Opinion
D069488
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. DIEGO ORTIZ SANTIBANEZ, Defendant and Appellant.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD256698) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
Diego Ortiz Santibanez entered negotiated guilty pleas to two drug-related offenses. After immigration authorities took him into custody based on the offenses, Santibanez attempted to withdraw his pleas and the court denied his motion.
Santibanez appeals and argues the court erred in denying his request because the pleas were based on an illusory promise, he accepted the plea agreement based on a mistake or ignorance, and his counsel was ineffective for failing to adequately advise him on the immigration consequences of the pleas. We conclude Santibanez's arguments lack merit and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2014, an undercover police officer approached Daphne R. in front of a house and told her he was looking to buy $40 worth of "tweak," a common street term used for methamphetamine. After speaking with Santibanez on the front steps of the house, Daphne informed the officer that Santibanez would bring it out in a few minutes. Shortly thereafter, Santibanez returned from inside the house and gave the officer a cigarette box containing a bindle of crystal methamphetamine in exchange for the $40.
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to victims and witnesses in this case by their first name and last initial, and thereafter by first name only. Our use of first names is not intended as a sign of disrespect.
Santibanez was arrested and charged with one count each of transporting for sale, selling, or furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1); possession for sale of methamphetamine (id., § 11378; count 2); and possession of methamphetamine (id., § 11377, subd. (a); count 3). Attorney John Patterson was appointed to represent Santibanez.
At their first meeting, Patterson inquired as to Santibanez's immigration status and told him a guilty plea to any of the charges asserted against him could result in deportation or a denial of citizenship. Santibanez indicated the possibility of deportation was his primary concern and, thereafter, they discussed the immigration consequences of the case regularly. Patterson informed Santibanez he would be deported if he pled guilty to the charges several times, but also suggested it would be good for Santibanez to consult an immigration attorney.
With this understanding, Patterson negotiated an agreement under which Santibanez would plead guilty to counts 1 and 3 in exchange for a dismissal of count 2, and an agreement from the district attorney not to oppose a withdrawal of Santibanez's plea and a dismissal of count 1 if Santibanez successfully completed 18 months of probation. Patterson told Santibanez the guilty pleas were still going to be a problem from an immigration standpoint, but it was the best he could do, the law could change over time, and perhaps the potential dismissal of count 1, leaving only a misdemeanor possession charge, would help Santibanez in front of an immigration judge. Patterson also pointed out language on the plea agreement form explicitly stating a plea of guilty to an aggravated felony would result in deportation and the denial of citizenship, and the transportation or sale of a controlled substance was an aggravated felony.
Santibanez agreed to the pleas, initialed the paragraph stating he understood he would be deported and denied citizenship as a result, and signed the form. Before accepting the guilty pleas, the court asked Santibanez if he understood the pleas would result in deportation and Santibanez indicated he did. After entering the guilty pleas but before the sentencing hearing, immigration officers placed Santibanez into federal custody. At the sentencing hearing, the court sentenced Santibanez to three years' probation and gave him credit for time served.
At this time, Santibanez had been released from custody pending trial.
After sentencing, Santibanez informed Patterson he wanted to withdraw his pleas and believed Patterson had a conflict of interest. The court held a Marsden hearing and appointed new counsel for Santibanez, who then filed a motion to withdraw the pleas. Based on testimony from Patterson regarding his discussions with Santibanez leading up to the plea agreement, the court found Santibanez had not presented clear and convincing evidence Patterson's advice regarding the immigration consequences of the guilty pleas had been inadequate, and denied the motion.
People v. Marsden (1970) 2 Cal.3d 118.
DISCUSSION
I
Santibanez argues the plea agreement was void because it was based on an illusory and unauthorized promise to allow him to withdraw his guilty plea to count 1 after successfully completing 18 months of probation. He contends Penal Code section 1018 only permits the court to entertain a motion to withdraw a guilty plea brought within six months of an order granting probation, and would not permit such a motion 18 months later. However, Santibanez's reliance on section 1018 is misplaced. While the statute permits the court to accept a defendant's withdrawal of a guilty plea for good cause shown if the defendant requests to do so within six months of an order granting probation, it does not preclude the court from later accepting a withdrawal of a guilty plea on other grounds. (See ibid.) Here, alternative authority would have permitted the court to accept a withdrawal of the guilty plea and dismiss the charge after Santibanez completed 18 months of probation without incident, as contemplated by the plea agreement. (See, e.g., People v. Guillen (2013) 218 Cal.App.4th 975, 982-983, 1003-1004 [affirming the acceptance of a withdrawal of guilty plea and dismissal of charge based on termination of probation after 20 months pursuant to § 1203.4].) Thus, the plea agreement was not based on an unauthorized or illusory promise.
All further statutory references are to the Penal Code unless otherwise indicated.
We have read and considered the supplemental briefing of the parties concerning the ability of the court to dismiss count 1 pursuant to section 1203.4, and are not persuaded by Santibanez's arguments therein. The parties entered into the agreement without knowing the court would impose a term of probation greater than 18 months and, although it is possible section 1203.4 would require dismissal of count 3 as well under the circumstances, it nevertheless permits the court to grant an unopposed motion to dismiss count 1 as contemplated.
The People argue, in the alternative, section 17, subdivision (b) would allow the court to carry out the agreement by changing count 1 from a felony to a misdemeanor following 18 months of successful probation. However, the plea agreement clearly indicates the district attorney agreed not to oppose the dismissal of count 1 and thus section 17, subdivision (b) is not applicable.
II
Santibanez also argues the court should have permitted him to withdraw his pleas pursuant to section 1018 because his acceptance of the agreement was the result of a mistake or ignorance.
A defendant may bring a motion to withdraw a guilty plea for good cause pursuant to section 1018 if the defendant entered the agreement because of a mistake or ignorance overcoming the defendant's free exercise of judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) To prevail, the defendant must present clear and convincing evidence establishing the alleged mistake or ignorance. (Ibid.) We review the trial court's decision to grant or deny such a motion for an abuse of discretion. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.)
Here, the record supports the trial court's conclusion Santibanez did not enter the pleas based on a mistake or ignorance of the immigration consequences. Patterson told Santibanez he would be deported as a result of the guilty plea on more than one occasion and also specifically pointed out the language on the plea agreement form indicating the same. Santibanez initialed next to the language stating he understood he would be deported and signed the form. Before accepting the plea, the judge specifically asked Santibanez if he understood he would be deported as a result and Santibanez said, "Yes." Thus, Santibanez was well aware his guilty pleas provided a basis for his deportation.
Nonetheless, Santibanez argues he entered the guilty pleas under a mistaken understanding of their immigration consequences because Patterson told him the agreement could potentially help him in front of an immigration judge. However, the evidence shows Patterson told Santibanez the guilty pleas were still going to be a problem from an immigration standpoint and explained the plea agreement was the best achievable result under the circumstances. In this context, Patterson also told Santibanez he should consult an immigration attorney, it was at least possible the law could change, and the dismissal of count 1, leaving only a misdemeanor possession charge, could give the immigration attorney something to work with. At the same time, Patterson clearly explained the plea agreement was no guarantee he would not get deported.
Contrary to Santibanez's contentions, Patterson's statements support rather than contravene the superior court's finding that Santibanez did not mistakenly believe the plea agreement would allow him to evade deportation, particularly when considered along with the language on the plea agreement form and Santibanez's confirmation he understood the guilty pleas would result in deportation at the hearing. (See, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519, 523 [withdrawal of plea not permitted where court confirmed defendant understood language on plea agreement form regarding deportation].)
III
Finally, Santibanez argues he received ineffective assistance of counsel because Patterson did not adequately investigate and inform him of the immigration consequences of his plea. We disagree.
The constitutional right to effective assistance of counsel includes the right to receive competent legal advice before deciding whether to plead guilty to a charged offense. (Padilla v. Kentucky (2010) 559 U.S. 356, 364 (Padilla); Strickland v. Washington (1984) 466 U.S. 668, 686.) To prove ineffective assistance of counsel, Santibanez must prove Patterson failed to act as a reasonably competent attorney would under prevailing professional norms and he was prejudiced as a result. (Padilla, at p. 366; Strickland, at p. 688.) In this context, Santibanez must show Patterson did not provide clear advice regarding the immigration consequences of pleading guilty to a deportable offense (see Padilla, at p. 369; Strickland, at p. 689; § 1016.2), and it would have been rational for Santibanez to reject the plea if he had received reasonably competent advice. (Padilla, at p. 372.)
Here, Patterson provided the necessary immigration advice when he told Santibanez, repeatedly and unequivocally, a guilty plea would result in deportation. Santibanez argues Patterson did not adequately investigate or advise him because Patterson told him to consult an immigration attorney and suggested the terms of the plea agreement might give him something to work with in immigration court but, taken in context, these statements do not negate the clear and accurate advice Patterson repeatedly gave Santibanez regarding deportation, and thus do not fall below professional norms.
Santibanez also compares his case to Padilla, where the court found trial counsel was ineffective when he told his client he did not need to worry about deportation despite pleading guilty to a deportable offense (Padilla, supra, 559 U.S. at p. 359), but Patterson never told Santibanez he did not need to worry. Instead, he continually emphasized Santibanez would almost certainly be deported if he pleaded guilty.
Finally, Santibanez argues Patterson did not adequately research and understand the immigration consequences of the guilty pleas. However, Patterson testified he knew count 1 was an aggravated felony and, based on that knowledge, repeatedly told Santibanez a conviction or guilty plea would result in deportation. Patterson's advice was consistent with that of a reasonably competent attorney acting under prevailing professional norms.
Further, even if the advice fell below the applicable standard, Santibanez has not established he was prejudiced as a result. Although he claims he would not have agreed to the plea agreement absent Patterson's allegedly faulty advice, his self-serving statements, alone, are insufficient to establish prejudice. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1421.) Further, Patterson's testimony indicated he got the best deal he could have for Santibanez and there is no indication the district attorney was willing to negotiate anything better or that Santibanez would have fared better if he had gone to trial. In fact, the testimony at the preliminary hearing indicates a conviction and, thus, deportation would have been likely. Santibanez does not argue otherwise or present any evidence indicating it would have been rational for him to reject the plea agreement. Thus, we conclude Santibanez has not proven he was prejudiced by ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.