Opinion
H046155
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN JIMENEZ MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SM970581A)
I. INTRODUCTION
Defendant Juan Jimenez Mendoza appeals from an order denying his motion to vacate his sentence and withdraw his plea under Penal Code section 1473.7. Section 1473.7 allows a person who is no longer in criminal custody to file a motion to vacate a conviction or sentence that 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." (Id., subd. (a)(1).)
All further statutory references are to the Penal Code.
On appeal, defendant contends that he suffered "prejudicial error" within the meaning of section 1473.7 because federal immigration law changed after he entered his no contest plea to an assault charge in 1997, and the change in the law made him ineligible to apply for cancellation of removal. Defendant argues that, had he known his plea would result in his eventual deportation, he would have sought a different plea deal without such adverse immigration consequences. Defendant also contends that he acted with diligence in bringing the motion.
For reasons that we will explain, we will affirm the order denying defendant's motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
As defendant was convicted by plea, the facts underlying his offense are taken from the probation report, which was based on a police report.
Defendant and his brother worked at the same restaurant. In May 1997, defendant's brother was having "a minor verbal argument" with a coworker when defendant struck his brother in the face with a glass dinner plate. The plate shattered, and defendant's brother suffered several lacerations to the face. The glass penetrated the brother's eye, and he required surgery. A witness reported that prior to defendant smashing the plate, defendant asked his brother why he always came to work upset or mad. According to the witness, the brother gave defendant an " 'evil look,' " and defendant thereafter struck his brother with the plate.
B. The Information , Plea , and Sentencing
In June 1997, defendant was charged by information with assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, former subd. (a)(1)). He pleaded no contest to the charge on the condition that he would receive probation, and that he could later request to have the offense reduced to a misdemeanor. In his written waiver and plea form, defendant initialed an advisement that states: "I understand that if I am not a citizen of the United States a plea of 'Guilty[']/'No Contest' could result in deportation, exclusion from admission to this country, and/or denial of naturalization." (See § 1016.5, subd. (a).)
Defendant failed to appear for sentencing on July 31, 1997, and a bench warrant was issued for his arrest.
Sixteen years later, in 2013, defendant appeared in court. At a subsequent sentencing hearing in December 2013, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve 300 days in jail.
C. Defendant's Motion to Vacate the Sentence and Withdraw His Plea
In April 2018, defendant filed a motion to vacate his sentence and withdraw his plea under section 1473.7 on the ground that he "agreed to the stipulated sentence, without knowledge of the immigration consequences." According to defendant, at the time of his offense in 1997, he had been living in the United States for seven years. By the time of his motion in 2018, he and his wife had three children living with them: "a 23 year old United States Citizen son, a 20 year old daughter who is a DACA recipient, and a 12 year old United States Citizen son."
At the time of his motion, defendant was the subject of immigration proceedings. In his motion, he contended that in order to seek "Cancellation of Removal" in the immigration proceedings, he had to show good moral character among other requirements. Defendant argued that a conviction for a crime of moral turpitude would preclude him from showing good moral character. He contended that in 2017, the federal Board of Immigration Appeals determined that a conviction under section 245, subdivision (a)(1) qualifies as a crime of moral turpitude. (See Matter of Wu (2017) 27 I. & N. Dec. 8.) Defendant argued that, "according to this new case law," he was now ineligible for "Cancellation of Removal" and the immigration court had therefore "pretermitted his application for Cancellation of Removal on January 18, 2018."
Defendant contended that he "would not have pleaded no contest to the section 245, subdivision (a)(1) charge[] had he known it barred him from seeking Cancellation of Removal," but that "[h]e had no way to . . . know the consequence because it did not yet exist" at the time he entered his no contest plea. In a declaration in support of his motion, defendant stated, "I would not have accepted a conviction for section 245(a), had I known it would have caused my deportation. [¶] I would have tried for a better deal."
The prosecutor filed opposition to the motion and provided some of the legislative history of section 1473.7. The prosecutor contended that defendant should have availed himself of other remedies, and that he could not demonstrate "prejudicial error" within the meaning of section 1473.7, subdivision (a)(1).
D. The Trial Court's Ruling
On August 14, 2018, a hearing was held on defendant's motion. Defendant contended that because of new law that existed after he entered his no contest plea, he was facing immigration consequences that "he wasn't aware of because they didn't exist at the time" of his plea. Defendant argued that whether he was advised at the time of his plea or whether there was ineffective assistance of counsel was "irrelevant."
The trial court observed that defendant's counsel at the time of the plea "didn't do anything wrong, the law simply changed, so there was an added immigration consequence that no one knew." The court believed that section 1473.7 did not "encompass" and did not "give a remedy for this situation."
Defendant contended that "the purpose of the law is to prevent people from . . . facing harsh immigration consequences that they weren't aware of." Defendant argued that "he didn't know the consequence at the time of the plea," and that "the spirit of [section] 1473.7 extends to him."
The prosecutor contended that section 1473.7 requires "prejudicial error," meaning that "[s]omeone has to make an error." The prosecutor argued that if defendant was conceding that his original counsel "couldn't have advised him of the consequences because it didn't exist, he's outside the ambit of the statute."
Defendant contended that the statute was "at least arguably vague," and that he fell "within the purpose of the statute."
The trial court disagreed with defendant, stating that the statute was "pretty specific and not vague." The court expressed sympathy with defendant's situation because "[h]e has a family here" and he had "been here a long time," but the court explained that it was "bound by the law."
The trial court ultimately denied defendant's motion on the ground that there was no "prejudicial error" as required by the statute. The court questioned whether defendant's motion was filed with reasonable diligence but determined that it did not need to decide the issue because it was resolving the motion on substantive grounds.
Regarding the absence of error, the trial court stated that defendant's original attorney "couldn't have known about the change in law." The court determined that section 1473.7 did not provide relief in this circumstance.
Even if there was an error, the trial court found that defendant failed to show prejudice. For example, there was no declaration from the original attorney regarding whether the immigration consequence was important to defendant at the time of his no contest plea. As to the likelihood of success at trial, the court observed that the evidence against defendant "appear[ed] to have been really overwhelming" regarding the assault on his brother and the serious injuries suffered by the brother. Regarding the potential consequences after trial, the court found that the negotiated disposition was "a pretty good deal," because defendant was "looking at . . . a strike and four years in state prison" but received probation and the possibility of a reduction to a misdemeanor.
After the trial court made its ruling, the court allowed defendant to make a further record. Defendant argued that "he would have tried for a better deal had he known" the immigration consequences. He acknowledged, however, that he would be "speculating" as to how the case could have been resolved differently or "what the defenses might or might not have been."
III. DISCUSSION
Defendant contends that he suffered an error within the meaning of section 1473.7 because federal immigration law changed after he entered his no contest plea and the change made him ineligible to apply for cancellation of removal. He argues that he was prejudiced by the error because had he known his plea would result in his eventual deportation, he would have sought a different plea deal without such "dire immigration consequences." Defendant also contends that he acted with due diligence in bringing the motion.
The Attorney General contends that defendant's motion was properly denied for several reasons, including: (1) the documents that defendant filed in support of his motion did not show that his 1997 conviction had any actual or potential immigration consequence, (2) the 2017 decision by the Board of Immigration Appeals was not a change in the law as it existed when defendant entered his no contest plea, (3) defendant had not been in the United States for a sufficient period at the time of his plea and therefore he was not eligible for cancellation of removal, (4) even assuming there was an adverse change in the law, that change is not a proper basis for defendant to withdraw his plea, and (5) defendant failed to show "prejudicial error" under section 1473.7.
Because we find the issue of whether defendant suffered an error within the meaning of section 1473.7 dispositive, we address that issue first. In analyzing this issue, we set forth the general rules of statutory interpretation and then consider section 1473.7 and the specifics of defendant's contentions.
A. General Rules of Statutory Interpretation
For a question of statutory interpretation, "[w]e seek to 'ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' [Citation.] '[W]e begin by looking to the statutory language. [Citation.] We must give "the language its usual, ordinary import and accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible." [Citation.] If the statutory language is susceptible of more than one reasonable interpretation, we must look to additional canons of statutory construction to determine the Legislature's purpose. [Citation.] "Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent." ' [Citation.]" (Carmack v. Reynolds (2017) 2 Cal.5th 844, 849-850.) We review questions of statutory interpretation de novo. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.)
B. Section 1473.7
Section 1473.7 states that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence" when "[t]he 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." (Id., subd. (a)(1), italics added.) Section 1473.7 was added to the Penal Code effective January 1, 2017. (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1129 (DeJesus).) As originally enacted, "[t]he section provided relief to those people who were 'no longer imprisoned or restrained.' [Citation.]" (DeJesus, supra, at p. 1129; Stats. 2016, ch. 739, § 1; see also § 1473.7, subd. (a)(1) [current section applies to people who are "no longer in criminal custody"].) "According to the author, the bill was necessary because at the time, 'under California law, there [was] no vehicle . . . for a person who is no longer in actual or constructive custody to challenge his or her conviction based on a mistake of law regarding immigration consequences or ineffective assistance of counsel in properly advising of these consequences when the person learns of the error post-custody.' " (DeJesus, supra, at p. 1129, quoting Sen. Com. on Public Safety, Com. on Assem. Bill No. 813 (2015-2016 Reg. Sess.) July 7, 2015, p. 6.) Thus, "the purpose of the legislation was to 'fill a gap in California criminal procedure' [citation] by providing a means to challenge a conviction by a person facing possible deportation who is no longer in criminal custody and thus for whom a petition for a writ of habeas corpus is not available." (People v. Fryhaat (2019) 35 Cal.App.5th 969, 976.)
Effective January 1, 2019, while defendant's appeal was pending in this court, section 1473.7 was amended to state that "[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1), as amended by Stats. 2018, ch. 825, § 2.) This amendment "is a clarification of existing law and therefore applies to nonfinal judgments, including this appeal. [Citation.]" (People v. Mejia (2019) 36 Cal.App.5th 859, 865 (Mejia).)
The amendment effective 2019 also expressly requires the moving party to "establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization." (§ 1473.7, subd. (e)(1); Stats. 2018, ch. 825, § 2.) Because we dispose of this appeal on other grounds, we need not decide whether this amendment applies to defendant in this case. --------
The issue under section 1473.7 is what the defendant understood, or did not understand, when the plea was taken. (Mejia, supra, 36 Cal.App.5th at p. 866.) "[P]rejudicial error" in this context (§ 1473.7, subd. (a)(1)) means the person "(1) . . . did not 'meaningfully understand' or 'knowingly accept' the actual or potential adverse immigration consequences of the plea; and (2) had [the person] understood the consequences, it is reasonably probable [the person] would have instead attempted to 'defend against' the charges." (Mejia, supra, 36 Cal.App.5th at p. 862.)
" '[T]he test for prejudice considers what the defendant would have done, not what the effect of that decision would have been.' " (People v. Camacho (2019) 32 Cal.App.5th 998, 1010.) In other words, the defendant may show prejudice by establishing that he or she " 'would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.' [Citations.]" (Ibid.) For example, a defendant may "demonstrate[] a reasonable probability that he [or she] 'would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a "Hail Mary" at trial.' [Citation.]" (Id. at p. 1011.) However, " '[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he [or she] would have pleaded . . . . [Rather, they] should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.' [Citation.]" (DeJesus, supra, 37 Cal.App.5th at p. 1134.)
A motion under section 1473.7 must be filed with "reasonable diligence." (§ 1473.7, subd. (b)(2); former § 1473.7, subd. (b), added by Stats. 2016, ch. 739, § 1.) "[I]f the moving party establishes, by a preponderance of the evidence," the existence of the grounds for relief specified in the statute, the trial court "shall grant the motion." (§ 1473.7, subd. (e)(1).) "[T]he only finding that the court is required to make is whether the conviction 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." (Id., subd. (e)(4).) If the court grants the motion, the court must allow the moving party to withdraw his or her plea of guilty or no contest. (Id., subd. (e)(3).) "An order granting or denying the motion is appealable." (Id., subd. (f).)
C. Analysis
Defendant contends that he "would not have pleaded no contest to the section 245, subdivision (a)(1) charge, had he known it would bar him from seeking relief in the form of Cancellation of Removal. He had no way to know of said immigration consequence because it did not yet exist, due to lacking case law on the subject." Defendant argues that, "[h]ad [he] known that the plea would result in his eventual deportation, he would have attempted to receive a different deal, without such dire immigration consequences."
In evaluating whether defendant suffered "error" within the meaning of section 1473.7, the issue is what he understood, or did not understand, when the plea was taken. (Mejia, supra, 36 Cal.App.5th at p. 866.) Here, there is no evidence that, at the time defendant entered his no contest plea in 1997, he suffered an "error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea of . . . nolo contendere." (§ 1473.7, subd. (a)(1).) Indeed the premise of defendant's motion below and argument on appeal is that there was no actual or potential adverse immigration consequence at the time he entered his no contest plea in 1997.
In contending that he suffered an error within the meaning of section 1473.7, defendant relies on a purported change in the law in 2017, when the Board of Immigration Appeals determined that a conviction under section 245, subdivision (a)(1) qualifies as a crime of moral turpitude, which according to defendant made him ineligible to seek cancellation of removal. That purported change in the law, however, occurred 20 years after defendant entered his no contest plea. Defendant consequently fails to establish that he suffered an "error" within the meaning of section 1473.7, subdivision (a)(1) at the time of his plea.
Defendant contends that the "plain meaning of error, and the purpose of the statute supports the conclusion that a change in immigration law—after a plea of no contest—qualifies as error under section 1473.7." We are not persuaded by defendant's contentions.
First, regarding the plain meaning of error, defendant relies on a definition of error that includes " 'the difference between an observed or calculated value and a true value; [specifically]: variation in measurements, calculations, or observations of a quantity due to mistakes or to uncontrollable factors.' " (Italics omitted.) Defendant argues that "there was an error in [his] ability to observe and calculate the magnitude of the immigration consequences of his plea, due to the uncontrollable factor of future changes in immigration law."
We question whether this definition of error concerning " 'variation in measurements, calculations, or observations of quantity' " can apply to a defendant's understanding of the actual or potential adverse immigration consequences of a plea. We also observe that defendant in this case did not provide a declaration indicating that he had made an error in "observ[ing] and calculat[ing] the magnitude of the immigration consequences of his plea, due to the uncontrollable factor of future changes in immigration law." (Italics omitted.) Rather, his declaration was limited to stating that he "would have tried for a better deal" had he known a conviction for violating section 245, subdivision (a) "would have caused his deportation." Further, since as defendant admits, future changes in immigration law are an "uncontrollable factor," we are not persuaded that his inability to "observe and calculate" at the time of his no contest plea the asserted change in law regarding an assault conviction constitutes an error within the meaning of section 1473.7 thereby rendering his conviction or sentence legally invalid.
Second, defendant contends that the Legislature "intended to include subsequent changes in immigration law within the definition of prejudicial error."
In support of this argument, defendant relies on a statement from the bill's author that is contained in a report for the Assembly Committee on Public Safety. The author stated that Assembly Bill No. 813 would " 'give hope to those who have been wronged by an unlawful conviction by establishing a way to challenge it after their criminal custody has ended. Even though current law requires defense counsel to inform noncitizen defendants of the immigration consequences of convictions, some defense attorneys still fail to do so. Failure to understand the true consequences of pleading guilty to certain felonies, for example, has led to the unnecessary separation of families across California.' " (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 813 (2015-2016 Reg. Sess.) as amended Mar. 26, 2015, p. 3.) Nothing in this statement from the bill's author suggests that an adverse change in immigration law after a defendant pleads guilty or no contest was intended to be included in the definition of error under section 1473.7. Rather, this statement indicates that the bill's author contemplated that the potential or adverse immigration consequences would exist at the time of the plea although the defendant did not learn about those consequences until later.
Likewise, defendant's reliance on a quote from a co-sponsor of Assembly Bill No. 813 is similarly unhelpful to defendant. The co-sponsor of the bill stated: " 'While the criminal penalty for a conviction is obvious and immediate, the immigration penalty can remain "invisible" until an encounter with the immigration system raises the issue. Since 1987, California law has required defense counsel to inform noncitizen defendants about the immigration consequences of convictions. But, despite this requirement, some defense attorneys still fail to do so. Immigrants may find out that their conviction makes them deportable only when, years later, Immigration and Customs Enforcement initiates removal proceedings. By then, however, it is too late. Without any vehicle to challenge their convictions in state court, immigrants are routinely deported on the basis of convictions that should never have existed in the first place and would be thrown out if habeas corpus were available.' " (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 813 (2015-2016 Reg. Sess.) as amended Mar. 26, 2015, p. 5.) Again, this portion of the legislative history does not advance defendant's argument that the Legislature intended error under section 1473.7 to include an adverse change in immigration law after a defendant pleads guilty or no contest. Rather, this statement from the co-sponsor of the bill indicates that it was contemplated that the potential or adverse immigration consequences would exist at the time of the plea although the defendant did not learn about those consequences until later.
We are also unpersuaded by defendant's reliance on the amendments to section 1473.7, effective January 1, 2019, and legislative history pertaining to an effort to combat increased immigration enforcement. None of the amendments or legislative history quoted by defendant addresses or shows an intent by the Legislature to include as error under section 1473.7 a subsequent change in immigration law that creates actual or potential adverse consequences for a defendant's earlier plea of guilty or no contest.
Defendant also contends that "the [L]egislature's intent to provide habeas corpus-like relief to those who are not otherwise eligible for it, because they are no longer in custody, supports [his] position" that subsequent changes in immigration law are included within the definition of error under section 1473.7. In this regard, however, defendant fails to provide legal authority to support his contention that, "[h]ad [he] brought this motion when the immigration consequence was apparent, and while [he] was still in 'custody', he would have likely been able to seek habeas corpus relief."
In sum, we conclude that the "error in [defendant's] ability to observe and calculate the magnitude of the immigration consequences of his plea, due to the uncontrollable factor of future changes in immigration law" does not constitute an "error" within the meaning of section 1473.7, subdivision (a)(1). The trial court therefore properly denied defendant's motion to vacate his sentence and to withdraw his plea.
IV. DISPOSITION
The August 14, 2018 order denying defendant's motion under Penal Code section 1473.7 is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.