of the Evidence
The People urge us to apply an abuse of discretion standard of review, but the majority of courts that have considered the issue have concluded de novo review is the correct standard for reviewing an order denying a section 1473.7 motion to vacate. (See People v. Tapia (2018) 26 Cal.App.5th 942, 950; People v. Olvera (2018) 24 Cal.App.5th 1112, 1116; Ogunmowo, supra, 23 Cal.App.5th at p. 76.) We agree.
Abbas argues the trial court erred in concluding he did not prove prejudicial error by a preponderance of the evidence. Abbas contends the court reached this conclusion by "erroneously discount[ing] [his] declaration and ignor[ing] essential facts in the record specific to [Abbas] and his situation at the time of the plea that support [his claim] he was prejudiced." Those facts include that Abbas came to America with his family at age eight, graduated from high school here, was graduating from community college with a 4.2 grade point average and soon transferring to UCI to complete his undergraduate education. Additionally, Abbas vigorously fought his deportation order in the immigration courts. Abbas argues these undisputed facts corroborate his claim he never would have accepted the plea offer had he known it would result in his deportation.
Abbas argues the trial court erred in reaching the opposite conclusion — that no evidence supported his claim of prejudicial error — based entirely on the court's determination Abbas lacked credibility. The court found Abbas lacked credibility because of his purportedly "misleading" and "inaccurate" statement in his declaration that he had never been arrested or charged with a crime before committing the residential burglary. But, as Abbas points out, his statement he had no prior arrest was true.
According to Abbas's rap sheet, to which the court referred at the hearing, Abbas's one juvenile incident involved petty theft for which he was neither arrested nor charged. Instead, the 15-year-old Abbas had been detained and released to his parents. Consequently, no substantial evidence supports the trial court's finding Abbas's statement was "inaccurate." Moreover, we find the court unreasonably concluded Abbas's statement, despite its actual veracity, was intentionally misleading and, thus, "calls into question the veracity of [his] declaration altogether."
We are not bound by credibility determinations that are arbitrary or unreasonable. (See Ogunmowo, supra, 23 Cal.App.5th at pp. 79-80 [trial court's credibility determination not entitled to deference where "the conclusion is not supported by the record"]; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1364, fn. 9 ["we can conceive of no rational basis for the court to reject Cave's testimony and do not feel compelled to disregard it"]; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck) [court may not arbitrarily reject uncontradicted evidence or do so without a rational basis].) Unlike the trial court, we find no reasonable basis to discount Abbas's declaration.
The undisputed facts in Abbas's declaration concerning his personal history and his circumstances at the time of his guilty plea demonstrate his deportation to Egypt alone at the age of 19 would necessarily involve the hardship of leaving family and home. On top of those losses, Abbas would be forfeiting his opportunity to complete his college education as a transfer student at a prestigious public university. These circumstances corroborate Abbas's assertion in his declaration, "I never would have accepted the 'deal' if I knew I would be ordered removed from this Country with no possibility of returning." Given all Abbas had to lose if deported, no basis exists to support the court's conclusion Abbas accepted the plea deal with a "meaningful understand[ing]" his guilty plea would result in his deportation.
Our conclusion Abbas accepted the plea deal without a "meaningful understand[ing]" of its immigration consequences is bolstered by the fact his plea counsel failed to explore the possibility of immigration-safe alternative pleas. The record reflects his counsel did not speak to Abbas about any offer other than the "great deal" of pleading to residential burglary. Contrary to the Attorney General's argument the availability of an alternative plea to a lesser offense is mere "speculation," the record supports the inference the prosecution would have considered a plea to an offense carrying less dire immigration consequences. The very favorable sentence the prosecution offered Abbas for a strike offense suggests either the District Attorney had problems with the case or was influenced by the young man's plight, or both. In any event, defense counsel's failure to discuss an immigration-safe alternative plea with Abbas further corroborates Abbas's claim he did not know about the immigration consequences of his plea deal because his attorney never discussed those consequences with him.
At the hearing on the motion, the prosecution acknowledged Abbas "got an extraordinarily good [i.e., light] sentence for residential burglary." --------
The Attorney General argues the record "affirmatively shows" Abbas "understood and knew the consequences of his plea, which was mandatory deportation." The argument is based on the trial court's admonishment at the plea hearing "in compliance with section 1016.5" that "'If you are not a citizen of the United States, a conviction for this offense will have the consequence of deportation[,]'" and the fact Abbas "did not object" and "accepted the plea deal after obtaining immigration advisements from the court and affirming that he had been explained the consequences by counsel."
The trial court's oral admonishment, however, conflicted with the written admonishment on the Tahl form. The latter advised Abbas his conviction "may" result in deportation while the court orally told him it "will." Moreover, Abbas and his counsel acknowledged on the Tahl form under penalty of perjury that counsel discussed with his client only the Tahl advisement which did not specifically warn Abbas his conviction would lead to deportation.
We conclude Abbas satisfied both prongs of the test for "'prejudicial error'" set forth in Mejia, supra, 36 Cal.App.5th at p. 862. The evidence shows he did not "meaningfully understand" he would be deported as a result of his guilty plea and, moreover, that he would not have pleaded guilty had he known of that consequence. Consequently, the trial court erred in denying his motion to vacate the conviction as invalid due to prejudicial error. (§ 1473.7, subd. (e).) The courts in Mejia and Camacho concluded under similar circumstances the appropriate remedy is to direct the trial court to grant the motion. (Mejia, supra, 36 Cal.App.5th at p. 873; Camacho, supra, 32 Cal.App.5th at pp. 1011-1012.) We agree.
III
DISPOSITION
The order denying the motion to vacate the conviction is reversed and the matter is remanded with directions to the trial court to enter a new order granting the motion to vacate and to allow Abbas to withdraw his guilty plea.
ARONSON, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.