Opinion
H048079
08-18-2021
THE PEOPLE, Plaintiff and Respondent, v. RAMON AGUILAR, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. CR15129
Greenwood, P.J.
In 1990, defendant Ramon Aguilar pleaded guilty to three counts of selling cocaine and one count of possessing cocaine for sale. In 2019, Aguilar moved to vacate his conviction under Penal Code section 1473.7.
Subsequent undesignated statutory references are to the Penal Code.
Aguilar appeals the trial court's denial of his motion to vacate. He contends he did not meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the plea.
For the reasons below, we find this claim without merit and we affirm the order denying the motion.
I. PROCEDURAL BACKGROUND
In 1990, as part of a plea agreement, Aguilar pleaded guilty to four counts: Counts 1 to 3-selling cocaine (Health & Saf. Code, § 11352); and count 4-possession of cocaine for sale (Health & Saf. Code, § 11351). The minutes of the plea hearing stated, “Defendant is advised of the possibility of deportation.” Aguilar was represented by counsel throughout the proceedings. The trial court sentenced Aguilar to state prison for an aggregate term of four years.
In 2019, Aguilar filed a motion to vacate his 1990 guilty plea under section 1473.7. In support, Aguilar submitted a declaration asserting that, among other things, he did not know at the time of his plea that the conviction could become a deportable offense years later. He stated he had not received “affirmative and competent advice regarding the potential immigration consequences” of his case. He stated that not having immigration consequences was “the determinative factor” in his decision whether to accept the plea, and that he would not have accepted the plea if he had known the conviction would result in deportation.
After a hearing on the motion to vacate, Aguilar requested an opportunity to file additional briefing, and the trial court granted the request. After the trial court did not receive additional briefing, the court deemed the matter submitted, and denied the motion to vacate the guilty plea. In the minute order, the court stated that Aguilar's declaration did not provide a sufficient factual basis to support the motion. The court noted that there was no information regarding Aguilar's immigration status, nor how the conviction would affect it. The court further noted that there was no specific information regarding the circumstances of the plea, and the court found that the record showed Aguilar was advised of the possibility of deportation at the time of the plea.
II. DISCUSSION
Aguilar contends the trial court erred in denying his motion to vacate because he did not receive an adequate advisement about the immigration consequences of his plea, and he did not meaningfully understand the immigration consequences due to the complexities of immigration law. He does not claim the attorney who advised him rendered ineffective assistance of counsel or otherwise failed to advise him adequately. Rather, he contends the court that received his plea erred because the court only advised him of the “possibility” of deportation whereas his offense makes deportation mandatory. The Attorney General contends the motion to vacate was properly denied because Aguilar failed to meet the required burden of proof.
A. Legal Principles
Section 1473.7 provides a procedural mechanism to vacate a conviction or sentence “to certain immigrants who accepted [guilty] pleas without understanding the immigration-related consequences of such decisions.” (People v. Vivar (2021) 11 Cal.5th 510 (Vivar).) Under section 1473.7, subdivision (a)(1), a person who is no longer in criminal custody may move to vacate a conviction or sentence on the ground it 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.” (§ 1473.7, subd. (a)(1).) The moving party must establish the grounds for relief by a preponderance of the evidence. (Id., subd. (e)(1).)
The California Supreme Court recently held the standard of review for an appeal from the denial of a motion to vacate under subdivision (a)(1) of section 1473.7 is independent review. (Vivar, supra, 11 Cal.5th at pp. 523-525.) “[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.” (Id. at p. 525.) The court clarified, however, “ ‘ “[i]ndependent review is not the equivalent of de novo review...”.' [Citation.] An appellate court may not simply second-guess factual findings that are based on the trial court's own observations.” (Id. at p. 527.) “In section 1473.7 proceedings, appellate courts should similarly give particular deference to factual findings based on the trial court's personal observations of witnesses. [Citation.] Where, as here, the facts derive entirely from written declarations and other documents, however, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, ‘[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. [Citation.]” (Id. at pp. 527-528.)
B. The Trial Court Did Not Err in Denying the Motion to Vacate
Aguilar does not claim his trial counsel erred or rendered ineffective assistance in advising him on the immigration consequences of his plea. Rather, he contends he did not meaningfully understand the immigration consequences of his plea due to the complexities of immigration law, and he argues that the sentencing court erred because he was advised that immigration consequences were possible but not mandatory. We find no error sufficient to vacate the conviction under section 1473.7.
As Aguilar acknowledges, at the time he entered his plea, the offenses to which he pleaded guilty were not grounds for mandatory deportation; that potential consequence came about as the result of subsequent changes in the law. (See United States v. Murillo-Alvarado (9th Cir. 2017) 876 F.3d 1022; Lopez v. Sessions (9th Cir. 2018) 901 F.3d 1071; see also 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2).) The Attorney General agrees with Aguilar that his “convictions under sections 11351 and 11352 did not necessarily result in a ‘mandatory removable' deportation status until several years later when courts began applying a modified-categorical analysis to these sections.” Nonetheless, the complexities of immigration law do not constitute grounds for relief under section 1473.7, and Aguilar cites no authority establishing that proposition.
Rather, citing the minute order of the plea hearing, Aguilar argues the court that accepted his plea erred. The minute order stated, “Defendant is advised of the possibility of deportation.” The record does not include any transcript of the hearing, but Aguilar assumes this entry reflects the trial court's advisement under section 1016.5. That section requires the court to administer the following: “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.” (§ 1016.5, subd. (a), italics added.) Aguilar contends this advisement, by including the words “may have, ” caused him to misunderstand the immigration consequences of his plea because he did not know his offenses would result in mandatory deportation years later. He argues that he is therefore entitled to relief.
For this proposition, Aguilar relies on People v. Patterson (2017) 2 Cal.5th 885 (Patterson) and People v. Ruiz (2020) 49 Cal.App.5th 1061 (Ruiz). In Patterson, the California Supreme Court held that a trial court's issuance of the section 1016.5 immigration advisement does not by itself bar a defendant from obtaining relief. The court of appeal in Ruiz, citing Patterson, stated, “[T]he words ‘may have' in a section 1016.5 immigration advisement are not an adequate immigration advisement for defendants charged with serious controlled substance offenses. [Citation.] Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. [Citation.]” (Ruiz, supra, at p. 1065.) Quoting these statements out of context, Aguilar argues the section 1016.5 advisement was thereby inadequate in his case as well.
Aguilar misunderstands the import of those cases. Both Patterson and Ruiz analyzed cases in which defense counsel failed to advise the defendants their convictions would result in mandatory deportation. Those courts did not hold that trial courts must advise the defendants of the mandatory consequences; rather, they held that the giving of the section 1016.5 advisement did not bar the defendants from bringing claims based on inadequate advice from defense counsel. The California Supreme Court in Patterson placed the burden squarely on defense counsel to render accurate advice in this regard: “[W]hen... federal immigration law specifies in ‘succinct, clear, and explicit' terms that a criminal conviction will result in deportability, the United States Supreme Court has held that a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea. [Citation.] The generic advisement under section 1016.5 is not designed, nor does it operate, as a substitute for such advice.” (Patterson, supra, 2 Cal.5th at p. 898.) Neither Patterson nor Ruiz created a duty for trial courts to advise defendants in the manner Aguilar asserts he should have been advised. To the contrary, the California Supreme Court expressly rejected this proposition. “[T]o hold that ignorance of specific immigration consequences may constitute good cause to withdraw a plea is not to hold that the trial court is under a duty to provide such case-specific immigration advice.” (Id. at p. 897.)
In short, Aguilar asserts no facts or circumstances of his plea that would show it was “legally invalid due to prejudicial error” as required by section 1473.7. He does not claim his counsel failed to advise him adequately, and a trial court's section 1016.5 advisement does not render a plea legally invalid even if the conviction would result in mandatory deportation. We conclude this claim is without merit.
III. DISPOSITION
The order denying the motion to vacate Aguilar's conviction under section 1473.7 is affirmed.
WE CONCUR: Grover, J., Danner, J.