Opinion
B328145
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO AREVALO, Defendant and Appellant.
Christopher L. Haberman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of the County of Los Angeles, No. BA438273 Kevin P. Stennis, Judge. Remanded for further proceedings.
Christopher L. Haberman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendant appeals from the trial court's order denying his motion to vacate his sentence pursuant to Penal Code section 1473.7, arguing, among other things, that the matter should be remanded for a further evidentiary hearing based on the discovery of new evidence that was unavailable at the time of the hearing on his motion. We remand for further proceedings.
All further statutory references are to the Penal Code, unless otherwise indicated.
II. BACKGROUND
A. Underlying Conviction
On July 21, 2015, the Los Angeles County District Attorney filed a criminal complaint charging defendant in count 1 with stalking in violation section 646.9,subdivision (a); in count 2 with sexual battery by restraint in violation of section 243.4, subdivision (a); in counts 3, 5, and 7 with criminal threats in violation of section 422, subdivision (a); in counts 4 and 6 with dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1). On July 31, 2015, the District Attorney added an additional count 8, charging defendant with assault with intent to commit a felony in violation of section 220, subdivision (a)(1).
On September 1, 2015, the trial court found that defendant was incompetent to stand trial and suspended the proceedings until such time as "the court finds [that he] is restored to competence." On February 11, 2016, the court found that defendant was now competent to stand trial, reinstated the proceedings, and set the matter for a preliminary hearing.
On March 14, 2016, the parties reached a plea agreement. At the plea hearing, defendant was assisted by a Spanish language interpreter. The trial court reviewed the terms of the plea agreement with defendant, advised him of his constitutional rights, and explained certain consequences of his plea.
The trial court then had the following exchange with defendant and his counsel, concerning specifically the immigration consequences of the plea:
"The Court: If you're not a citizen of the United States, this conviction will result in your deportation, exclusion from admission, or denial of naturalization or amnesty pursuant to the laws of the United States. [¶] At this time did you, Mr. Arevalo, discuss the immigration consequences [with] your attorney . . . ? Yes or no.
"The Defendant: I haven't-I haven't talked about immigration, no. [¶] (Defendant and counsel conferred off the record.)
"The Court: Hold on. Let the record reflect that [defense counsel] is speaking with the defendant. [¶] (Defendant and counsel conferred off the record.)
"The Defendant: Yes. Yes. Yes.
"The Court: All right. So you have discussed the immigration consequences with your attorney?
"The Defendant: Yes.
"The Court: And, [defense counsel] have you discussed the immigration consequences with your client pursuant to [Padilla versus Kentucky (2010) 559 U.S. 356]?
"[Defense counsel]: Yes. Twice, Your Honor.
"The Court: All right. Mr. Arevalo, has anyone used any force or violence upon you or anyone near or dear to you in order to get you to plead guilty today or not contest?
"The Defendant: No contest.
"The Court: But has anyone used any force or violence upon you or anyone near or dear to you in order to force you to plead guilty or no contest today?
"The Defendant: No contest.
"The Court: All right. I need you to listen to my questions. I'm not trying to trick you, but I've asked the same question twice.
"[Defense counsel]: If I may, Your Honor? "The Court: Give me just a second. Let me try.
"[Defense counsel]: All right.
"The Court: I need to make sure that you're pleading voluntarily, that no one's forcing you to do anything you don't want to do here today.
"So my question is: Has anyone used any force or violence, beaten you up or threatened you, to get you to plead guilty or no contest today?
"The Defendant: No. No.
"The Court: All right. Has anyone made any promises to you, other than what we stated here in court, to get you to plead guilty or no contest today?
"The Defendant: No.
"The Court: Have you fully discussed this case with your lawyer and all possible defenses that you might have?
"The Defendant: Yes.
"The Court: And do you have any questions at this time you wish to ask me or your attorney?
"The Defendant: No."
Defendant then pleaded no contest to counts 1 and 2 and defense counsel stipulated that there was "a factual basis for the plea contained in the police reports as provided as discovery." After finding the plea to be knowing, intelligent, voluntary, express, and entered into "with an understanding of the charges and the consequences of his plea," the trial court accepted it and found defendant guilty on counts 1 and 2. Pursuant to the plea agreement, the trial court sentenced defendant to an aggregate term of three years in state prison and dismissed the remaining counts.
B. Motion to Vacate
On March 1, 2022, defendant filed a motion to vacate his conviction pursuant to section 1473.7 supported by his declaration and certain medical records from an evaluation performed in 2020, four years after his plea, which diagnosed him with schizophrenia. Plaintiff' declared that he had been in immigration custody since February 19, 2020, and faced deportation as a result of his criminal history. He explained: "I took a plea of guilty/nolo contendere because of my inability to understand, respond or ask questions, stay on topic and, high level of distraction[.] [M]y state of mind was in a severely bad condition because of my mental illness[.] I did not understand the plea I took[.] [I]f I had meaningfully understood that I would be facing immigration consequences/mandatory deportation I would have not pleaded and [taken] my case to trial or pleaded differently to the charge at the time or I would rather [receive] a longer sentence that didn't carry mandatory exclusion that way [I] wouldn't [lose] my family. I feel the need to tell the Court to better to understand how and why I made that bad decision of taking the original plea for this case."
Plaintiff then provided these facts about his background: He was born in El Salvador in 1981. He came to the United States in 2005 when he was 24 years old and had lived here since that time. He came to the United States because he "was fleeing from all the MS[-]13 gang violence and extortion." He had been threatened, extorted, and assaulted by gang members who said they would kill him if he called the police. His biological mother was living in the United States so he decided to live with and care for her. When he arrived, he "immediately started working with a gardener cutting grass ...." But he "started hanging around with the wrong people [who] influenced [him] to make bad decisions . . . [and] get in trouble with the law." It was "extremely important for [him] to remain here in the [U]nited [S]tates because [he did not] have any family remaining in [El Salvador and] all [of his] immediate family [lived here]." He began to use street drugs which caused him to lose "all of the good things which [he] had going for [him] in [his] life and caused [him] to be more depressed and anxious than ever before."
Defendant explained that at the time of his plea, he "was in a completely distorted /foggy state of mind, coming down from the drug use and terrified of the jail environment and all the violence [he] experience[d; he] was really scared [and] everything happened so fast [he] hardly remember[ed] . . . taking th[e] deal. [He] had no idea or recollection of what was going on [at] the time of the plea. [His] memory and mindset [were] in severely bad condition due to fear of remaining in the county jail any longer, [so he] took the . . . plea at the earliest possible opportunity."
On August 16, 2022, defendant, who was now represented by counsel, filed a supplemental brief. He argued that he "lacked a contemporaneous understanding of the proceedings" which in turn prevented him from understanding the immigration consequences of his plea. Plaintiff claimed he was prejudiced because his conviction on the two charges "bar[ him from] many forms of immigration relief" and leave him "defenseless to fight his immigration case." He asserted that he would be in jeopardy if returned to El Salvador and that he would not have placed himself in that position if he had understood the immigration consequences of the plea.
On September 26, 2022, the prosecution filed an opposition to the motion, arguing that defendant had not met his burden of showing that he did not understand the consequences of his plea, since the only evidence that he presented in support of his motion was his own self-serving declaration. The prosecution then argued that even if defendant had demonstrated he did not understand the consequences of his plea, he could not show prejudice. The prosecution described the evidence against defendant as strong and cited to police reports from 2015. The prosecution elaborated that defendant had stalked and harassed his victim since November 2014 when he told her he wanted her to "'be his woman.'" He approached the victim on numerous occasions, at various locations, including her place of employment. He exposed himself to her and told her he would kidnap, rape, and kill her. The victim called the police on at least five occasions and her description of defendant's conduct was corroborated by witnesses, including coworkers.
The police reports are not part of the record on appeal.
On November 3, 2022, the trial court held a hearing on defendant's section 1473.7 motion. Defense counsel did not dispute the prosecution's description of the underlying facts or suggest that the prosecution would have "made an immigration neutral offer at the time," stating that this was "not the test." Instead, defense counsel argued that defendant had demonstrated he was not fully aware of the immigration consequences of his plea.
After the prosecution argued that the petition should be denied, the trial court made its ruling. It noted that during the change of plea, defendant stated he had discussed the immigration consequences of his plea with counsel and counsel confirmed that he had twice discussed the immigration consequences of the plea with defendant. The court also explained that it had considered defendant's "ties to the United States;" "the importance the defendant placed on avoiding deportation"; "whether the defendant had reason to believe . . . an immigration neutral negotiating disposition was possible"; and "whether there's been a reasonable showing of a reasonable probability that the defendant would have rejected the plea had the defendant correctly understood its actual or potential immigration consequences." The court also described the strong evidence against defendant, including the victim's desire to testify and corroborating evidence, observed that the prosecution had agreed to allow defendant to plead to only two of the eight counts, and concluded that the prosecution "most likely made a very reasonable offer considering the facts." After considering "all of the factors," including whether there was a reasonable probability that defendant would have rejected the plea if he understood the consequences of it, the court denied the motion.
III. DISCUSSION
A. Legal Principles
Section 1473.7, subdivision (a)(1) provides: "A person who is no longer in criminal custody may 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 conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel."
To prevail under section 1473.7, "[t]he defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error. '[P]rejudicial error . . . means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.' ([People v.] Vivar [(2021)] 11 Cal.5th [510], 529.)" (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)
"To establish prejudicial error, a defendant must demonstrate a 'reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences' [citation] and must corroborate any assertions with '"'objective evidence'"' [citation]." (Espinoza, supra, 14 Cal.5th at p. 316.) "To determine whether there is a reasonable probability a defendant would have rejected a plea offer if he had understood its immigration consequences, courts must 'consider the totality of the circumstances.' [Citation.] 'Factors particularly relevant to this inquiry include the defendant's ties to the United States, 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.' [Citations.] Also relevant are the defendant's probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. [Citation.] These factors are not exhaustive, and no single type of evidence is a prerequisite to relief." (Id. at pp. 320-321.)
"A defendant must provide '"'objective evidence'"' to corroborate factual assertions. [Citation.] Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." (Espinoza, supra, 14 Cal.5th at p. 321.)
"We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences." (Espinoza, supra, 14 Cal.4th at p. 319.)
B. Request for Remand
1. Background
Prior to briefing in this matter, defendant moved to stay the appeal and remand the matter to the trial court for a further evidentiary hearing. He based his motion on newly discovered file notes from his attorney in the plea proceedings. According to defendant, although the notes reflect counsel's advice that he "could be" deported due to his undocumented status, he was not told that the plea in this case, which resulted in convictions for crimes of moral turpitude, would "make [him] inadmissible to the United States should he attempt to gain a lawful status here."
We denied defendant's motion without prejudice. The parties then briefed and argued the merits of the appeal, including further briefing and argument on defendant's request for remand.
2. Analysis
The Attorney General concedes that we have the authority to remand for a further evidentiary hearing (citing Espinoza, supra, 14 Cal.5th at pp. 325-326 ["a remand for reconsideration and the development of the record may be advisable in other cases"]; and section 1260 [an appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances"). But the Attorney General maintains that, even if we consider the attorney notes on the plea advice, defendant cannot show prejudice because "there is no reasonable probability [defendant] would have rejected the plea."
Here, during his change of plea, defendant did not expressly state that he understood the immigration consequences of his plea. Instead, after a conference with his attorney, he stated only that he discussed the consequences with counsel without specifying which consequences he discussed or acknowledging that he would be barred from obtaining lawful status in the United States. On this record, we conclude that the trial court is in the best position to consider, in the first instance, whether the newly discovered attorney notes demonstrate that defendant meaningfully understood the immigration consequences of the plea, including its effect on his future legal status. We therefore remand for the limited purpose of allowing the trial court to reconsider defendant's section 1473.7 in the context of the attorney notes on the plea advice given.
IV. DISPOSITION
The matter is remanded to the trial court for a further evidentiary hearing on the section 1473.7 motion.
We concur: BAKER, Acting P. J. MOOR, J.