Opinion
G056449
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ADRIAN ARAIZA, Defendant and Appellant.
Law Offices of Mark S. Devore, Mark S. Devore and Adam R. Stull for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Adrianne S. Denault and Sharon L. Rhodes, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C-96428) OPINION Appeal from an order of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Reversed. Law Offices of Mark S. Devore, Mark S. Devore and Adam R. Stull for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Adrianne S. Denault and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Effective January 2017, a person can file a motion to vacate a prior conviction because: "The 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 or nolo contendere." (Pen. Code, § 1473.7, subd. (a)(1), italics added.)
Further undesignated statutory references will be to the Penal Code.
Courts uniformly interpreted the "prejudicial error" requirement to mean that a person had to prove an ineffective assistance of counsel (IAC) claim under the existing traditional standards. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) But effective January 2019, the Legislature clarified: "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1), as amended by Stats. 2018, ch. 525, § 2.)
In 1992, minor defendant Miguel Adrian Araiza, pleaded guilty to an assault with a firearm, shooting from a motor vehicle, and related enhancements. In 2018, Araiza filed a section 1473.7 motion to vacate his convictions; the trial court denied the motion, finding that Araiza did not prove an IAC claim. Later that year, Araiza appealed. The Attorney General concedes the 2019 clarification is retroactive.
This court recently held "that to establish a 'prejudicial error' under section 1473.7, a person need only show by a preponderance of the evidence: (1) he did not 'meaningfully understand' or 'knowingly accept' the actual or potential adverse immigration consequences of the plea; and (2) had he understood the consequences, it is reasonably probable he would have instead attempted to 'defend against' the charges." (People v. Mejia (2019) 36 Cal.App.5th 859, 862 (Mejia).)
Here, the trial court applied the wrong legal standard when it denied Araiza's section 1473.7 motion. Thus, we reverse. Araiza may refile the motion and have it heard and reconsidered in light of Mejia, supra, 36 Cal.App.5th 859.
I
FACTS AND PROCEDURAL HISTORY
On October 13, 1992, the prosecution filed a felony complaint alleging Araiza had committed two crimes: assault with a firearm; and shooting a firearm from a motor vehicle. The complaint further alleged gang, firearm, and great bodily injury enhancements. That day, Araiza pleaded guilty to the two crimes and admitted the allegations. Araiza's maximum exposure was 13 years in state prison.
Araiza initialed an immigration advisement on the plea form: "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.)
On May 11, 1993, the trial court sentenced Araiza to eight years in state prison. The court denied Araiza's request to be housed at the California Youth Authority. The Section 1473.3 Motion
On January 18, 2018, Araiza filed a motion to vacate his 1992 convictions. (§ 1473.7.) Araiza attached a declaration to the motion. Araiza stated, "I was brought to the United States when I was four months old. I was a permanent resident until residency status was revoked when I was 16 years old due to the convictions in this case. I attended school within the Anaheim City School District since I was six years old. I earned my G.E.D. in 1994."
Araiza continued: "I was not advised of the immigration consequences of pleading guilty to what were considered aggravated felonies under immigration laws, and that by pleading guilty to aggravated felonies under immigration laws would result in having permanent residence status revoked and I would be deported. My attorney did not ask me if I was a United States citizen or not."
Araiza stated: "If I had been advised that by pleading guilty to aggravated felonies in this case under the immigration law that I would lose my permanent residency status and that I would be deported with no relief from deportation available to me because of conviction to aggravated felony I would not have taken the deal given to me."
Araiza attached a declaration from Michael Currier, the attorney who represented him at the guilty plea: "Due to the passage of time and my fading recollection generally, I have not the slightest recollection of this particular case or the defendant named. . . . [¶] . . . [¶] I have no recollection of advising this defendant anything related to possible immigration consequences other than as set forth in the court's [change of plea] forms. I have no recollection of this defendant requesting further information regarding immigration or any potential future consequences of his guilty plea."
The Hearing on the Motion
On April 27, 2018, Araiza's section 1473.7 motion came before the trial court. The matter was argued, but no witnesses testified. Later that day, the court issued a nine-page order, denying the section 1473.7 motion. The court stated that it was analyzing Araiza's claim based on "trial counsel's ineffective legal assistance (i.e., counsel's failure to advise him of the immigration consequences of his guilty plea)."
The Instant Appeal
In 2018, Araiza appealed. Effective in 2019, while the matter was pending in this court, the Legislature amended the statute: "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1).) We invited the parties to file supplemental briefs. Both parties agree the Legislature's amendment is a clarification of existing law and therefore applies to nonfinal judgments, including this appeal. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 ["A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment"].)
II
DISCUSSION
This issue is one of statutory interpretation, which is a question of law; our review is de novo. (John v. Superior Court (2016) 63 Cal.4th 91, 95-96.) Our goal is to determine Legislature's intent. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) We first look to the statute, giving the individual words "their 'usual and ordinary meanings.'" (People v. Lawrence (2000) 24 Cal.4th 219, 230-231.) "We do not, however, consider the statutory language 'in isolation.'" (People v. Murphy (2001) 25 Cal.4th 136, 142.) "We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.'" (Ibid.)
The legal issues in this case and Mejia, supra, 36 Cal.App.5th 859, are very closely aligned. Therefore, we will be quoting extensively from Mejia. "A. Background and Context
"The current rules and procedures regarding noncitizens—and their respective rights within the criminal justice system—are based on decades of changes and advancements within the legislative, executive, and judicial branches of government, at both the state and federal levels. Before interpreting and applying section 1473.7, it is helpful to briefly review some of those changes and advancements.
"Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla)."
"In 1969, the California Supreme Court 'recognized that a substantial portion—probably the vast majority—of criminal cases are disposed of through the process of plea bargaining.' (In re Tahl (1969) 1 Cal.3d 122, 138-139 (conc. & dis. opn. of Peters, J.).) As such, courts have developed procedural protections for defendants who plead guilty. For instance, these procedures require a knowing, intelligent, and express waiver of a defendant's constitutional rights. (Ibid., citing Boykin v. Alabama (1969) 395 U.S. 238.) Defendants must also be informed of the direct consequences of their guilty pleas. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) However, for many years the immigration ramifications for noncitizen defendants were considered indirect or collateral consequences of a guilty plea. (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.)
"We will be referring to guilty pleas throughout this opinion, but the same principles apply to pleas of nolo contendere (no contest)."
"Effective in 1977, the [California] Legislature required courts to provide additional protections for noncitizen defendants: 'Prior to acceptance of a plea of guilty . . . to any offense punishable as a crime under state law . . . the court shall administer the following advisement on the record to the defendant: [¶] 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).)
"A defense attorney's 'affirmative misrepresentation' about immigration consequences could, in some cases, constitute ineffective assistance. (In re Resendiz (2001) 25 Cal.4th 230, 247.) However, unless there [was] an inquiry by a defendant, counsel could generally rely on the court's immigration advisement. (People v. Quesada (1991) 230 Cal.App.3d 525, 535-536.) That is, unless counsel gave patently inaccurate advice (misadvice), the failure to discuss immigration consequences did not support an IAC claim because counsel's performance did not fall below an objectively reasonable standard. (Strickland, supra, 466 U.S. at pp. 691-692.)
"2. Padilla and Subsequent Advancements
"In 2010, the United States Supreme Court recognized that: 'The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses . . . , immigration reforms over time have expanded the class of deportable offenses . . . . The "drastic measure" of deportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.' (Padilla, supra, 559 U.S. at p. 360.) The Court rejected the former 'affirmative misadvice' test for IAC, holding that defense attorneys have an obligation to understand and accurately explain the immigration consequences of a guilty plea: 'Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.' (Id. at p. 374.)
"Effective January 1, 2016, the California Legislature enacted two new Penal Code sections, which codified and expanded the protections for noncitizen criminal defendants. (§§ 1016.2, 1016.3.) In section 1016.2, subdivision (c), the Legislature noted that: 'In [Padilla], the United States Supreme Court found that for noncitizens, deportation is an integral part of the penalty imposed for criminal convictions. Deportation may result from serious offenses or a single minor offense. It may be by far the most serious penalty flowing from the conviction.'
"'Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences.' (§ 1016.2, subd. (e).) 'Once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation.' (§ 1016.2, subd. (f).)
"'The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.' (§ 1016.2, subd. (g).) 'It is the intent of the Legislature to codify [Padilla] and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.' (§ 1016.2, subd. (h), italics added.)
Araiza and his wife have three children and three grandchildren that were born in the United States.
"'Defense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of and with the informed consent of the defendant, and consistent with professional standards, defend against those consequences.' (§ 1016.3, subd. (a).) 'The prosecution, in the interests of justice, and in furtherance of . . . Section 1016.2, shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.' (§ 1016.3, subd. (b).) "B. Section 1473.7
"Effective January 1, 2017, the Legislature further expanded the protections for noncitizen criminal defendants. The new statute provided, in relevant part: 'A person no longer imprisoned . . . may prosecute a motion to vacate a conviction . . .: [¶] (1) . . . [that] is legally invalid due to 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 . . . .' (Former § 1473.7, subd. (a)(1).) Section 1473.7, subdivision (e)(1), which remains unchanged, provides: 'The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a).' (Italics added.)
"After its enactment, California courts uniformly interpreted section 1473.7 under the existing and long-standing rules for constitutional IAC claims. (See, e.g., People v. Espinoza (2018) 27 Cal.App.5th 908, 917-918 [defendant met his burden under section 1473.7 by establishing both Strickland prongs]; People v. Tapia (2018) 26 Cal.App.5th 942, 955 ['Having failed to establish either prong—deficient performance or prejudice—Tapia has not proven ineffective assistance']; People v. Olvera (2018) 24 Cal.App.5th 1112, 1118 ['Because Olvera has not established that his counsel rendered deficient performance, he is not entitled to relief'].)
"Effective January 1, 2019, the Legislature amended section 1473.7, subdivision (a), to add: '(1) . . . A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.' In amending the statute, the Legislature noted 'that a finding based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that 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.' (Legis. Counsel's Dig., Assem. Bill No. 2867 (2017-2018 Reg. Sess.), italics added.) The Legislature's declared intent was 'to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute's implementation.' (Ibid.)" (Mejia, supra, 36 Cal.App.5th at pp. 866-869.)
In People v. Camacho (2019) 32 Cal.App.5th 998, 1001-1002 (Camacho), "defendant pleaded no contest in 2009 to a charge of possessing marijuana for sales. [Citation.] In 2017, defendant moved to vacate the conviction. Defendant stated his attorney 'never discussed immigration issues or any settlement offers, nor was he instructed to consult with an immigration attorney. [¶] . . . Defendant's attorney never told defendant of the consequences of [the] a plea . . . . Counsel did not tell defendant that he could take the case to trial or discuss the possible outcome. Defendant declared: "I would have never taken the plea . . . if I would have known that it would have not permitted me to obtain legal status . . . . I have two United States citizen children and my wife is a United States citizen. I cannot leave them here in the United States without being [there] to support them."' (Id. at p. 1001.) The trial court denied the motion, finding that counsel's representation 'did not fall below the standards of what was reasonably expected . . . at the time.' Further, the trial 'court noted defendant's concern was not getting jail time, and found no facts indicating prejudice.' (Id. at p. 1004.)
"The Second District Court of Appeal disagreed. The court 'remanded to the superior court with instructions to grant the motion and to vacate the conviction.' (Camacho, supra, 32 Cal.App.5th at p. 1012.) The court held that the amended statute did not require a finding of an error by defendant's counsel. Rather, the court held that the law required an error on the part of the defendant. The court also concluded that the record established such an error. That is, the record in Camacho established 'defendant's own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.' (Id. at p. 1009, italics added.)
"As far as prejudice, Camacho held: 'Because the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are not limited to the Strickland test of prejudice, . . . [a] reasonable probability of a different outcome in the original proceedings absent the error.' (Camacho, supra, 32 Cal.App.5th at p. 1009.) Rather, the court found that a 'defendant may show prejudice by "convinc[ing] the court [that he] would have chosen to lose the benefits of the plea bargain despite the possibility of or probability deportation would nonetheless follow."' (Id. at p. 1010.) The court relied, in part, on the Supreme Court's recent holding in Lee v. United States (2017) ___ U.S. ___ [137 S.Ct. 1958, 1967] (Lee) [a noncitizen defendant demonstrated a 'reasonable probability' that he 'would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a "Hail Mary" at trial'].)
"The Camacho court found 'compelling' evidence of prejudice in the record from the trial court. Defendant 'was brought to the United States over 30 years ago . . . . Defendant is, and at the time of his plea was, married to a United States citizen with an American citizen son, and now also an American citizen daughter. At the time of his plea, defendant was employed . . . and now works as a tow truck driver. Defendant has no other adult criminal convictions.' (Camacho, supra, 32 Cal.App.5th at p. 1011.) The Camacho court concluded that 'defendant showed by a preponderance of evidence that he would never have entered the plea if he had known that it would render him deportable, the errors which damaged his ability to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of a plea were prejudicial. The [superior] court was thus required to grant the motion to vacate the conviction as invalid.' (Id. at pp. 1011-1012.) "C. Analysis and Application
"We agree with the Second District Court of Appeal's analysis in Camacho, supra, 32 Cal.App.5th 998. Under the plain language of section 1473.7 as amended, it is apparent that a defendant is no longer required to prove an IAC claim in order to have his or her convictions vacated and declared legally invalid: 'A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.' (§ 1473.7, subd. (a)(1).) Rather, a superior court is required to make a finding of legal invalidity 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.' (§ 1473.7, subd. (a)(1), italics added.)
"While codifying the United States Supreme Court's holding in Padilla, supra, 559 U.S. 356, our Legislature also expressed an intent to 'encourage the growth of such case law in furtherance of justice . . . .' (§ 1016.2, subd. (h).) Consistent with that legislative intent, we agree with the Camacho court's [holding] that the focus of the inquiry in a section 1473.7 motion is on the 'defendant's own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.' (See Camacho, supra, 32 Cal.App.5th at p. 1009, italics added.)
"We also agree with the Camacho court as to the prejudice component of the amended statute. That is, a 'prejudicial error' occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a 'Hail Mary')—had the person known that the guilty plea would result in mandatory and dire immigration consequences. (See Lee, supra, ___ U.S. ___ ['Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation'].)
"'Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea . . . . [¶] But common sense . . . recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. [Citation.] When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive.' (Lee, supra, ___ U.S. ___ .) 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.' (Id. at p. ___ .)" (Mejia, supra, 36 Cal.App.5th at pp. 869-872.)
Here, Araiza stated in his motion to withdraw his guilty plea: "I was not advised of the immigration consequences of pleading guilty to what were considered aggravated felonies under immigration laws, and that by pleading guilty to aggravated felonies under immigration laws would result in having permanent residence status revoked and I would be deported. My attorney did not ask me if I was a United States citizen or not." In other words, Araiza alleged that he did not "meaningfully understand" or "knowingly accept" the mandatory deportation consequences when he pleaded guilty. (See § 1473.7, subd. (a)(1).)
When ruling on the motion, the trial court made no express or implied credibility determinations regarding Araiza's declaration, as the court's denial of the motion was based solely on IAC principles. (See Strickland, supra, 466 U.S. 668.) In short, Araiza's declaration appeared to establish his own "error" regarding the immigration consequences of his guilty plea. (See Camacho, supra, 32 Cal.App.5th at p. 1009 [the focus of the inquiry in a section 1473.7 motion is on the "defendant's own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States"].)
As far as the prejudice factor, there is some contemporaneous evidence to substantiate Araiza's claim that he would not have pleaded guilty had he known about the mandatory immigration ramifications. Similar to Camacho, Araiza had been in the United States for 16 years at the time of his guilty plea, since he was an infant. As Araiza argues: "Considering his youth, his lack of family in Mexico, that he had essentially lived his entire life to that point in California, and the relatively short time differential between the negotiated sentence (eight years) and the maximum possible sentence (13 years), he would have fought hard to remain in the United States had he been aware of the immigration consequences of pleading guilty."
It appears this was not a "negotiated sentence" as Araiza characterizes it. Rather, he apparently pleaded "straight up" to the court (admitting all crimes and enhancements). The matter was then referred to probation for a sentencing recommendation. --------
However, there is other evidence that would tend to suggest that Araiza may have pleaded guilty, even if he had meaningfully understood the dire immigration consequences. As the trial court stated in its ruling, "according to the presentencing report, the prosecution's case was strong. Police officers who had been dispatched to the area in response to a report of shots previously fired, saw defendant get out of the vehicle and fire a shot. As defendant turned around, he and one of the officers made eye contact. They saw defendant get back into the vehicle, which left the area. As the officers followed, they saw someone throw a gun from the car. Shortly thereafter, the occupants of the car were apprehended, and defendant admitted firing the shot."
In sum, we are reversing the trial court's denial of Araiza's section 1437.7 motion because the court exclusively relied on IAC principles to evaluate Araiza's motion. (See Strickland, supra, 466 U.S. 668.) Araiza may refile his section 1437.7 motion. The court may then hear and reconsider the motion under the proper legal framework, as held in Mejia, supra, 36 Cal.App.5th 859. (See People v. Chen (2019) 36 Cal.App.5th 1052, 1060 [to determine whether a defendant would not have pled guilty, a court must examine "the record for corroboration and consider the likelihood of success at trial, the potential consequences after a trial compared to the consequences flowing from the guilty plea, and the importance of immigration consequences to the defendant"].)
III
DISPOSITION
The trial court's order is reversed. Araiza may refile the section 1437.7 motion as discussed within this opinion.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.