Opinion
E068880
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL BONILLA, Defendant and Appellant.
David L. Annicchiarico, 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, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF70936) OPINION APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions. David L. Annicchiarico, 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, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
In 1997, pursuant to a plea agreement, defendant and appellant Manuel Bonilla pled guilty to one count of robbery (Pen. Code, § 211, count 1) and admitted that he used a dangerous weapon in the commission of count 1 (§ 12022, subd. (b)). In exchange, the trial court dismissed a charge of assault with a deadly weapon (§ 245, subd. (a)(1), count 2) and its attendant firearm enhancement (§ 12022, subd. (b)). The court sentenced him to two years on count 1 and a stayed term of one year on the weapon enhancement. It then suspended execution of the sentence and placed defendant on probation for three years, under specified conditions. On January 1, 2017, section 1473.7 went into effect. (Stats 2016, ch. 739, § 1.) It permits a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant's ability to understand the immigration consequences of the plea. (Former § 1473.7.) Defendant filed a motion to vacate his conviction under former section 1473.7. The court denied the motion.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends that the court erred in denying his motion under former section 1473.7. We affirm in part and reverse in part and remand the matter.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant entered a guilty plea, the statement of facts is taken from the probation officer's report.
On September 25, 1996, the victim was sitting in the driver's seat of his car at a gas station. Defendant and his cohort approached the driver's side window and asked for a cigarette. His cohort reached into the car and grabbed the victim's cell phone from the dashboard, and he and defendant ran to defendant's car. The victim and his friend pursued them, until defendant and others exited the car and started coming toward them. The victim returned to his car. Defendant approached him and stabbed him several times. Defendant and his cohort fled the scene but were later apprehended by the police. The victim identified defendant as the person who stole the cell phone and stabbed him.
On January 23, 1997, the Riverside County District Attorney filed an information alleging that defendant committed a robbery (§ 211, count 1) and committed assault with a deadly weapon (§ 245, subd. (a)(1), count 2). The information also alleged that he committed both counts personally using a deadly weapon. (§§ 12022, subd. (b) & 1192.7, subd. (c)(23).)
On July 8, 1997, defendant entered a plea agreement, pleading guilty to count 1 and admitting the weapon enhancement. Defendant initialed the box next to the statement: "If I am not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Defendant signed his name on the plea form beneath the statement: "I declare under penalty of perjury that the initials that appear above are my own, and that I have read and understand each statement that I have initialed." Defendant's trial counsel also signed the form beneath the statement: "I am the attorney for the above named defendant. I am satisfied that (1) the defendant understands his/her constitutional rights and understand[s] that a guilty plea would be a waiver of these rights; (2) that [t]he defendant has had an adequate opportunity to discuss his/her case with me, including any defenses he/she may have to the charges; and (3) that the defendant understands the consequences of his/her guilty plea. Furthermore, I join in the decision of the defendant to enter a guilty plea at this time."
Pursuant to the plea agreement, the court dismissed count 2 and the attendant weapon enhancement, imposed the low term of two years on count 1 and one year on the weapon enhancement. The court ordered the time imposed on the weapon enhancement stayed, suspended execution of the sentence on count 1, and released defendant on probation, under specified conditions.
On January 22, 2016, the trial court granted defendant's motion to set aside his guilty plea, pursuant to section 1203.4. A plea of not guilty was entered, and the court ordered the case dismissed.
On January 13, 2017, the court granted defendant's motion for certificate of rehabilitation and pardon. The certificate stated that the court decreed that defendant had been rehabilitated and was fit to exercise all the civil and political rights of citizenship, except as provided in section 4852.15.
On July 7, 2017, defendant filed a motion to vacate his conviction, pursuant to former section 1473.7. He asserted that he qualified for relief because his trial counsel's representation was so constitutionally ineffective that it rendered him unable to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea. Defendant specifically claimed that his attorney's representation fell below an objective standard of reasonableness since he did not adequately investigate the immigration consequences of the guilty plea, never discussed the immigration consequences of the plea, and did not attempt to obtain an immigration safe plea bargain. Defendant further argued that he was prejudiced because, if he had been properly counseled, he would not have pled guilty. He would have instead asked to seek an alternative, immigration neutral plea or gone to trial.
In support of the motion, defendant submitted a copy of the minute order from his plea hearing, a copy of his plea agreement, and a newspaper article from 2016 about the violence in El Salvador. He also submitted a declaration in which he stated that he was not advised by the court or his public defender that his felony conviction would have the effect of excluding him from admission or exposing him to deportation and denial of citizenship, that he signed his plea form but did not read it or understand its contents and thus was unaware that his conviction would have any adverse immigration consequences, that it was not until he consulted with an immigration attorney regarding his application for lawful permanent residency that he discovered he was subject to mandatory exclusion from the United States as a direct consequence of his felony conviction, and that, had he known he was bargaining away his lawful immigration status, he never would have agreed to a plea. Defendant did not submit a declaration from trial counsel.
On August 4, 2017, the court held a hearing on the motion. Defense counsel informed the court that defendant was currently working with an lawyer in immigration court, and the immigration judge said the problem was that defendant had a two-year sentence. Furthermore, even though he never served the time, and a section 1203.4 motion had been granted, the conviction still disqualified him for immigration purposes. Counsel asserted that defendant would have insisted on a different resolution, if he had been informed. The court acknowledged that defendant had become a productive contributor to the economy and had been law-abiding since his offense. However, it stated the following: "But the problem is . . . that I took [his] plea, and I know what I do when I take pleas, and he was advised of the . . . potential immigration consequences. He initialed on the plea form that he was advised of those consequences, and that he understood them. In his declaration, he says quite the opposite, and I don't believe him. I would expect him to say that given the predicament he apparently is in now. [¶] But in addition to the written advisement, I ask every single person who enters a plea in front of me if they understand each and every one of these consequences. And he said, 'yes.' " Defense counsel interjected that he was not contending the court did not comply with section 1016.5; however, section 1016.5 was not a bar for relief under section 1473.7. He then pointed out that if defendant had heard from his counsel that his plea would definitely have consequences, as opposed to potential consequences, the situation would be different. The court stated that there was a conflict in authority and proceeded to deny the motion.
We note that section 1203.4 "simply authorizes a court to grant relief to individuals who successfully complete the terms of probation by mitigating some of the consequences of conviction." (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1225.) In other words, it "does not, properly speaking, 'expunge' the prior conviction. The statute does not purport to render the conviction a legal nullity. Instead it provides that, except as elsewhere stated, the defendant is 'released from all penalties and disabilities resulting from the offense.' " (People v. Frawley (2000) 82 Cal.App.4th 784, 791.)
ANALYSIS
I. The Court Properly Denied Defendant's Motion With Regard
to Ineffective Assistance of Counsel
Defendant argues the court erred in denying the motion to vacate his conviction under former section 1473.7. He contends the court mistakenly believed he was ineligible for relief since he had been advised that his plea "may" have immigration consequences. He further claims his trial counsel rendered ineffective assistance by failing to research the actual immigration consequences of his plea and inform him that he would be subject to mandatory deportation. Defendant asserts he proved, by a preponderance of the evidence, that if he had known he would be deported, he would have rejected the agreement and "held out" for an immigration neutral plea or gone to trial. The People concede that defendant's robbery conviction qualified as an aggravated felony that made him deportable. However, they argue that an advisement of potential immigration consequences was sufficient in 1997. We conclude defendant has failed to demonstrate that his counsel's performance was deficient.
A. Standard of Review
"We independently review the order denying the motion to vacate which 'presents a mixed question of fact and law.' [Citations.] We defer to the trial court's factual determinations if supported by substantial evidence, but exercise our independent judgment to decide whether the facts demonstrate deficient performance and resulting prejudice." (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.)
B. Defendant Has Failed to Establish He is Entitled to Relief
Section 1473.7, provides that a person who is no longer imprisoned may move to vacate a judgment if the "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 plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) Thus, a defendant is required to demonstrate that he or she suffered prejudicial error. (Ibid.) "The court shall grant the motion to vacate the conviction or sentence 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).)
"Ineffective assistance of counsel that damages a defendant's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to relief under section 1473.7. [Citation.] To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75 (Ogunmowo); see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).)
Defendant contends his trial counsel's performance was defective under Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). In that case, the defendant, a lawful permanent resident, pled guilty to drug charges involving the transportation of a large amount of marijuana in his tractor-trailer. Before the defendant pled guilty, his counsel failed to advise him that he would face deportation after pleading guilty and, in fact, told him he " ' "did not have to worry about immigration status since he had been in the country so long." ' " (Id. at p. 359.) The United States Supreme Court concluded that it was not difficult to find deficiency since the consequences of the defendant's plea "could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect." (Id. at p. 369.) It further stated that "[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear." (Ibid.) Thus, the Supreme Court stated that to provide effective assistance of counsel, "we now hold that counsel must inform [the] client whether [the] plea carries a risk of deportation." (Id. at p. 374.)
The instant case is not analogous to Padilla. The court in Padilla stated that it found deficiency because the consequences of the defendant's plea could easily be determined from the statute, his deportation was mandatory, and his counsel advised him incorrectly. (Padilla, supra, 559 U.S. at pp. 368-369.) Unlike that case, defendant's trial counsel here did not advise him that he did not have to worry about the immigration consequences of pleading guilty. In other words, there was no evidence his counsel gave him incorrect advice.
In addition to finding Padilla factually distinguishable from the instant case, we also conclude it is not instructive here since defendant pled guilty over 10 years before the opinion in Padilla was issued. In Chaidez v. United States (2013) 568 U.S. 342 (Chaidez), the Supreme Court concluded that Padilla "announced a new rule" by imposing an obligation on trial counsel to understand and accurately explain the immigration consequences of a plea to a defendant before the entry of that plea. This rule was based on a determination that immigration consequences were potentially so profound that trial counsel had an obligation to accurately advise their clients about them. (Id. at pp. 352-354, 357-358; Padilla, supra, 559 U.S. at pp. 369.) Furthermore, the Supreme Court held that Padilla could not be applied retroactively to cases that were final at the time the opinion in Padilla was issued. (Chaidez, at p. 358.) Therefore, defendant's trial counsel here had no affirmative obligation in 1997 to research and advise defendant of the actual immigration consequences of his plea. (Id. at pp. 357-358.) As such, counsel's representation did not fall below the then-contemporary reasonable objective standard of practice.
In his reply brief, defendant acknowledges that Padilla is not retroactive. However, he argues that prior California court decisions imposed a pre-Padilla duty on trial counsel to inform their clients of the immigration consequences of their pleas. He relies upon People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano). In that case, the defendant submitted a declaration, stating that he spoke with his attorney twice prior to sentencing. He informed her that he was an immigrant, and she told him that if he pled guilty, he would serve just eight months in county jail. He asked his attorney if he would be deported if he pled guilty, and she said he would not. Subsequently, the defendant asked his attorney whether a guilty plea would prohibit him from obtaining citizenship. The attorney responded in the negative. He again asked if he would be deported, and she assured him he would not. The defendant stated that, based on these assurances, he pled guilty. (Id. at p. 1478.)
The Soriano court determined that the trial counsel's response to the defendant's immigration questions was insufficient, since it was not based on adequate investigation of federal immigration law. Moreover, had she researched the matter, she would have known his guilty plea made him deportable. (Soriano, supra, 194 Cal.App.3d at p. 1482.) The court determined that this erroneous advice constituted ineffective assistance of counsel because, when asked about immigration consequences, the advice his counsel gave him "was not founded on adequate investigation of federal criminal law." (Ibid.)
Defendant's reliance on Soriano is misplaced since that case is factually distinguishable. Contrary to defendant's claim, Soriano did not establish that defense counsel had a duty to research and advise the defendant of his immigration consequences as a general matter. In Soriano, the defendant stated in a declaration that he told his counsel he was an immigrant. (Soriano, supra, 194 Cal.App.3d at p. 1478.) It was uncontested "that counsel, knowing defendant was an alien [] resident in this country less than five years at the time he committed the crime, did not make it her business to discover what impact his negotiated sentence would have on his deportability." (Id. at p. 1480.) The defendant specifically asked if he would be deported if he pled guilty. (Id. at p. 1478.) The Soriano court concluded that the trial counsel was ineffective because her response to the defendant's immigration questions was insufficient. (Soriano, at p. 1482.) This was so because counsel assured the defendant twice, in response to his direct questions, that he would not be deported. (Id. at p. 1478.)
Unlike the defendant in Soriano, defendant here did not allege that he told his counsel he was an immigrant, or that he asked his trial counsel if his guilty plea would make him deportable. He also did not allege that his counsel assured him he would not be deported. In fact, in his motion, defendant expressly stated that he "never discuss[ed] his citizenship or immigration status at all with [his counsel]." In other words, unlike Soriano, there was no allegation and no evidence that defendant asked his counsel about the immigration consequences of his plea, that counsel misadvised him, or that defendant entered his guilty plea based on his counsel's false assurances. (Soriano, supra, 194 Cal.App.3d at p. 1479.) Thus, Soriano is inapposite.
Defendant argues that Soriano's holding "was not limited to when counsel gives incorrect advice." Rather, he claims the court "broadly, clearly, and repeatedly stated that attorneys have an independent, affirmative duty to research the true immigration consequences of a proposed plea." The Soriano court made no such statement. Furthermore, we note the court expressed at the outset of its opinion that it "confine[d] [its] discussion of the facts to those which [were] necessarily involved in the resolution of issues raised on appeal." (Soriano, supra, 194 Cal.App.3d at p. 1472.) In other words, its holding was specific to the facts of that case.
Defendant also relies upon People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio) in support of his position. However, in that case, the defendant claimed his counsel was ineffective for failing to advise him of his right to request a recommendation against deportation from the sentencing court where he was subject to deportation as a result of his conviction. (Id. at p. 102.) Defendant here is making no such claim. Thus, Barocio is inapposite.
In his supplemental letter brief, defendant further cites People v. Novoa (2019) 34 Cal.App.5th 564. However, that case has been depublished by the California Supreme Court. (People v. Novoa (July 24, 2019, S256488).)
In addition, defendant's motion to vacate was primarily based on his declaration, in which he claimed his counsel did not advise him that his conviction would "have the effect of excluding [him] from admission, or exposing [him] to deportation, and denial of citizenship." He also claimed that, even though he signed the plea form, he did not read it or understand it; thus, he was "unaware that this conviction would have any adverse immigration consequences." (Italics added.) Thus, the only evidence of counsel's deficient performance was defendant's own self-serving declaration. However, the trial court expressly found his declaration not credible, in light of the signed plea agreement and the court's own taking of his plea. We do not reevaluate witness credibility. (See People v. Tapia (2018) 26 Cal.App.5th 942, 953.)
Furthermore, the record does not contain a declaration from trial counsel, and defendant's current attorney did not provide a declaration in support of the section 1473.7 motion showing that trial counsel was unable or unwilling to provide a declaration. We also note there is no indication in the record that the prosecution was willing to agree to an immigration safe disposition. (See People v. Perez (2018) 19 Cal.App.5th 818, 830.)
On the record before us, we conclude defendant has not carried his burden of establishing that his counsel's performance was deficient. Thus, the court properly denied defendant's motion on this ground.
II. Defendant Has Failed to Demonstrate That His Plea
Was Not Knowing, Intelligent, or Voluntary
Defendant asserts that section 1473.7, by its terms, applies to any "prejudicial error damaging the moving party's ability to meaningfully understand" the immigration consequences of the plea. (§ 1473.7, subd. (a)(1).) He then claims that because he was "never informed that the offered plea would make him deportable, his waiver of his constitutional trial rights was not knowing, intelligent and voluntary."
In support of his claim, defendant cites Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl). However, the underlying purpose of Boykin and Tahl is to ensure that, before a defendant may enter a plea of guilty, he must be informed of certain constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right to confront his accusers. A guilty plea is knowingly and voluntarily entered if a defendant is informed of these rights before waiving them. (Boykin, at p. 243; Tahl, at p. 132; see People v. Kunkel (1985) 176 Cal.App.3d 46, 52-53.) Thus, Boykin and Tahl do not support defendant's claim that his waiver of constitutional rights was not knowing, intelligent, or voluntary because he was not told his guilty plea would make him deportable.
In his reply brief, defendant relies upon People v. Patterson (2017) 2 Cal.5th 885 (Patterson), in which the Supreme Court held the section 1016.5 standard advisement that a criminal conviction "may" have adverse immigration consequences did not bar the defendant from withdrawing his plea, based on the grounds of mistake or ignorance. (Patterson, at p. 895.) The defendant in that case was attempting to withdraw his plea under section 1018, six months after entering it. (Patterson, at p. 890.) Defendant here is attempting to vacate his conviction under section 1473.7, some 20 years after entering his guilty plea. Patterson is inapposite.
III. The Matter is Remanded For Defendant to Amend His Motion To Make a Showing
Under the Statutory Amendment
In a supplemental letter brief, defendant adds the claim that his own lack of understanding affords him relief in this case, apart from any error of his trial counsel. We will remand the matter to allow him to establish this claim.
After briefing was completed in this matter, section 1473.7 was amended to state that "a finding of legal invalidity [of the conviction or sentence] may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1).) Defendant cites People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho) and People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia), in support of his claim. According to these cases, a court should vacate a defendant's conviction if "the defendant simply proves by a preponderance of the evidence a '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 or nolo contendere.'" (Mejia, at p. 871.) A defendant's own error may entitle him to relief under section 1473.7. (See Camacho, supra, 32 Cal.App.5th at p. 1009 ["error" under section 1473.7 includes "defendant's own error in believing that a negotiated plea calling for no time in custody would avoid making him deportable, and in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States"]; accord, Mejia, supra, 36 Cal.App.5th at p. 871.) "[A] 'prejudicial error' occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty . . . had the person known that the guilty plea would result in mandatory and dire immigration consequences." (Mejia, supra, 36 Cal.App.5th at p. 871.)
Due to the new and retroactive amendment to section 1473.7, defendant merits the opportunity to amend his motion to attempt to make a showing that he is entitled to relief due to his "own error." (See Camacho, supra, 32 Cal.App.5th at p. 1009.) Therefore, we will remand the matter for that limited purpose.
In sum, we are affirming the trial court's denial of defendant's section 1473.7 motion to the extent it was based on his claim of ineffective assistance of counsel. However, we are conditionally reversing the order denying the motion and remanding the matter for him to amend the motion to prove his own error in not meaningfully understanding or knowingly accepting the actual or potential immigration consequences of his plea. The trial court may then reconsider the motion under the legal framework, as held in Mejia, supra, 36 Cal.App.5th 859. If defendant declines to amend his motion within 30 days, the trial court shall reinstate the order denying his section 1473.7 motion.
DISPOSITION
The order denying defendant's motion to vacate his conviction under section 1473.7 is affirmed as to the court's finding there was no ineffective assistance of counsel. The order is conditionally reversed and the matter remanded to the superior court for proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. RAPHAEL
J.