Opinion
E076130
11-16-2021
THE PEOPLE, Plaintiff and Respondent, v. SULAIMAN SALIEM ABDULGHANI, Defendant and Appellant.
Law Office of R. Wayne McMillan and R. Wayne McMillan for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Robin Urbanski and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB12956 J. David Mazurek, Judge. Reversed and remanded with directions.
Law Office of R. Wayne McMillan and R. Wayne McMillan for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Robin Urbanski and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SLOUGH J.
In 1998, Sulaiman Saliem Abdulghani pled no contest to nine separate crimes connected to a check fraud and car resale scheme, with the in-custody portion of his sentence totaling 365 days in county jail. In 2020, he filed a motion to vacate the sentence, alleging he didn't understand the fact that he was sentenced to a year in jail meant his crimes had more serious immigration consequences than if his sentence was less than a year. The trial judge denied his motion.
Abdulghani argues he's eligible for relief because he didn't understand the immigration consequences of his plea and wouldn't have accepted the plea if he had. In particular, he argues he didn't know any sentence of a year or more in jail had more serious immigration consequences than a sentence of less than a year and claims had he known he would have more vigorously negotiated for his sentence to be restructured so his jail time would be reduced by one day. In support, he points to the fact that he had resided in the United States for years when he entered the plea, had a wife and child who are citizens, and has only refugee status in his only other home country, where he lived as a child. The People argue, among other things, that Abdulghani's negotiated disposition was so favorable that a more favorable disposition was unlikely, and that Abdulghani himself admits he would not have risked trial rather than accepting the deal he took.
We conclude that given there was only one day's difference between a plea with the possibility of avoiding immigration consequences and a plea with guaranteed immigration consequences, Abdulghani met his burden to show it is reasonably probable he would have attempted to negotiate a sentence of one day less had he been properly advised.
I FACTS
Abdulghani was born in Lebanon to Palestinian refugees. He is not a Lebanese citizen, and travels with a refugee passport issued by Lebanon.
Abdulghani eventually immigrated to the United States and became a legal permanent resident in 1993. He married a naturalized United States citizen and had two United States citizen children who were 19 and 25 at the time he filed his motion. He owned a used car dealership and was the sole wage earner for the family.
In 1996, Abdulghani conspired with another person to purchase four vehicles using bogus checks and resell the vehicles.
In July 1998, Abdulghani pled no contest to four counts of grand theft of a vehicle (Pen. Code, § 487h, subd. (a), unlabeled statutory citations refer to this code), four counts of using checks with insufficient funds (§ 476a, subd. (a)) and one count of conspiracy to commit grand theft of a vehicle (§ 182, subd. (a)(1)). The trial judge sentenced him to 365 days in county jail with credit for time served and three years' probation, in accordance with his plea deal.
In 2020, Abdulghani moved under section 1473.7 to reduce his sentence. The court held a hearing on the motion on October 15, 2020. Though the judge offered to let the parties put on testimony, neither party presented any additional evidence at the hearing. After hearing argument from both parties, the judge denied the motion.
Abdulghani says his motion was seeking to have his sentence reduced, and not to vacate his conviction or sentence. The People argue 1473.7 doesn't offer a sentence reduction as relief. We agree that 1473.7 offers relief in the form of an order vacating a conviction or sentence. Since Abdulghani seeks relief from his plea agreement, we construe his motion as a motion to vacate his conviction.
Abdulghani appealed.
II ANALYSIS
Abdulghani argues the trial judge should have granted him relief because he was not advised that only one day's difference in his sentence separated him from potentially avoiding immigration consequences altogether, and had he known he would not have accepted the plea deal.
Federal immigration law requires mandatory deportation for anyone convicted of an "aggravated felony." (8 U.S.C. § 1229b (a).) Aggravated felonies include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year," and "an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year." (8 U.S.C. § 1101(43)(G), (R).) Neither party contests that Abdulghani's convictions fall under these definitions of aggravated felony and render him deportable both because the crimes meet the basic definition and because his term of imprisonment for them was one year.
Section 1473.7, subdivision (a)(1), allows anyone not in criminal custody to file a motion to vacate a conviction or sentence if" '[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.'" (People v. Rodriguez (2021) 60 Cal.App.5th 995, 1002.) Where a party moves to vacate their conviction or sentence under section 1473.7, the moving party must show only "that one or more of the established errors were prejudicial and damaged his 'ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea.'" (People v. Camacho (2019) 32 Cal.App.5th 998, 1009 (Camacho); see People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia).) A court should vacate a plea if "the defendant simply proves by a preponderance of the evidence a '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.'" (Mejia, at p. 871.)
A defendant establishes prejudice where they show"' "it is 'reasonably probable' the defendant would not have pleaded guilty if properly advised." '" (People v. Martinez (2013) 57 Cal.4th 555, 562 (Martinez), quoting People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210; see Camacho, supra, 32 Cal.App.5th at p. 1010 [holding "[t]he principles found in Martinez and Lee [v. United States (2017) 137 S.Ct. 1958, 1966] apply equally to a prejudice analysis under section 1473.7"].) "[T]he test for prejudice considers what the defendant would have done, not what the effect of that decision would have been." (Martinez, at p. 564.)
In order to show prejudice, a moving party must at minimum "provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised." (Martinez, supra, 57 Cal.4th at p. 565.) Once they provide such a declaration, "[i]t is up to the trial court to determine whether the defendant's assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances." (Ibid.) In assessing the credibility of a moving party's claim they wouldn't have entered a plea but for some error, a court may look at a number of factors, including the moving party's history with the United States, the length of their residency, their family ties here versus in their country of origin, and the strength of the evidence supporting the underlying conviction. (See Mejia, supra, 36 Cal.App.5th at p. 872.) A court should also look at "the importance the defendant placed on avoiding deportation, the defendant's priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible." (People v. Vivar (2021) 11 Cal.5th 510, 530 (Vivar).)
When reviewing decisions under section 1473.7, we exercise our" 'independent judgment to determine whether the facts satisfy the rule of law.'" (See Vivar, supra, 11 Cal.5th at pp. 523-527.) This is not the same as de novo review. Under independent review,"' "the credibility of witnesses the [superior court] heard and observed"' are entitled to particular deference, even though courts reviewing such claims generally may' "reach a different conclusion [from the trial court] on an independent examination of the evidence . . . even where the evidence is conflicting." '" (Id. at p. 527.) However, "[w]here . . . the facts derive entirely from written declarations and other documents . . . '[t]he trial court and this court are in the same position in interpreting written declarations' when reviewing a cold record in a section 1473.7 proceeding." (Id. at p. 528.) Thus, we defer to the trial judge's factual findings based on live testimony but need not defer to factual findings based on the trial judge's review of the record. Because neither side presented any live testimony at the hearing in this case, we are not obligated to defer to the trial judge's factual findings.
We conclude Abdulghani made a showing of prejudicial error here, because he was not adequately advised of the immigration consequences of his plea, and it is reasonably probable that if he had been so advised, he would not have accepted the deal and would have asked to restructure it such that his jail time was one day less. It is uncontested Abdulghani's attorney didn't advise him a sentence of less than a year in county jail would've allowed him to potentially avoid immigration consequences. Nor do the People contest that the only thing preventing Abdulghani from potentially avoiding immigration consequences was a single day of custody in county jail. Given this, we consider it reasonably probable that had Abdulghani been properly advised he would have attempted to negotiate a disposition which reduced his sentence by one day.
Though Abdulghani admits he would have accepted the deal if his choices were limited to either accepting a 365-days sentence or going to trial, that isn't dispositive. "A decision to reject a plea bargain . . . 'might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences.' [Citation.] When a court weighs whether a defendant would have taken the latter path, it need not decide whether the prosecution would actually 'have offered a different bargain'-rather, the court should consider 'evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.'" (Vivar, supra, 11 Cal.5th at p. 529, italics omitted.)
Thus, Abdulghani needn't prove he would've risked trial rather than accept the offer. Nor does he need to prove the prosecution would have likely accepted such a counter. The likelihood the prosecution would've accepted a counter, or that another offer was feasible, does matter. But it only matters for assessing the credibility of Abdulghani's claim. Here, because the "better offer" differed little from the offer he actually accepted, we find Abdulghani's claim more credible than in a case where a defendant might need to totally restructure the deal to achieve beneficial immigration ends.
This is especially true given the variety of ways Abdulghani could've structured the deal to satisfy the prosecution while still reducing his overall sentence. For instance, Abdulghani could've waived some or all of his pre-sentence custody credits, resulting in more actual time in-custody while receiving a shorter sentence. (See People v. Johnson (2002) 28 Cal.4th 1050, 1057 [holding courts may condition a grant of probation on a waiver of all pre-sentence custody credits].) Abdulghani may also have been able to negotiate for a stipulated or stayed sentence to be imposed and/or executed should he fail to complete probation, or any of a number of other more onerous conditions in exchange for one day less of custody. Feasible alternatives to the 365-day sentence existed, and Abdulghani could therefore reasonably" 'expect or hope a different bargain would or could have been negotiated.'" (Vivar, supra, 11 Cal.5th at p. 529.)
It's also significant that other factors showed Abdulghani had strong incentive to negotiate a different disposition, including by accepting other onerous conditions, to avoid immigration consequences. Abdulghani had significant ties to the United States. He had immigrated five years before his plea, was married to a United States citizen, and already had a child (he now has two) who was a United States citizen, born and raised in the United States. Though Abdulghani has some family ties in Lebanon, he is not a citizen of Lebanon, and hasn't lived there for decades. As a Palestinian refugee he is stateless, and his most significant tie to any country-by far-is his permanent legal residency in the United States.
This case is thus similar to Camacho and Mejia, which involved defendants who had lived in the United States for at least eight years at the time of their crimes, had significant immediate personal family ties, and few ties to their country of origin. (Mejia, supra, 36 Cal.App.5th at pp. 872-873; see Camacho, supra, 32 Cal.App.5th at p. 1011.)
In short, it is reasonably probable that had Abdulghani known only one day separated him from avoiding exposure to severe immigration consequences, he would have tried and succeeded at negotiating a disposition that, while harsher in other ways, resulted in a jail sentence one day shorter.
Nevertheless, the People argue Abdulghani was properly advised that his plea could have immigration consequences, and that Abdulghani meaningfully understood those consequences, because he received and acknowledged he understood a series of boilerplate admonitions from the court and his attorney and also signed and initialed a plea form containing an additional boilerplate admonition that "deportation, exclusion from admission to the United States, or denial of naturalization . . . may result from a conviction of the crime to which I plead."
But these boilerplate admonitions, on their own, aren't enough. In People v. Soriano (1987) 194 Cal.App.3d 1470, 1478-1479 the court considered a claim of ineffective assistance of counsel-a much higher standard than the one applied under section 1473.7-based on defense counsel's alleged failure to advise her client of immigration consequences of a plea. The moving party's counsel testified she advised her client" 'in a general sense, that is, the same language that is used in the admonition I used in court, that such a plea could have consequences on his immigration status, his naturalization, deportation and exclusion from admission.'" (Id. at p. 1479.) The court held that "[e]ven assuming counsel's version of events is the correct one, her response to defendant's immigration questions was insufficient," because "she merely warned defendant that his plea might have immigration consequences," and further research would have revealed his sentence made him deportable. (Id. at p. 1482.) Here, Abdulghani claims his attorney never raised the issue of immigration consequences at all, and that the only time anyone discussed it with him was when either the court or the prosecution brought it up. However, even assuming his counsel at least provided him a boilerplate admonition and went through the plea form with him, these advisements were not sufficient.
Nor were the court's own advisements sufficient to cure any misunderstanding, as a court's "generic advisement under section 1016.5 is not designed, nor does it operate, as a substitute for" an attorney's advice. (People v. Patterson (2017) 2 Cal.5th 885, 898.)
Accordingly, we conclude that Abdulghani has demonstrated an error affecting his ability to "meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty" under section 1473.7, and that it's reasonably probable he would have negotiated for a different plea if he'd been advised properly.
III DISPOSITION
We reverse the order denying defendant's section 1473.7 motion to vacate his conviction and remand with directions to grant the motion and permit him to withdraw his plea.
We concur: RAMIREZ P. J., MILLER J.