Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. DF007780A, L. Bryce Chase, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Nineteen-year-old Jorge Alfaro Marin entered a plea of no contest to felony engaging in sexual intercourse with a minor more than three years younger than himself, a violation of Penal Code section 261.5, subdivision (c), with the understanding that he would be sentenced to no more than a year in county jail and that he would not be required to register as a sex offender. Marin was sentenced to 90 days in jail and was placed on three years of felony probation.
Marin later filed a motion to vacate the judgment on the ground that he was denied effective assistance of counsel because his court-appointed attorney failed to give him accurate advice concerning the consequences of his plea on his immigration status. Marin is a legal resident of the United States and has been in the United States since he was six years old. His parents are also legal residents. The federal Immigration and Naturalization Service has initiated deportation proceedings against Marin. He has been detained in Arizona at a federal detention center, and was detained at the time of the hearing on the motion to vacate his plea.
After an evidentiary hearing, the trial court denied the motion.
FACTUAL HISTORY
Marin, who was then 18 years old, and his girlfriend, who had just turned 14 years old, both admitted engaging in consensual sexual intercourse. The girlfriend’s mother approved of the relationship between Marin and her daughter, although she was unaware of its sexual nature. After Marin was arrested, the mother gave consent for the two young people to marry, before learning that her daughter was too young under California law to do so. The mother stated in her declaration to the court that it was normal in Mexican culture for young girls to marry, even when the man was older. She asked that Marin not be punished.
Discussion
Marin claims the trial court should have granted his motion to set aside his plea on the ground that he was given incorrect information about the risk of his deportation under federal immigration law resulting from his conviction. We review the trial court’s denial of the motion for an abuse of discretion. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244.)
Criminal convictions may result in dire consequences under federal immigration law and are important matters for consideration when noncitizen defendants are faced with pleading decisions. The Legislature expressly has recognized the unfairness inherent in holding noncitizens to pleas they entered without knowing the consequent immigration risks. (See Penal Code, § 1016.5, subd. (d), added by Stats. 1977, ch. 1088, § 1, p. 3495; In re Resendiz (2001) 25 Cal.4th 230, 250 (Resendiz).) “[D]eportation is a drastic measure and at times the equivalent of banishment or exile .…” (Fong Haw Tan v. Phelan (1948) 333 U.S. 6, 10.) “To banish [noncitizens] from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later.” (Lehmann v. Carson (1957) 353 U.S. 685, 691 (conc. opn. of Black, J.).) As was the case in Resendiz, Marin has lived in this country with his family most of his young life. It is to be expected that the immigration consequences of the charges he faced were of utmost concern and that he expressed these concerns to his attorney prior to entering his plea.
Marin claimed in a declaration that, prior to entering his plea, he asked his attorney what the immigration consequences would be if he pled to a statutory rape charge. According to Marin, defense counsel asked Marin when his green card would expire. When told that the green card would expire in 2014, defense counsel told Marin that he would “be okay.” According to Marin, he never was advised that he would be deported if he admitted the offense of statutory rape. This testimony is contradicted by the waiver form that Marin signed prior to entering the plea and by defense counsel’s testimony. The waiver form, initialed by Marin, provides that “I understand that if I am not a Citizen of the United States, my guilty or no contest plea will result in my deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.” Defense counsel testified that, although they did not discuss the issue in great detail, “there was an understanding that a criminal offense would have a negative impact on his status,” including deportation.
The trial court resolved this conflict in the evidence against Marin. It found that Marin had been advised about the immigration consequences of the plea in accordance with Penal Code section 1016.5, subdivision (a), and that Marin entered his plea voluntarily and knowingly, understanding he could be deported as a result of his plea. While our review of the record is independent, and we are not bound by the trial court’s factual conclusions, even where the evidence is conflicting (In re Hitchings (1993) 6 Cal.4th 97, 109), any factual determinations made by the trial court are entitled to great weight. This is especially true when those determinations are dependent on questions relating to the credibility of witnesses the trial court heard and observed. (Resendiz, supra, 25 Cal.4th at p. 249.) While we accept the trial court’s credibility finding that Marin was told he could be deported, the operative word in the court’s finding is the word “could.” According to defense counsel, Marin was also told, based on his attorney’s experiences with past clients in similar situations, that if Marin pleaded to the lesser offense and went to county jail, “there would be a chance that he could avoid deportation and slip through.”
As a result, our inquiry does not end with a finding that Marin was told he could be deported. In our opinion, defense counsel set up a false sense of hope that was communicated to Marin that the lesser-included offense might result in his avoiding deportation. This interfered with Marin’s exercise of free will. Although Marin may have understood that he was pleading to a deportable offense, given counsel’s suggestion that Marin might avoid deportation, it is unlikely that he understood the virtual certainty that he would face deportation by entering his plea. “‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea.’” (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.)
Counsel’s suggestion, however, had little basis in law. According to federal immigration law, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” (8 U.S.C. § 1227(a)(2)(A)(iii).) A person convicted of an aggravated felony may not seek cancellation of removal. (8 U.S.C. § 1229b(b)(1)(C); § 1182(a); see also Abebe v. Mukasey (9th Cir. 2009) ___ F.3d ___ [2009 WL 50120].) Federal law lists a number of offenses that are defined as “aggravated felon[ies].” (See 8 U.S.C. § 1101(a)(43).) Included on that list are “murder, rape, [and] sexual abuse of a minor.” (8 U.S.C.§ 1101(a)(43)(A).) The meaning of the phrase “sexual abuse of a minor” is a matter of federal law, but is dependent on the elements used to define the state-law offense. (See Mugalli v. Ashcroft (2d Cir. 2001) 258 F.3d 52, 58.) A review of federal cases addressing the issue raised here, whether what amounts to statutory rape is sufficient to fall within the definition of “aggravated felony” for purposes of federal immigration law, reveals that, although there is disagreement among the courts about whether this was the type of crime Congress sought to include as an “aggravated felony,” there is no question the federal government has taken a hard line in these cases, and courts are deferring to the government’s definition of “aggravated felony.” (See Xiong v. I.N.S. (7th Cir. 1999) 173 F.3d 601, 608 [statutory rape should not be considered aggravated felony in immigration context]; U.S. v. Cruz-Guevara (7th Cir. 2000) 209 F.3d 644, 647 [consensual sex acts engaged in by 18-year-old and his 16-year-old girlfriend not aggravated felony]; but see, Mugalli v. Ashcroft, supra, 258 F.3d at pp. 60-61 [conviction under state statutory rape statute meets fed. government’s interpretation of “sexual abuse of a minor”]; Mattis v. Reno (1st Cir. 2000) 212 F.3d 31, 34-35 [holding that statutory rape is aggravated felony under fed. immigration law]; accord, Silva v. Gonzales (1st Cir. 2006) 455 F.3d 26, 29.) This is a harsh penalty for a crime that often goes unprosecuted and, if prosecuted, results in sentences that are light compared to other sexual crimes. Nonetheless, it appears that under federal law there was little hope that Marin would avoid deportation. And, as it turned out, Marin was immediately deported as a result of his plea. He entered the plea as a result of improper immigration advisements. Improper immigration advisements result in prejudice when it is reasonably probable the defendant would not have pleaded guilty if properly advised. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.)
Marin filed a declaration stating that, had he known he would be deported, he would not have entered the plea. We conclude that his declaration is credible and corroborated by his circumstances. Marin is a young man, just barely having reached adulthood. He was a legal resident of the United States and had spent nearly his entire life in this country. It is his home; he knows no other. His entire family lives here as citizens or legal residents. Had he realized the certainty of his plight in accepting the plea, despite its other penal advantages, he would have gone to trial rather than enter the plea. He had nothing to lose.
We agree the choice here was not between pleading guilty and being deported on the one hand and going to trial and avoiding deportation on the other hand. A conviction following trial would have subjected Marin to the same immigration consequences as his plea, complete with harsher penal consequences. (Resendiz, supra, 25 Cal.4th at p. 254.) We also agree the evidence was strong against Marin given that both he and the victim admitted engaging in sexual intercourse. However, as the court in People v. Castro-Vasquez, supra, 148 Cal.App.4th at page 1245, noted, the test set out in Resendiz is whether the defendant would not have pled guilty and would have insisted, instead, on proceeding to trial had the defendant had complete and accurate information about the immigration consequences of the plea. (Resendiz, supra, 25 Cal.4th at p. 254.) We believe the test here has been met. Although the probable outcome of a trial is a factor to be considered in assessing the likelihood that a defendant would have rejected a plea offer, it is but one factor. (Ibid.) There are others here that are significant.
Had Marin proceeded to trial as charged, he would have faced a maximum total punishment of three years in prison (although, with his lack of criminal history, the lower term of 16 months, or the middle term of two years, was the more likely sentence) and the possible requirement that he register as a sex offender, which becomes a nonissue if deported to Mexico.
Marin’s crime was a relatively minor offense. He has no criminal history. The victim and the victim’s mother did not want Marin to be punished. The court concluded that Marin took advantage of a situation (he had been welcomed into the girl’s home) to engage in a premature sexual relationship, but was otherwise a “good guy” who stayed out of trouble and took care of his life. The young couple had considered marriage, although the victim was too young to do so legally without court order. These are all factors which might have supported a stronger bargaining position had Marin rejected the plea and defense counsel been forced to bargain with the prosecutor further. (See People v. Bautista (2004) 115 Cal.App.4th 229, 240; People v. Soriano (1987) 194 Cal.App.3d 1470, 1480.)
On these unique facts, we conclude the trial court abused its discretion in denying the motion to vacate Marin’s plea.
DISPOSITION
The judgment is reversed.
WE CONCUR: Levy, J., Gomes, J.