Opinion
B332199
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. ALATORRE HUMBERTO OCHOA, Defendant and Appellant.
Jose R. Jordan for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. KA084668 Joan M. Chrostek, Judge.
Jose R. Jordan for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
WEINGART, J.
Criminal guilty pleas in drug cases by noncitizens can have immigration consequences. A plea to a charge considered an aggravated felony under federal law subjects the defendant to removal from the United States without the opportunity for obtaining discretionary cancellation of removal. A plea to a charge considered a controlled substance offense but not categorized as an aggravated felony also subjects the defendant to removal, but affords him or her the ability to pursue (without any guarantee of success) discretionary relief such as cancellation of removal to remain in the United States.
In 2008, Mexican citizen and United States resident Alatorre Humberto Ochoa pleaded guilty to an aggravated felony involving possession for sale of heroin. After learning his guilty plea made him removable without exception, he withdrew it. He instead pleaded no contest in 2009 to a non-aggravated felony controlled substance offense that still made him removable, but afforded at least the possibility of seeking discretionary relief from removal.
In 2022, Ochoa sought to vacate his 2009 conviction pursuant to Penal Code section 1473.7, subdivision (a)(1), which permits a court to vacate a past conviction 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 conviction." (Ibid.) Ochoa's motion argued no one, including his former criminal defense counsel, explained to him the immigration consequences, if any, of his 2009 plea. Ochoa also asserted that a change in the law years after his 2009 plea meant his controlled substance offense could now be considered an aggravated felony subjecting him to removal without the possibility of discretionary relief from removal. At the evidentiary hearing on his section 1473.7 motion, Ochoa changed his testimony from asserting his counsel did not explain any immigration consequences to instead claiming his criminal defense counsel informed Ochoa he was not going to have any problems with immigration, and that Ochoa relied on that advice instead of the admonitions he received before pleading no contest.
Further statutory references are to the Penal Code unless otherwise specified.
The court denied Ochoa's motion, and observed both that Ochoa knew there were immigration consequences before entering his plea and that his criminal defense counsel obtained a plea for him that was, at the time, "immigration safe" without explanation of what the court meant by that term. Ochoa argues we must reverse because the trial court erroneously concluded that his 2009 plea was "immigration safe," and because he demonstrated that he did not meaningfully understand the immigration consequences of his plea and would not have accepted the plea if he had.
We affirm. We agree with Ochoa that the trial court erred in finding the 2009 plea was immigration safe at the time it was made; at the time he entered it, the 2009 plea subjected Ochoa to removal unless he convinced immigration authorities or a court that he was entitled to discretionary cancellation of removal. But the fact that Ochoa's 2009 plea was not immigration safe when made does not show the trial court ultimately erred in concluding Ochoa was not entitled to relief under section 1473.7. It instead buttresses why Ochoa was not entitled to relief, as the fact his 2009 plea was not immigration safe was one of the reasons that Ochoa was specifically advised in open court before entering his plea that his plea had significant immigration consequences including deportation and exclusion from the United States. Putting aside Ochoa's self-serving and contradictory testimony, the contemporaneous record shows Ochoa understood that his 2009 plea subjected him to removal, and he decided nevertheless to enter it in exchange for the other benefits the negotiated plea afforded him.
BACKGROUND
A. The Charges, Plea, and Sentence
An information charged Ochoa and a codefendant with selling, transporting, or offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 1) and possession for sale of a controlled substance (id., § 11351; count 2). The information identified the controlled substance as heroin and further alleged, as an enhancement under Health and Safety code section 11370.4, subdivision (a)(1), that its weight exceeded 1487.8 grams. Ochoa faced a possible sentence of eight years in state prison.
Despite his plea of no contest, Ochoa now claims that he was innocent and did not know anything about the sale of heroin. Rather, a confidential informant "heavily pressured [Ochoa] against his will to participate" in the sale and "used [Ochoa] to get to the other" defendant.
On November 13, 2008, Ochoa was provided with a felony advisement of rights, waiver, and plea form, commonly referred to as a Tahl waiver. (In re Tahl (1969) 1 Cal.3d 122.) The first paragraph of the form provided, "Fill out this form if you wish to plead guilty or no contest to the charges against you. Initial the box for each applicable item only if you understand and agree with it, and sign and date the form .... If you have any questions about anything on this form or about your case, ask your attorney or the judge."
Among other things, the Tahl waiver advised Ochoa as to several constitutional rights, including that he would be presumed innocent unless 12 impartial jurors chosen from the community were convinced of his guilt beyond a reasonable doubt, that he was waiving those rights, and the consequences of his plea. Item 12 on the form provided, "I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty." Item 14 stated, "Prior to entering this plea, I have had a full opportunity to discuss with my attorney the facts of my case, the elements of the charged offense(s) and enhancement(s), any defenses that I may have, my constitutional rights and waiver of those rights, and the consequences of my plea."
Ochoa initialed the box next to each applicable item, including items 12 and 14. He also signed the form beneath a statement that, "I have read and initialed each of the paragraphs above and discussed them with my attorney. My initials mean that I have read, understand and agree with what is stated in the paragraph. The nature of the charges and possible defenses to them, and the effect of any special allegations and enhancements have been explained to me. I understand each and every one of the rights outlined above and l hereby waive and give up each of them in order to enter my plea to the above charges." Ochoa's counsel, Roland G. Rubalcava, signed the form, attesting that he reviewed the form with Ochoa and explained, among other things, his client's rights, possible defenses to the charges, and consequences of the plea. A Spanish interpreter also signed the form, indicating that he or she translated the form to Ochoa and that Ochoa "stated that he . . . understood the contents of the form."
A Spanish interpreter was present to assist Ochoa at his November 13, 2008 arraignment. The court acknowledged Ochoa had reached a plea agreement under which he would serve a two-year state prison term in exchange for pleading guilty to count 2. The court explained, "Even though you went over the plea form with your attorney and the interpreter, . . . the [prosecutor] in your case . . . [is] going to go through your rights again, [to] make sure you understand them and the deal. If he asks you any questions, answer through the interpreter. Do you understand?" Ochoa responded, "Yes."
Thereafter, the prosecutor explained, "Mr. Ochoa, I'm holding up a [Tahl waiver] filled out under [Ochoa's case number]. Did you read over this form with your attorney, discuss the nature of the charges against you, the consequences of your plea, and your constitutional rights . . . ?" Ochoa answered, "Yes," and confirmed that he had initialed and signed the document. Ochoa further confirmed his attorney had explained to him his rights to a jury trial, confrontation, cross-examination, self-incrimination, and the subpoena power of the court, that he understood those rights, and waived each of them. The prosecutor also provided several advisements, including that, "If you're not a[ ] citizen of the United States, by pleading guilty, you will be deported. You will be denied naturalization, and you will be excluded from admission to the United States. Do you understand the consequences of your plea?" Ochoa responded, "Yes," and confirmed that he entered his plea freely and voluntarily. The prosecutor then asked, "Mr. Ochoa, to count 2 of the information, a violation of section 11351 of the Health and Safety Code, possession for sale of heroin, how do you plead?" Ochoa responded, "Guilty." Ochoa did not admit the enhancement allegation as to the weight of the heroin.
Ochoa appeared for his sentencing hearing on February 18, 2009 with new counsel, Laura Stone. Ochoa moved to withdraw his prior plea. The court granted the motion without objection.
Ochoa then confirmed for the court that he wanted to accept a new plea deal, this time to count 1 instead of to count 2, and with more favorable terms that essentially cut in half the time Ochoa would spend in custody for his offense. The prosecutor went through the same process of verifying that Ochoa knowingly entered his plea, as he had done at the November 13, 2008 hearing. The prosecutor held up Ochoa's February 18, 2009 signed Tahl waiver, which was the same form as the November 13, 2008 form, and provided the same advisements, including item 12 relating to immigration consequences and item 14 confirming he had a full opportunity to discuss the facts of the case with his attorney. Stone and a Spanish interpreter had also signed the February 18, 2009 Tahl waiver. In court, the prosecutor asked whether Ochoa's attorney had explained his rights to a jury trial, confrontation, cross-examination, selfincrimination, and the subpoena power of the court, and Ochoa confirmed his attorney had explained those rights, that Ochoa understood them, and that he waived them. The prosecutor also explained, "If you're not a[ ] citizen of the United States, by pleading guilty, you will be deported. You will be denied naturalization, and you will be excluded from admission to the United States." Ochoa, assisted by an interpreter, responded in the affirmative when asked if he understood the consequences of his plea. The prosecutor explained that Ochoa would be sentenced to five years in state prison, suspended, and placed on probation for a period of three years upon the condition that he serve 364 days in county jail. He further explained that if Ochoa violated his probation, he would serve the suspended sentence.
The prosecutor asked, "Mr. Ochoa, to count 1 of the information, a violation of section 11352[, subdivision ](a) of the Health and Safety Code, the transportation of heroin, how do you plead?" Ochoa responded, "No contest." The prosecutor confirmed, "Do you understand that a no[ ]contest plea will be treated the same as a guilty plea?" Ochoa responded, "Yes." The court convicted Ochoa of violating Health and Safety Code section 11352, subdivision (a).
Nearly a year later, on January 25, 2010, the court sentenced Ochoa per the plea agreement to five years in state prison, suspended that term, and placed him on probation for three years on the condition that he serve 720 days in Los Angeles County jail, less credit for 720 days. On July 18, 2012, the court found Ochoa complied with all terms and conditions of his probation and dismissed the case pursuant to section 1203.4.
The court explained the condition as "spend[ing] the first 720 days in the county jail. Your credits are 360 actual plus 360 good-time/work-time for a total of 720 days."
B. Proceedings on Ochoa's Motion to Vacate His Conviction
In November 2019, Ochoa consulted with immigration counsel, Jose R. Jordan. Jordan told Ochoa that Ochoa's conviction rendered him subject to removal. Accordingly, Ochoa sought relief from this immigration consequence.
1. Ochoa's Motion
On June 13, 2022, Ochoa filed a motion to vacate his plea pursuant to section 1473.7. He supplemented his motion on November 9 and December 9, 2022. Ochoa argued he did not understand the immigration consequences of his plea nor could he make a meaningful decision whether to accept the plea because he was unfamiliar with the American legal system, did not independently know his constitutional rights, no one explained his rights or the immigration consequences of his plea to him, and the court failed to give him required advisements about the immigration consequences of his plea. Ochoa claimed his former defense counsel Stone rendered ineffective assistance in not advising him of such consequences. He further argued these errors prejudiced him because he would not have accepted the plea offer had he known of his constitutional rights or the immigration consequences of his plea. Rather, he would have elected to go to trial or asked to negotiate a plea that would not have made him removable from the United States.
Ochoa's motion also sought relief under section 1016.5, subdivision (a), which requires the trial court to give a specific admonition before accepting a plea of guilty or nolo contendere to any offense other than an infraction. On appeal, Ochoa has abandoned any argument of error pursuant to section 1016.5.
In support of his motion, Ochoa filed his declaration, Jordan's declaration, certain court records, including both Tahl waivers, letters attesting to Ochoa's good moral character, photographs, and emails from both of Ochoa's former criminal counsel.
2. Ochoa's Declaration
At the time Ochoa filed the declaration accompanying his motion, he was unable to obtain transcripts of the November 13, 2008 and February 18, 2009 hearings. Thus, as Ochoa acknowledges on appeal, he "prepared his declaration to the best of his recollection" and without being able to refresh his memory with the transcripts.
Ochoa declared he was 54 years old and a native and citizen of Mexico. He arrived in the United States in 1986, when he was 18 years old, and became a lawful permanent resident (LPR) in 1990. He had a limited education. He owns and operates a butcher shop, has three children who are United States citizens who depend on him for emotional and economic support, and both of his parents are United States citizens.
In 2022, the youngest of these children was 25 years old.
Ochoa asserted he signed the November 13, 2008 Tahl waiver without anyone explaining what he had signed. Ochoa fired Rubalcava because Rubalcava "only wanted to concede" the charges against Ochoa. Ochoa met with another attorney, whose name he did not recall, who advised him to withdraw his original plea because it made Ochoa "immediately subject to removal." That attorney put him in touch with Stone.
In January 2009, Stone told Ochoa "that she would attempt to remove one of the two counts so as not to make [him] immediately subject to removal." Ochoa claims Stone did not prepare him for the plea hearing and that they only spoke in English even though his English was very limited. On February 18, 2009, Stone and Ochoa met outside the courtroom about a plea deal without an interpreter. He did not understand what "nolo contendere" meant. Stone told him to initial and sign forms "to resolve the case." The interpreter read the forms to Ochoa but never explained the contents or that the statements in the form applied to him. Ochoa felt as though he "was making a rushed, hurried decision because everything happened so fast, [he] just agreed to what Ms. Stone said." "No one, including the interpreter, explained to [him] about the immigration consequences of what [he] was signing or what [he] agreed to in court." He did not understand that his conviction would subject him to removal from the United States and prevent him from becoming a citizen. If he had known that, he would have elected to go to trial.
3. Criminal Defense Counsel's Emails
Ochoa's former defense counsel provided statements by email. Rubalcava stated he had no recollection of Ochoa. Stone recalled only that the "case was many years ago," that she was not the first attorney on the case, and that she "was hired to try and get him a better deal, which I think I was successful in that." Neither email indicated whether counsel had been asked for or had documents relating to their representation of Ochoa.
4. The People's Opposition
The People argued Ochoa failed to prove ineffective assistance of counsel or that the court failed to advise him of the consequences of his plea. They further argued that at the time Ochoa entered his plea in 2009, a conviction for violating Health and Safety Code section 11352, subdivision (a) was "immigration safe," but that later amendments have changed that. Finally, the People argued that Ochoa did not suffer prejudice and that his affidavit was self-serving and contained inadmissible hearsay.
5. The Hearing and Ruling on Ochoa's Motion to Vacate
Ochoa, assisted by a Spanish interpreter, was the only witness to testify at the May 15, 2023 evidentiary hearing on his motion to vacate. He testified he had had two attorneys represent him as to his drug-related charges because Rubalcava "didn't do a good job." After his first plea, Ochoa met with an immigration attorney "to renew [his] residency." The immigration attorney told Ochoa he had a deportable offense and recommended that Ochoa work with Stone to change those charges. Stone spoke to Ochoa through his friend who acted as an interpreter. Ochoa understood everything his friend said, but his friend did "not really" translate anything about immigration consequences.
As noted above, in his declaration Ochoa claimed he and Stone communicated in English without an interpreter.
Ochoa testified that he hired Stone so that she would "eliminate the [deportable] charge." He believed she did so. Stone informed him that he "was not going to have problems with immigration" and never discussed any adverse immigration consequences of his plea with him. Stone did not explain potential defenses, what a jury trial was, or that he could plead not guilty. He thought he had to plead guilty because no one told him he could take the case to trial. Stone convinced Ochoa to plead no contest by telling him he was not going to have immigration problems. Ochoa would have taken the risk of going to trial, even if it meant that he had to serve more jail time, to avoid deportation.
As noted above, Ochoa's declaration did not include any statement that Stone told him he did not have to worry about the immigration consequences of his plea.
On cross-examination, Ochoa testified that he did not remember if, after he entered his plea on November 13, 2008, he was advised of the immigration consequences against him. When asked whether a Spanish interpreter assisted him in court on November 13, 2008, Ochoa responded, "I believe so. I think yes, but I honestly don't remember." He acknowledged that on February 18, 2009, a Spanish interpreter assisted him and they went over a form explaining his constitutional rights and consequences of his plea, but added that "at that time my charge was not deportable." He believed the interpreter read to him the portion about the immigration consequences of his plea, but again noted that he did not remember. He also acknowledged that the court advised him of the immigration consequences of his plea. The People asked, "Is it fair to say that you were trying to achieve the lowest custody sentence in order to get back and care for your family?" Ochoa responded, "Yes. Also so as not to be in jail." However, on redirect examination, he clarified it was more important that he did not get deported because his "entire life is in this country." He testified that if Stone told him one thing and his forms stated another, he would have believed Stone.
During the hearing, the court observed, "[Ochoa] pretty much said that he had many different consultations with various lawyers and clearly knew there were immigration consequences." The court also explained, "So the court's understanding is that in 2009 this was considered an immigration safe charge; and therefore, it leads the court to believe that [Stone] did know the law." The court stated that Stone "would have known in 2009 that this was an immigration safe charge. The law changed in 2015 [sic] which she could not have known and seen into the future." Ochoa's counsel stated "[i]t was in litigation," but conceded, "[c]orrect, she could not have known the result."
During summation, Ochoa argued that neither of his former attorneys fulfilled their duty to properly advise him. The People argued Ochoa was not credible, noting he was advised at least four times about immigration consequences and nevertheless went through with his plea under which he negotiated a more favorable disposition and "worked out what at the time was an immigration[-]friendly disposition."
The trial court denied Ochoa's motion. Ochoa timely appealed.
DISCUSSION
A. General Legal Principles Relating to Section 1473.7 In 2016, the Legislature passed section 1473.7, effective
January 1, 2017 (Stats. 2016, ch. 739, § 1) to ensure noncitizen defendants "receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient." (People v. Vivar (2021) 11 Cal.5th 510, 516.)
Under subdivision (a)(1) of section 1473.7, a person no longer in custody can seek to vacate a prior conviction 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." (Ibid.) In 2018, the Legislature amended section 1473.7, effective January 1, 2019, to clarify that "[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1); Stats. 2018, ch. 825, § 2.) The amendments also provided, "When ruling on a motion under paragraph (1) of subdivision (a), the 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., former subd. (e)(4).)
Section 1473.7, including its 2018 amendments, applies retroactively to convictions entered before its effective date. (See People v. Rodriguez (2021) 68 Cal.App.5th 301, 309, 311; People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066.)
As explained in People v. Camacho (2019) 32 Cal.App.5th 998, "even if [a section 1473.7] motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that 'counsel's representation "fell below an objective standard of reasonableness"' ' "under prevailing professional norms,"' as stated in Padilla[ v. Kentucky (2010)] 559 U.S. [356,] 366, 368369, quoting Strickland[ v. Washington (1984)] 466 U.S. [668,] 688, 694." (Id. at p. 1008.) Instead, "the focus of the inquiry in a section 1473.7 motion is on the 'defendant's own error ....' [Citation.]" (People v. Mejia (2019) 36 Cal.App.5th 859, 871, italics omitted; see also People v. Curiel (2023) 92 Cal.App.5th 1160, 1176 ["in deciding whether the defendant has shown error, the focus of our inquiry is on the defendant's own error in misunderstanding the immigration consequences of the plea"].) "[A] petitioner's own subjective error qualifies for relief under the statute if the evidence shows he or she misunderstood the immigration consequences of a plea deal." (People v. Alatorre (2021) 70 Cal.App.5th 747, 769.)
B. Burden of Proof and Standard of Review
"[S]ection 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is 'legally invalid due to prejudicial error damaging [their] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.' [Citations.]" (People v. Espinoza (2023) 14 Cal.5th 311, 316.) Thus, "[t]o prevail on a motion under section 1473.7, a defendant must satisfy two elements. 'The defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error.'" (People v. Curiel, supra, 92 Cal.App.5th at p. 1172, citing People v. Espinoza, supra, at p. 319.)
"A defendant seeking to set aside a plea must do more than simply claim he did not understand the immigration consequences of the plea. The claim must be corroborated by evidence beyond the defendant's self-serving statements." (People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664; see also People v. Vivar, supra, 11 Cal.5th at p. 530 ["[W]e have long required the defendant [to] corroborate such assertions with' "objective evidence"' "]; People v. Mejia, supra, 36 Cal.App.5th at p. 872 ["In a postconviction setting, courts should not simply accept a defendant's statement of regret regarding the plea, courts should also 'look to contemporaneous evidence to substantiate a defendant's expressed preferences' "].) "Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." (People v. Espinoza, supra, 14 Cal.5th at p. 321.)
On appeal, section 1473.7 motions are subject to independent review. (People v. Vivar, supra, 11 Cal.5th at pp. 524-528.)" '[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.' [Citation.]" (Id. at p. 527.) Independent review is not the equivalent of de novo review. (Ibid.) "An appellate court may not simply second-guess factual findings that are based on the trial court's own observations" (ibid.), and must "accord deference to the credibility findings made by the court based on the testimony given at [an evidentiary] hearing [on the motion to vacate]" (People v. Curiel, supra, 92 Cal.App.5th at p. 1174). "Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (People v. Vivar, supra, at p. 528.)
C. Ochoa Has Not Demonstrated Error Affecting His Ability to Meaningfully Understand the Immigration Consequences of His Plea
1. Relevant Immigration Law Principles
An LPR is removable from the United States if the LPR commits, as is relevant here, an aggravated felony within the meaning of title 8 United States Code section 1227(a)(2)(A)(iii) or a controlled substance offense within the meaning of title 8 United States Code section 1227(a)(2)(B)(i). An aggravated felony includes "illicit trafficking in a controlled substance (as defined in ) including a drug trafficking crime" (8 U.S.C. § 1101(a)(43)(B)); such a conviction renders an LPR removable and bars the LPR from receiving discretionary relief, such as cancellation of removal under title 8 United States Code section 1229b(a). (See Taniguchi v. Schultz (9th Cir. 2002) 303 F.3d 950, 954, 956, 958; 8 U.S.C. § 1229b(a)(3) ["The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien [¶] . . . [¶] . . . has not been convicted of any aggravated felony"].) A controlled substance offense also renders an LPR removable but does not bar the seeking of discretionary relief. (See 8 U.S.C. § 1229b.)
Whether a state law violation qualifies as an aggravated felony or is instead a controlled substance offense within the meaning of title 8 United States Code section 1227 has been the subject of much litigation. By the time of Ochoa's 2009 plea, courts had long applied a "modified categorical approach" because the conduct that could give rise to convictions under Health and Safety Code sections 11351 (possession or purchase for sale of state-designated controlled substance) and 11352 (transportation or sale of state-designated controlled substances) were not coextensive with the federal definition of an aggravated felony. (See U.S. v. Kovac (9th Cir. 2004) 367 F.3d 1116, 1119; U.S. v. Rivera-Sanchez (9th Cir. 2001) 247 F.3d 905, 909 (en banc); U.S. v. Diego-Barrera (9th Cir., May 22, 2008, No. 05-50541) 2008 WL 2278897 at p. *2.) Under the modified categorical approach, courts could examine "a narrow, specified set of documents that are part of the record of conviction, including 'the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings'" (Tokatly v. Ashcroft (9th Cir. 2004) 371 F.3d 613, 620) to determine whether a defendant's plea clearly and unequivocally established that the defendant was convicted of all the elements of the relevant federal qualifying offense (see U.S. v. Kovac, supa, at p. 1119; U.S. v. Rivera-Sanchez, supra, at p. 908).
Differences also exist between the type of substances controlled by federal versus state law. But the substance at issue here, heroin, is not one as to which any such difference exists. (See Mielewczyk v. Holder (9th Cir. 2009) 575 F.3d 992, 996.)
Ochoa's initial 2008 plea was to an aggravated felony that made him removable and ineligible for discretionary relief because the plea colloquy identified he was pleading guilty to possession of heroin for sale. (See Rendon v. Mukasey (9th Cir. 2008) 520 F.3d 967, 976, fn. omitted ["possession of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony"].) At the time it was entered, Ochoa's 2009 plea to transportation of heroin was a controlled substance offense that made him removable, but it was not an aggravated felony. (U.S. v. Martinez-Lopez (9th Cir. 2017) 864 F.3d 1034, 1038, fn. 3 [explaining a 1998 conviction under Health & Saf. Code, § 11352 could have been for personal use and, thus, was not a federal drug trafficking offense]; United States v. Rosas-Ramirez (N.D. Cal., June 26, 2019, No. 18-CR-00053-LHK) 2019 WL 2617096 at p. *8 ["the government has not clearly and unambiguously demonstrated that [the d]efendant was convicted [in 1996] of an aggravated felony because [the d]efendant could have been convicted of transporting heroin for personal use, which the Ninth Circuit has held is not a drug trafficking offense"].) He was thus eligible for discretionary cancellation of removal (8 U.S.C. § 1229b(a)) and naturalization (8 U.S.C. § 1427(a); 8 C.F.R. § 316.10).
As described below, although Ochoa's 2009 plea could have been an aggravated felony if judicially noticeable documents clearly and unequivocally demonstrated he transported heroin for sale (as opposed to say for personal use), Ochoa does not argue this was the case and provides no analysis to demonstrate the plea would be construed as transportation for sale. Indeed, at oral argument, Ochoa conceded his 2009 plea was not an aggravated felony at the time he entered that plea.
In 2013, the Legislature amended Health and Safety Code section 11352, effective January 1, 2014, to define "transport" to mean "transport for sale." (Stats. 2013, ch. 504, § 1.) This amendment ended a defendant's ability to have his or her Health and Safety Code section 11352, subdivision (a) conviction treated as transport for merely "personal use," meaning such convictions were now for drug trafficking and an aggravated felony. (See U.S. v. Rosales-Aguilar (9th Cir. 2016) 818 F.3d 965, 973.)
2. Ochoa's Plea Was Not "Immigration Safe" in 2009
Ochoa summarily asserts the trial court erred in finding his 2009 plea was "immigration safe" for two reasons (1) because it was a controlled substance offense under title 8 United States Code section 1227(a)(2)(B)(i), and (2) because of the "potential" that a conviction under Health and Safety Code section 11352, subdivision (a) might later become an aggravated felony under title 8 United States Code section 1227(a)(2)(A)(iii).
We agree with Ochoa that his 2009 conviction was a controlled substance offense that subjected him to deportation, and thus not "immigration safe" as it had potential immigration consequences. The plea transcript, which is a judicially noticeable document (see Tokatly v. Ashcroft, supra, 371 F.3d at p. 620), indicated that Ochoa pleaded no contest to "transportation of heroin," a federally controlled substance (Mielewczyk v. Holder, supra, 575 F.3d at p. 996). Thus, his conviction qualified as a controlled substance offense under title 8 United States Code section 1227(a)(2)(B)(i) rendering him removable. (Mielewczyk v. Holder, at p. 996).
As to his second claim, Ochoa does not assert that his conviction was an aggravated felony in 2009. Rather, he claims the issue was "in litigation" at the time of his plea (without more), thereby suggesting his criminal defense counsel should have advised him that if the law later changed, he could be subject to immediate removal in the future. Ochoa further claims that because section 1473.7 applies retroactively, the court should have found "error" within the meaning of the statute based on a change in law years after his plea was entered even if there was no actual error at the time of Ochoa's plea.
Ochoa fails to demonstrate that potential immigration consequences stemming from an issue in litigation (unidentified by Ochoa) at the time of his plea were sufficiently clear to demonstrate ineffective assistance. "[W]hether a conviction for a particular offense will make an alien removable is often quite complex" and "determining whether a particular crime is an 'aggravated felony' or a 'crime involving moral turpitude . . .' is not an easy task." (Padilla v. Kentucky, supra, 559 U.S. at pp. 377-378 (conc. opn. of Alito, J.).) Notably, with respect to ineffective assistance of counsel, Padilla-decided a year after Ochoa's plea-required that in the "numerous situations in which the deportation consequences of a plea are unclear . . ., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences" (id. at p. 357), not that the attorney must predict the future.
As for the claim that section 1473.7 affords relief when immigration law changes years after the plea at issue, Ochoa has not adequately developed this argument and therefore has forfeited his claim of error. (People v. Johnson & Johnson (2022) 77 Cal.App.5th 295, 324.) To begin, Ochoa provides no argument or citation to authority suggesting that the 2013 amendment to Health and Safety Code section 11352, subdivision (a) that made that offense an aggravated felony would apply retroactively to his 2009 conviction. Even if he had, neither of the two cases Ochoa cites concerning retroactivity (see People v. Mejia (2019) 36 Cal.App.5th 859, 862; People v. Perez (2018) 19 Cal.App.5th 818, 828) stand for the proposition that a subsequent change in the law should be construed as an error under section 1473.7. Nor has Ochoa provided any argument why we should adopt such an interpretation of section 1473.7.
3. The Trial Court Did Not Err in Denying Ochoa's Motion to Vacate His 2009 Conviction
The trial court's error in finding Ochoa's plea was immigration safe matters for purposes of this appeal only if we accept Ochoa's claim that Stone advised him that his plea would not have any immigration consequences. Based upon our independent review of the record, we conclude that Ochoa's assertion lacks credibility. (See People v. Vivar, supra, 11 Cal.5th at p. 528.) As explained above, "A defendant seeking to set aside a plea must do more than simply claim he did not understand the immigration consequences of the plea. The claim must be corroborated by evidence beyond the defendant's selfserving statements." (People v. Abdelsalam, supra, 73 Cal.App.5th at 664.)
The trial court also appeared to find Ochoa's position lacked credibility, noting "[Ochoa] pretty much said that he had many different consultations with various lawyers and clearly knew there were immigration consequences."
Ochoa initially asserted in his declaration that no one explained to him the immigration consequences of his 2009 plea. The contemporaneous evidence supports the opposite conclusion. After entering his first plea in November 2008 to violating Health and Safety Code section 11351, Ochoa consulted with an immigration attorney to renew his residency. In his declaration, Ochoa contends that the attorney advised him that he needed to withdraw his plea because he was "immediately subject to removal." (Italics added.) Ochoa's plea to possession for sale of heroin was indeed an aggravated felony subjecting him to immediate removal. (See Martinez-Memije v. Mukasey (9th Cir. 2008) 292 Fed.Appx. 663, 664). That attorney put Ochoa in touch with Stone, who met with Ochoa in January 2009. Stone understood Ochoa was an LPR and told him that "she would attempt to remove one of the two counts so as not to make [Ochoa] immediately subject to removal." (Italics added.)
The contemporaneous evidence supports this portion of Ochoa's declaration, as Ochoa's 2008 plea did make him removable and ineligible for discretionary relief from removal, and Stone did negotiate a plea that made Ochoa eligible for such relief. Stone negotiated a plea deal that was better than Ochoa's first in two respects: it essentially halved the amount of time he would spend in custody and, because he did not plead to an aggravated felony, it meant he could still apply for discretionary relief from removal and, eventually, naturalization. (See U.S. v. Martinez-Lopez, supra, 864 F.3d at p. 1038, fn. 3; United States v. Rosas-Ramirez, supra, 2019 WL 2617096 at p. *8; 8 U.S.C. § 1229b(a)(3).)
Other contemporaneous evidence-namely the Tahl waivers and the hearing transcript-demonstrate Ochoa's assertion that no one explained to him the immigration consequences of his plea lacks credibility. In the process of resolving his drug trafficking charges, Ochoa was told that his plea "will" result in his deportation, exclusion from admission or reentry to the United States, and denial of naturalization when the interpreter read to him the Tahl waiver on February 18, 2009, and again when the prosecutor explained it to him at the February 18, 2009 plea hearing. In addition, the court taking the plea emphasized that although Ochoa went over the Tahl waiver with his attorney and the Spanish interpreter, it would "go through [his] rights again, [to] make sure [he] underst[oo]d them and the deal," thereby indicating another time that important rights and other information were being explained to him. After the prosecutor described the immigration consequences of his plea, he asked Ochoa whether he understood, and Ochoa responded in the affirmative.
At the evidentiary hearing, Ochoa changed his position when testifying from him getting no explanation of immigration consequences to instead claiming for the first time that Stone told him that the plea would not cause any problems with immigration, and suggesting he relied on her assurance despite his express acknowledgement on the record to the contrary. This claim is not credible, and it appears obvious that Ochoa contradicted himself in a failed attempt to explain away the contemporaneous evidence that he was informed of the immigration consequences of his 2009 plea before he entered it.
Relying on People v. Jung (2020) 59 Cal.App.5th 842, 847, 857-858, disapproved on another ground in People v. Vivar, supra, 11 Cal.5th at page 526, footnote 4, and People v. Mejia, supra, 36 Cal.App.5th at pages 865, 872-873, Ochoa argues a defendant's signature and initials on a Tahl waiver are insufficient to demonstrate a defendant subjectively understood the immigration consequences of his plea "where there is contemporaneous evidence to the contrary." However, the only contemporaneous evidence Ochoa offers in support of his position are the facts that he offers to demonstrate prejudice: that he had lived in the United States for approximately 23 years prior to his plea, at the time of his plea he had three children and parents who were United States citizens and who relied on him for economic and emotional support, and that he owned a butcher shop. The conclusion Ochoa asks us to draw from those facts- that he would not have agreed to a plea that had any immigration consequences and therefore could not have understood that his plea would carry such consequences-does not necessarily follow. That Ochoa had a business and family who relied on him also supports the conclusion that he wanted to ensure he would be eligible for relief from removal, serve minimal time in custody, and preserve the possibility that he could become a naturalized citizen. Indeed, that interpretation is consistent with the statements in his declaration as to why he hired Stone in the first place-to obtain a more favorable result with regard to obtaining relief from removal, a result his 2009 plea achieved.
Further undermining Ochoa's credibility is his entirely unsupported position that he did not know he could take the matter to trial because no one told him of his right to do so. His claim is refuted not only by the fact that not wanting to concede to the charges, Ochoa fired Rubalcava and hired Stone, but also by several advisements given to Ochoa concerning his rights. Ochoa was told at least twice-once when a Spanish interpreter read him the Tahl waiver on November 13, 2008, and again when another interpreter read him the Tahl waiver on February 18, 2009-about his rights at trial, including that he was presumed innocent until found guilty beyond a reasonable doubt by a jury of 12 persons selected from the community, asked during the plea hearings through Spanish interpreters whether his constitutional rights were explained to him, and confirmed he understood and knowingly waived those rights.
Because the only evidence of Ochoa's alleged failure to subjectively understand the immigration consequences of his plea is his own self-serving and contradictory testimony that is refuted by contemporaneous evidence, Ochoa failed to carry his burden to demonstrate he was entitled to relief under section 1473.7.
DISPOSITION
The order denying the motion to vacate Ochoa's conviction is affirmed.
We concur: ROTHSCHILD, P. J., CHANEY, J.