Opinion
G055400
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS SANTIAGO CALDERON, Defendant and Appellant.
Law Offices of Sheny Gutierrez and Sheny Gutierrez for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF0122) OPINION Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Law Offices of Sheny Gutierrez and Sheny Gutierrez for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jesus Santiago Calderon is facing the prospect of deportation as a result of a guilty plea conviction he suffered in 2014. Seeking to vacate the conviction, he contends his guilty plea was involuntarily rendered because he was unaware it could have adverse immigration consequences for him. However, the record shows appellant was repeatedly advised of this fact, and he has failed to prove his plea was involuntary. We therefore affirm the trial court's order denying his motion to vacate.
FACTS AND PROCEDURAL BACKGROUND
Appellant is a Mexican national. Having entered the United States as a juvenile, he was living in Santa Ana when this case arose on January 9, 2014. That day, appellant, then age 18, got his 16-year-old cousin intoxicated and had sex with her. He was subsequently charged with sodomy with a minor, which is punishable by up to three years in prison, and unlawful sexual intercourse with a minor not more than three years his junior, a misdemeanor. (Pen. Code, §§ 286, subd. (b)(1), 261.5, subd. (b).)
All further statutory references are to the Penal Code.
Appellant pleaded not guilty. At his arraignment, he was represented by a retained attorney, Byron G. Danell. Unable to make bail, appellant was remanded into custody. When he appeared in court for a pretrial hearing on March 10, 2014, he told the court he did not need an interpreter, and the minutes of that hearing reflect an interpreter was "no longer required for this case."
A month later, on April 11, appellant changed his plea. His plea agreement states that in exchange for pleading guilty to the charges, he would be placed on three years' probation on the condition he serve 180 days in jail with credit for time served. Because appellant had already accumulated 180 days of custody credit, that meant he would be released from custody immediately. In addition, although sodomy with a minor is a registerable offense (§ 290, subd. (c)), the plea agreement did not require appellant to register as a sex offender.
Among the provisions of the plea agreement that appellant initialed was paragraph no. 11. That provision provides, "Immigration consequences: I understand if I am not a citizen of the United States, my conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
Appellant also initialed paragraph no. 28, which states: "I offer my plea of guilty freely and voluntarily, and with full understanding of all matters set forth in the accusatory pleading and this [plea agreement]."
And he initialed and signed paragraph 30, which states, "I declare under penalty of perjury I have read, understood, and personally initialed each numbered item above, and I have discussed them with my attorney. I declare under penalty of perjury everything on this form is true and correct."
Defense Attorney Danell also signed the plea agreement. In so doing, he acknowledged, "I have explained to defendant each of the rights set forth on this [agreement]. I have discussed the charges and the facts with defendant. I have studied possible defenses to the charges and discussed those possible defenses with defendant. I have discussed the possible sentence ranges and immigration consequences with defendant. I also have discussed the contents of this [agreement] with defendant. . . . I agree that this [agreement] may be received by the court as evidence of defendant's advisement and voluntary, intelligent, knowing, and express waiver of the rights set forth [in] this [agreement]." (Italics added.)
At the plea hearing, the trial court accepted appellant's guilty plea, finding it was knowingly and voluntarily entered. Per the parties' agreement, the court suspended imposition of sentence and placed appellant on probation for three years without any registration requirement. It also gave appellant credit for time served, ensuring his immediate release from custody.
The reporter's transcript of the plea hearing is not included in the record on appeal. However, the minute order states, "The defendant has been advised of constitutional rights, waivers and consequences in writing pursuant to the [plea agreement]. The defendant makes the plea with a full understanding of all the matters set forth in the charging document and in the [plea agreement], that defendant has read, understood and personally initialed each item herein." (Italics added.) The minutes also reflect appellant was "advised of the possible consequences of plea affecting deportation and citizenship."
Despite these advisements, appellant hired a new attorney, Sheny Gutierrez, to attack his guilty plea and resulting conviction. In November 2014, Gutierrez filed a motion to vacate the conviction on the ground Danell was ineffective for failing to advise appellant of the immigration consequences of his plea. In connection with the motion, appellant filed a declaration in which he admitted he speaks English and signed the plea agreement. However, he alleged he never actually read the agreement and was thus unaware it could adversely affect his immigration status.
As it turned out, this motion to vacate was never heard. After being continued numerous times, it was eventually taken off calendar at the request of the defense.
Meanwhile, appellant remained on probation. In 2015, his probation was revoked and reinstated twice, resulting in short jail stints. Appellant also moved to modify the terms of his probation so he could live with his family. The motion alleged appellant was currently working toward his G.E.D.
On February 19, 2016, appellant was found in violation of his probation for the third time. The court sentenced him to 16 months in prison on the sodomy count, plus a concurrent six-month jail term for his misdemeanor offense. However, because appellant had custody credit exceeding the length of his sentence, he was released from custody.
A month later, on March 16, 2017, appellant, through attorney Gutierrez, moved to vacate his conviction pursuant to newly-enacted section 1473.7. Effective January 1, 2017, that provision allows a person who is no longer in custody to challenge a guilty plea on the basis it was obtained without a full and proper understanding of its immigration consequences. (§ 1473.7, subd. (a)(1).) Appellant argued he was entitled to relief under section 1473.7 because his previous attorney Danell failed to negotiate a plea agreement that was more sensitive to his immigration status. In addition, he claimed his plea was involuntarily rendered and prejudiced his ability to remain in the United States.
Appellant's motion did not include a declaration from defense attorney Danell, but it did include a declaration from immigration attorney Alma D. Puente. Puente declared her office represents appellant "in his ongoing removal proceedings before the Immigration Court in Los Angeles[.]" And in those proceedings, appellant is attempting to remain in the United States and obtain permanent resident alien status under the Deferred Action for Childhood Arrivals program, commonly known as DACA. However, because appellant pleaded guilty to sodomy, an "aggravated felony," he will not be able to prevail at his immigration hearing.
As part of his motion to vacate, appellant also submitted a lengthy declaration of his own. He alleged Danell never inquired about his immigration status or spoke to him outside of his court hearings. Moreover, neither Danell nor the court explained the immigration consequences of his plea to him. In this regard, appellant declared, "I recall signing a variety of forms and initialing statements in the plea, but was not explained by the interpreter [or anyone else] that this plea could or would have effects on my immigration status. . . . [In entering the plea,] I exclusively relied on the assistance of the attorneys present to make sure that this matter would be [put] behind [me] after I served the terms of the sentence as agreed to."
According to appellant, Danell not only failed to explain the contents of the plea agreement to him, he specifically instructed him not to read it. Consequently, he did not understand what the plea entailed in terms of future immigration consequences. Appellant further alleged that had he known what those consequences were going to be, he never would have pleaded guilty in the first place. While admitting the prospect of resolving the case without further incarceration was appealing to him, appellant claimed he felt pressured to accept the plea agreement because he had already served three months in jail, and Danell told him he could receive a significant prison sentence if he continued to fight the charges.
At the motion hearing, the judge found appellant was properly advised of the immigration consequences of his guilty plea, and that by pleading guilty, he got "what he hoped to achieve," in that he got out of custody. The judge found it hard to believe appellant "would have rejected the offer of probation and risked getting more time had he been more thoroughly explained the immigration consequences of his plea by his attorney." When asked if he had anything to say about that, appellant told the judge, "No ma'am." He did not appear to have any difficulty understanding the judge, nor did he request the assistance of an interpreter at any time.
Following the hearing, the judge issued an 11-page written order. In addition to finding appellant was adequately advised by the court and counsel, the judge determined there was no indication appellant could not comprehend English or understand the consequences of his guilty plea as set forth in the plea agreement that he initialed and signed. And with respect to appellant's allegation that Danell expressly instructed him not to read the agreement, the judge found that claim was "not only inherently incredible and unsupported, it is completely contradicted by the court file." Therefore, the judge denied appellant's motion to vacate his conviction.
DISCUSSION
Insisting his guilty plea was in fact involuntary, appellant contends the trial judge erred in denying his motion. We disagree and affirm the judge's ruling.
Section 1473.7 provides a mechanism for a defendant to challenge his guilty plea when he is no longer in custody. As applicable here, the statute allows a defendant to "prosecute a motion to vacate a conviction" if it was invalid "due to 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[.]" (§ 1473.7, subd. (a)(1).) The burden of proof is on the defendant to establish by a preponderance of the evidence he is entitled to relief under the statute. (§ 1473.7, subd. (e)(1).)
As a threshold matter, the Attorney General contends appellant's claim is not ripe for adjudication because he has not received a notice from immigration authorities asserting his sodomy conviction as a basis for removal, nor has any removal order become final against him due to said conviction. (See § 1473.7, subd. (b).) However, in her declaration in support of appellant's motion to vacate, immigration attorney Puente stated her office is representing appellant in "ongoing removal proceedings" in federal court. She also alleged appellant will be unable to prevail in those proceedings unless his sodomy conviction is vacated. This shows appellant has been sufficiently aggrieved by virtue of that conviction to invoke the protections set forth in section 1473.7. (See People v. Morales (2018) 25 Cal.App.5th 502 [section 1473.7 guards against a broad range of actual and potential immigration consequences and thus a defendant need not wait until his deportation is imminent to obtain relief under the statute].)
Turning to the merits, appellant contends there are multiple reasons why his guilty plea was invalid: 1) The trial court violated section 1016.5 by failing to advise him of the immigration consequences of his plea; 2) even if the court did advise him of those consequences, he did not understand them because he did not have an interpreter at the plea hearing; 3) defense attorney Danell violated his duty to investigate and advise him of the immigration consequences of his plea; and 4) Danell failed to explore "immigration neutral charges" and negotiate an "immigration safe" disposition of the case. Appellant also reiterates his claim of prejudice, alleging he never would have pleaded guilty had he known it could lead to his deportation.
Section 1016.5 states that before accepting a defendant's guilty or no contest plea to a felony charge, the trial court must advise the defendant "the offense for which you have been charged 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." (§ 1016.5, subd. (a).) --------
Although appellant faults Danell's performance in several respects - and he cited a plethora of ineffective assistance of counsel cases in his opening brief - he contends in his reply brief that those cases are "not applicable" to his claim. Instead, he urges us to limit our analysis "to whether his plea was entered into voluntarily, intelligently and within the bounds of due process." In appellant's view, the lack of advisement of immigration consequences at his plea hearing undermined his "ability to enter into a knowing and intelligent plea agreement in violation of the Fifth and Fourteenth Amendments to the United States Constitution." At appellant's insistence, we will limit our analysis to that issue.
To satisfy due process, a defendant's guilty plea must be voluntary and knowing. (Boykin v. Alabama (1969) 395 U.S. 238.) That means the defendant must have a proper understanding of what the plea entails and its likely consequences. (Brady v. United States (1970) 397 U.S. 742, 748.) Whether a plea satisfies this standard is determined from all of the relevant circumstances surrounding the plea. (Id. at p. 749.) Because guilty pleas "are accorded a great measure of finality" (Blackledge v. Allison (1977) 431 U.S. 63, 71), the defendant bears the burden of proving his plea was involuntarily rendered. (Id. at pp. 72-74.) Proof in the form of allegations that are conclusory in nature or that fly in the face of the record will not suffice in this regard. (Id. at p. 74.)
Moreover, the standard of review respecting a motion to vacate is highly deferential. In determining whether the defendant has met his burden of proving he entered his plea unknowingly and involuntarily, we must accept the trial court's factual findings if they are supported by substantial evidence, and absent a clear abuse of discretion, we must affirm the court's ultimate ruling on the merits. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We are not free to disregard the trial court's findings regarding the credibility of the defendant's allegations. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 176.)
Applying these principles to this case, it is clear appellant is not entitled to relief. He asserts he was never advised his guilty plea might have adverse immigration consequences for him, but the record says that both the trial court and defense attorney Danell told him this. As an officer of the court, Danell was presumably telling the truth when he represented in the plea agreement that he had discussed the immigration consequences of the plea with appellant. It is virtually unfathomable to think Danell expressly instructed appellant not to read the agreement, as appellant claims, and appellant alleged under penalty of perjury that he discussed the contents of the agreement with Danell.
Appellant's complaints about the lack of an interpreter also ring hollow. By his own admission, he came to this country when he was a juvenile, he is currently pursuing his G.E.D., and he speaks English. And not only did he fail to object to the lack of an interpreter at any of his court hearings, the trial court's minutes include these telling passages: "Defendant states that he . . . does not need an interpreter." "Spanish Interpreter no longer required for this case." Suffice it to say, there is substantial evidence to support the trial court's finding that appellant's claim about not reading and/or not being able to understand the plea agreement was less than credible.
As for the issue of prejudice, we need not decide whether appellant has proven he would not have pleaded guilty had he been adequately advised regarding the immigration consequences of his plea. There is overwhelming evidence in the record that he was in fact advised of, and understood, those consequences. That being the case, the trial court did not abuse its discretion in denying appellant's request for relief under section 1473.7. No cause for reversal has been shown.
DISPOSITION
The trial court's order denying appellant's motion to vacate his conviction is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. GOETHALS, J.