Opinion
B161842.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE THOMAS SOSA, Defendant and Appellant.
Ed Tolmas, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Thomas Sosa appeals from an order denying his motion to vacate his 1987 conviction of possession of cocaine for sale. He contends the motion should have been granted on the grounds of ineffective assistance of counsel. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged with possession of cocaine for sale in violation of Health and Safety Code section 11351. On December 22, 1987, defendant pleaded guilty pursuant to a plea agreement. On January 26, 1988, the trial court imposed a probationary sentence with a condition defendant spend 180 days in county jail.
More than 14 years later, on June 11, 2002, defendant filed a motion to vacate the judgment of conviction, on the ground counsel had been ineffective in failing to advise him of the immigration consequences of his plea and failing to file pretrial motions. In support of the motion, he submitted a transcript of the December 22, 1987 guilty plea hearing, and declarations of defendant, Bruce Margolin, his attorney in 1987, and Ed Tolmas, the attorney representing him on the motion to vacate the judgment.
Apparently, defendant was currently facing deportation proceedings. Defendant presented no evidence concerning his immigration status or the reason for any deportation proceedings. On appeal, he argues possession of cocaine for sale with a term of imprisonment exceeding one year is a deportable offense. However, defendant was sentenced to only six months.
The transcript of the guilty plea hearing indicated that the trial court had advised defendant: "If youre not an American citizen, pleading guilty to this charge could prevent you from becoming a citizen. It could get you deported. If youre here lawfully, but not as a citizen, that right could be taken from you. You could be denied the right to re-enter the country lawfully in the future. Do you understand the warning?" Defendant replied he understood.
Defendant declared as follows. Both Attorney Margolin and the trial court had advised him that, as a result of his guilty plea and conviction, he could be deported, denied naturalization, and excluded from reentry to the United States. Had he been fully advised of the immigration consequences of his plea, he would not have pleaded guilty.
Attorney Margolin declared as follows. He had no independent recollection of the advice he gave to defendant. However, it was his practice to admonish his clients that, "if [the client] is not a citizen of the United States[,] his conviction could result in his deportation, denial of naturalization, and exclusion from admission to the United States should he leave and attempt to reenter." He doubted he gave any further advice concerning the immigration consequences of defendants guilty plea.
Attorney Tolmas declared as follows. The police had seized narcotics at defendants residence during a search pursuant to a search warrant. The warrant had been obtained on the basis of an informants information. Attorney Margolin had filed no pretrial motions. Attorney Margolin had no independent recollection of the case and no longer had a case file.
On August 15, 2002, the motion to vacate the judgment was denied. The trial court stated: "I find that the advisement by the [trial] court under Penal Code section 1016.5 was sufficient. Thats shown by the language at the plea transcript on page 3, which does meet the requirements of the Penal Code. [P] The second ground is that there was inadequate assistance of counsel. Thats governed by In re [Resendiz] [(2001)] 25 Cal.4th 230. [P] . . . The attorney gave the same advice as the [trial] court regarding the possible immigration consequences. . . . [P] Under [Resendiz], the defendant must show that counsels conduct falls below the prevailing reasonable standard of attorney practice at the time. And thats not been demonstrated here. [P] Its a far different case from [Resendiz], where the attorney made affirmative misrepresentations that were contrary to the advisements. [P] Also, under [Resendiz], the defendant must show prejudice; that is, that he would not have accepted the plea and would have gone to trial if he knew the attorneys advice had been sufficient. [P] I do [know] from a review of the preliminary hearing transcript here that the People presented evidence that there was a search warrant of the defendants home. A large quantity of narcotics was found along with scales and other indicia of sales activity, and that the defendant admitted all of that was his. [P] And then, finally, there has been a substantial delay in the case. The plea was made in December 1987. The defendants probation expired in early 1991, and that delay is not explained, at least to my satisfaction. [P] So for all those reasons, the motion [is] denied." This timely appeal followed.
Penal Code section 1016.5, subdivision (a) provides, in pertinent part: Prior to accepting a plea of guilty or nolo contendere, "the court shall administer the following advisement on the record to the defendant: [P] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Penal Code section 1016.5, subdivision (b) provides, in pertinent part: "If . . . the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendants motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement."
DISCUSSION
Ineffective Assistance of Counsel
Defendant contends his motion to vacate the judgment should have been granted, because counsel had failed to investigate and fully explain the immigration consequences of a guilty plea and file pretrial motions. We disagree with the contention.
"`Where ineffective assistance of counsel results in the defendants decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (In re Resendiz, supra, 25 Cal.4th at p. 239.) "To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant." (Ibid.) "Ordinarily, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsels conduct. [Citations.]" (Id. at p. 240.) "On appeal, "if the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention [that counsel provided ineffective assistance] must be rejected." [Citation.]" (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)
In any event, an appellate court should not attempt to second guess trial counsels tactical decisions. (People v. Williams (1997) 16 Cal.4th 153, 217, 940 P.2d 710; People v. Humphries (1986) 185 Cal. App. 3d 1315, 1343, 230 Cal. Rptr. 536.) Such claims of ineffective assistance of counsel in connection with trial counsels tactical decisions should not be addressed on a silent appellate record. (People v. Bess (1984) 153 Cal. App. 3d 1053, 1059, 200 Cal. Rptr. 773.)
We undertake "an independent review of the record . . . to determine whether [defendant] has established by a preponderance of substantial, credible evidence . . . that his counsels performance was deficient and, if so, that [he] suffered prejudice. [Citation.]" (People v. Resendiz , supra, 25 Cal.4th at p. 249.)
1. Advice Concerning Immigration Consequences
To the extent defendant contends the trial court failed to adequately advise him of the immigration consequences of his guilty plea, the contention is without merit. (Pen. Code, § 1016.5.)
"Whether or not the court faithfully delivers [Penal Code] section 1016.5s mandated advisements, the defendant can be expected to rely on counsels independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.]" (In re Resendiz, supra, 25 Cal.4th at p. 240.) Thus, a trial courts provision of the Penal Code section 1016.5, subdivision (a) advisement does not shield guilty pleas from collateral attack based on immigration-based ineffective assistance claims. (Id. at pp. 240-242.) "Affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel." (Id. at p. 240.)
Defendant acknowledged that counsel had advised him he could be deported, denied naturalization, and excluded from reentry to the United States as a consequence of his plea. Defendant did not produce any evidence that, at the time of the plea, this advice was incorrect or incomplete. Accordingly, defendant failed to show that counsels performance was deficient.
Even if counsels performance was ineffective, defendant failed to show prejudice. "[A] defendant who pled guilty demonstrates prejudice caused by counsels incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsels incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial." (People v. Resendiz, supra, 25 Cal.4th at p. 253.) A defendants assertion he would not have pled guilty if counsel had given him competent advice "must be corroborated independently by objective evidence. [Citations.]" (Ibid.)
Defendant presented no evidence corroborating his assertion he would not have pleaded guilty had counsel provided competent immigration advice. He did not assert he had defenses to the charge. He did not assert he might have avoided conviction had he gone to trial. He did not assert the prosecutor was likely to have agreed to a plea that would not have had negative immigration consequences. Thus, defendant failed to carry his burden of showing he was entitled to relief.
2. Pre-Trial Motions
Decisions to file pretrial motions, such as a motion to suppress evidence, are tactical decisions, within the discretion of counsel to control trial strategy. (People v. Turner (1992) 7 Cal.App.4th 1214, 1220-1222.) Trial counsel frequently forego pretrial motions in exchange for a favorable plea agreement. Defendant submitted no evidence concerning the failure of trial counsel to file any pretrial motions. Defendant submitted no evidence indicating any pretrial motions were merited. Accordingly, defendant has failed to show counsels performance was deficient. Further, even if counsels performance was deficient, defendant has failed to show that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., and ARMSTRONG, J.