Opinion
E081682
12-04-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS DELEON, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Vincent P. LaPietra, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV019184. Katrina West, Judge. Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Vincent P. LaPietra, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendant Juan Carlos DeLeon appeals from the trial court's order denying his motions to vacate his past conviction and set aside his guilty plea under Penal Codesections 1016.5 and 1473.7. For the reasons set forth post, we affirm.
All statutory references are to the Penal Code unless otherwise specified.
STATEMENT OF THE CASE
On February 24, 2000, the People filed an amended complaint charging defendant with forgery under section 476 (count 1), petty theft with a prior conviction under section 666 (count 2), perjury under section 118 (count 3), and false personation under section 529 (count 4). The People also alleged an on-bail enhancement for counts 3 and 4 under section 12022.1, and prior prison convictions for counts 1 and 2 under section 667.5, subdivision (b).
On March 27, 2000, defendant entered into a plea agreement. Defendant pled guilty to perjury for the low term of 16 months in state prison, in exchange for a dismissal of the balance of the complaint. At the sentencing hearing on June 12, 2000, the trial court sentenced defendant to 16 months in state prison according to the terms of the plea agreement. The court then realized that 16 months for perjury was an unauthorized sentence and continued the sentencing hearing.
On September 13, 2000, the trial court granted defendant's motion to withdraw his guilty plea. The prosecutor then amended the complaint to add another count of forgery under section 476 (count 5). Thereafter, defendant pled guilty to count 5, and the court dismissed count 3. The court sentenced defendant to 16 months in state prison.
On May 19, 2021, defendant filed a motion to vacate his past conviction and set aside his guilty plea under section 1473.7. On March 28, 2022, defendant filed a motion to vacate his past conviction and set aside his guilty plea under sections 1473.7 and 1016.5.
On May 16, 2023, the trial court filed its ruling on submitted matter. In the ruling, the court denied both motions.
On July 10, 2023, defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant claims that the trial court erred in denying his motions to vacate his conviction under sections 1016.5 and 1473.7, because defendant did not receive the statutory immigration advisement when he renegotiated the plea agreement to forgery. For the reasons set forth post, we affirm.
A. PROCEDURAL BACKGROUND
At the arraignment on December 14, 1999, the trial court told defendant that if defendant were not a citizen, "a conviction of the offense with which he [] is charge[d] may lead [to] deportation, exclusion from admission to this country, or denial of naturalization." Thereafter, when defendant initially pled guilty to perjury on March 27, 2000, defendant signed a declaration that stated that he "could be" deported, excluded from admission, or denied naturalization based on the conviction. At the change of plea hearing, defendant did not have the assistance of a Spanish language interpreter and certified that he "can read and understand English."
At a hearing on September 13, 2000, defendant withdrew his guilty plea to perjury and negotiated a new plea agreement to plead guilty to forgery. Again, defendant did not have the assistance of an interpreter. Defendant did not sign a new change of plea form. The minute order from the hearing stated that defendant "waive[d] any defects," waived the right to a referral to the probation department, and requested immediate sentencing.
Almost 21 years later, on May 19, 2021, defendant filed a motion to set aside his guilty plea under section 1473.7. Defendant claimed that when he pled guilty to forgery, he was not aware it would result in adverse immigration consequences because he was not fluent in English and did not have the assistance of a Spanish language interpreter. He claimed that he would have rejected the plea offer had he known the immigration consequences. On March 28, 2022, defendant filed a motion to vacate his past conviction and set aside his guilty plea under sections 1473.7 and 1016.5.
The People opposed both motions. As to section 1016.5, the People argued that defendant failed to file his motion with reasonable due diligence. As to section 1473.7, the People argued that there was no error because defendant understood English. Moreover, as to both motions, the People claimed that defendant suffered no prejudice because the plea agreement led to a lenient sentence and there was no reason for defendant to think an alternative plea was available. Prior to defendant's conviction, he had a juvenile court adjudication for murder, a commitment to the California Youth Authority, and a pending felony drug possession case in Orange County. Defendant was later convicted of misdemeanor under the influence in 2004, felon in possession of a firearm in 2006, and possession of a controlled substance while armed with a firearm in 2006.
At the hearing on the motions on April 14, 2023, the trial court took judicial notice of its file. Defendant testified that he was born in 1968, entered the United States in 1985, and married in 1998. In 2009, defendant was deported but he reentered the United States a month later. Defendant denied knowing how to read and understand English, and testified that he could speak "[v]ery little. A word here and there." According to defendant, he understood that he was only to serve eight months in prison pursuant to the plea agreement. Defendant "wanted [] to get out as soon as possible" because his wife was pregnant at the time of his prosecution. He did not sign a new change of plea form when he pled guilty to forgery. Defendant testified that his attorney never explored his immigration background and never asked if he was a United States citizen.
Sergeant Ryan Wilson testified that one night in 2006, he pulled defendant's truck over. During this traffic stop, he and defendant spoke to each other in English, and defendant showed no signs of any inability to communicate in English.
David Topping, an investigator with the district attorney's office testified that he subpoenaed defendant's file from the California Department of Corrections and Rehabilitation. The file included a 2003 Parolee Disability Review Sheet wherein defendant checked the "'[n]o'" box for the "'Foreign Language Speaking'" section, and a transcribed document dated October 4, 2021, regarding a hearing which was conducted in the English language.
Veronica DeLeon, defendant's wife, testified that after defendant's conviction, she spoke to several attorneys about adjusting defendant's immigration status. She provided the names of attorneys and the approximate years when she consulted with them.
During closing argument, defense counsel argued that defendant was never advised of the immigration consequences of a forgery conviction and did not have the assistance of a Spanish interpreter. Defense counsel then argued that had defendant known about the consequences, he would have reconsidered the plea agreement. As to the section 1016.5 motion, defense counsel argued that defendant filed the motion with reasonable diligence because defendant's wife consulted multiple attorneys after his conviction to address defendant's immigration status.
The prosecutor argued that defendant was not credible and there was no language barrier. Moreover, the prosecutor argued that defendant's priority during the plea negotiations was to get a 16-month sentence so he would only serve eight months of actual custody. Moreover, because defendant was not a lawful permanent resident, he knew in 2001 that there were immigration consequences and 16 months was the lowest sentence he could receive. The prosecution also argued that defendant should have filed the motion in 2001, when he first learned there were immigration consequences.
The trial court took the matter under submission and issued its written ruling on May 16, 2023. The court found that defendant failed to file his section 1016.5 motion with reasonable due diligence because he waited 21 years after his conviction to file it. Moreover, the court found that defendant was not credible because he failed to corroborate either his or his wife's testimony about consulting with attorneys with records showing that such consultations occurred.
For the section 1473.7 motion, the court found defendant failed to corroborate his assertion that his attorneys never explained the adverse immigration consequences of his charged offenses. The court found defendant's claim that he did not understand English was not credible.
Furthermore, the court found that defendant's assertion of prejudice for both motions was not credible. The court noted voluminous, contemporaneous evidence of defendant understanding English in various settings, and he also answered questions at the hearing before they were interpreted for him. The court found defendant's asserted language barrier "appeared feigned at times" and "seriously undermine[d] every assertion he has made." The court went on to find that in light of defendant's future arrests, convictions, deportation, and unlawful reentry into the United States, "remaining lawfully in the [United States] was never a priority for him, despite his family ties." The court noted that in defendant's case, he faced nine years in prison, the evidence he was guilty was strong because he confessed his crimes to investigators, and he never addressed the hardship he and his family would face if he had rejected the plea agreement and continued to litigate his case. Moreover, the court found that there was no alternative immigration-safe plea because of defendant's juvenile court adjudication for murder and two prior grand theft convictions, and the unlikelihood that the prosecutor would have agreed to allow defendant to plead guilty to a crime that did not involve fraud and would not require him to serve at least one year in custody.
Under section 1016.5, subdivision (a), a trial court is required to administer the following advisement on the record before accepting a plea of guilty or nolo contendere from a 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 . . . or denial of naturalization pursuant to the laws of the United States." If the court fails to advise the defendant in accordance with section 1016.5, a defendant may move to vacate the judgment and withdraw the plea of guilty or nolo contendere and enter a plea of not guilty. (§ 1016.5, subd. (a).)
On appeal, we review the trial court's denial of the motion to vacate for abuse of discretion (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio)), reversing only where the court has exercised its "discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice." (People v. Limon (2009) 179 Cal.App.4th 1514, 1518 (Limon).)
In order "[t]o prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (People v. Totari (2002) 28 Cal.4th 876, 884; Zamudio, supra, 23 Cal.4th at pp. 199-200.) To show prejudice, a defendant must demonstrate a reasonable probability that he would not have pleaded guilty or nolo contendere if he had been properly advised. (Zamudio, at pp. 209210.)
Although section 1016.5 has no explicit time bar in the statute, "[a] postjudgment motion to change a plea must be 'seasonably made.' [Citation.] Thus, the trial court may properly consider the defendant's delay in making his application, and if 'considerable time' has elapsed between the guilty plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay." (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618 (Castaneda); People v. Kim (2009) 45 Cal.4th 1078, 1097-1098 (Kim) [acknowledging a diligence requirement for a motion to vacate a plea under § 1016.5].)
The California Supreme Court has explained that "[t]he diligence requirement is not some abstract technical obstacle placed randomly before litigants seeking relief, but instead reflects the balance between the state's interest in the finality of decided cases and its interest in providing a reasonable avenue of relief for those whose rights have allegedly been violated." (Kim, supra, 45 Cal.4th at p. 1097.) In Castaneda, supra, 37 Cal.App.4th 1612, an appellate court observed that the "obvious" reason for requiring a showing of due diligence is to avoid the "[substantial prejudice to the People [that] may result if the case must proceed to trial after a long delay." (Id. at p. 1618.) To satisfy the burden of showing due diligence when seeking to vacate a plea after a substantial delay, the defendant must "'aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence, is insufficient.'" (Kim, at p. 1097.)
In this case, we agree with the trial court that defendant has failed to demonstrate due diligence. When defendant first pled guilty to perjury in 2000, he was given the immigration advisement. In 2001, defendant received a notice to appear from immigration officials, then received the final removal order in 2009. Defendant, however, did not file his section 1016.5 motion until 2022-22 years after pleading guilty, 21 years after receiving the notice to appear, and 13 years after the deportation order.
Notwithstanding the 22-year gap between defendant's conviction and the filing of his motion, defendant contends that he has a valid excuse for the delay because his family spoke to multiple attorneys during the years, and the attorneys stated they could not help his immigration status. The trial court, however, found this argument to be without merit.
In its written ruling, the trial court stated that defendant failed to meet his burden of showing "unreasonable delay" based on these facts:
"It was not until 2022 after filing the Motion pursuant to section 1473.7, that the defendant finally moved to amend the pleading to seek relief pursuant to section 1016.5. This was approximately 21 years after his conviction, and 13 years after he was deported. On March 28, 2022, the defendant filed a pleading, but not a declaration, in which he offers that beginning in 2001 he and his wife contacted and/or retained a number of attorneys to 'help with his conviction' but each attorney ultimately turned down his case. On April 14, 2023, [defendant's] wife testified regarding the attorneys she consulted with or without the defendant, for the purposes of helping [defendant] with his immigration status. [Defendant] neglected to explain why he did not continue searching for an attorney until he found someone who would take his case. Moreover, in spite of recalling the names of many or all of the consulted attorneys, [defendant] failed to provide any corroboration to show he consulted a single attorney, such as cancelled checks for consultation fees, bank records showing payment, contemporaneous calendars or diaries showing appointment dates, documentation from the offices, declarations from anyone at the offices or the attorneys, or anything else that might show that he sought legal representation during those 21 years."
On appeal, we cannot say that the trial court abused its discretion in making this ruling. It's decision is not "arbitrary, capricious, or patently absurd," and the result did not result in a "miscarriage of justice." (Limon, supra, 179 Cal.App.4th at p. 1518.)
Based on the above, we conclude, as did the trial court, that defendant failed to establish due diligence in seeking relief under section 1016.5, 21 years after he entered his plea. Accordingly, we find no abuse of the trial court's discretion in denying defendant's untimely motion to vacate his plea.
Even if we found that defendant's motion was timely, the trial court properly denied the motion because defendant failed to make the required showing of prejudice, as will be discussed post.
Section 1473.7 authorizes a motion to vacate a conviction on the ground 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 conviction or sentence." (§ 1473.7, subd. (a)(1).) The moving party must establish by a preponderance of the evidence both lack of understanding of the immigration consequences of the conviction and prejudice. (§ 1473.7, subd. (e)(1).)
On appeal from a section 1473.7 ruling, appellate courts engage in "independent review." (People v. Vivar (2021) 11 Cal.5th 510, 525, 527 (Vivar).) Under that standard, we exercise independent judgment "'to determine whether the facts satisfy the rule of law.'" (Ibid.) While we do not defer to factual findings drawn "entirely from written declarations and other documents" reviewed by the trial court on a "cold record," we do extend "particular deference to factual findings based on the trial court's personal observations of witnesses." (Id. at pp. 527-528.) We "may not simply second-guess factual findings that are based on the trial court's own observations." (Id. at p. 527.)
In this case, we need not determine whether defendant "did not meaningfully understand the immigration consequences of his plea" (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza)) because defendant failed to establish prejudice.
To demonstrate prejudice, a defendant must show that it is reasonably probable he would not have pled no contest if properly advised. (Vivar, supra, 11 Cal.5th at pp. 528529.) When determining whether a defendant has shown a reasonable probability that he would not have entered the plea if properly advised, appellate courts consider the totality of the circumstances, which requires a case-by-case examination of the record. (Espinoza, supra, 14 Cal.5th at p. 325, citing Vivar, at pp. 529-530.) "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 immigrationneutral negotiated disposition was possible." (Vivar, at pp. 529-530.) A "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 [are also relevant factors]." (Espinoza, at p. 320.) We look to the contemporaneous evidence, at or near the time defendant entered into the plea agreement, to substantiate his preferences. (People v. Mejia (2019) 36 Cal.App.5th 859, 872; Vivar, at p. 530.)
Here, after discussing the facts of this case at length, the trial court stated: "As to both sections 1016.5 and 1473.7 [defendant] failed to prove by a preponderance of the evidence that he was prejudiced because he did not understand English, or because his attorney did not explain the adverse consequences of the plea. He failed to prove that legally remaining in the country was a priority for him when he pled and that if he had understood the adverse immigration consequences of the plea that he would not have pled. He was unable to prove there was an immigration-safe plea he probably could have negotiated if he had understood the adverse immigration consequences of the plea. He failed to prove he would have risked going to trial if he had understood the immigration consequences of the plea."
When we look at the totality of the circumstances in this case, we agree with the trial court that defendant failed to establish prejudice.
First, defendant has failed to show that the charges in this case would have allowed an immigration-neutral plea agreement that the People and court would have accepted. Although defendant contends that he could have pled to burglary or theft by false presentences, he presented no evidence to indicate that the People would have agreed to this plea. Speculation is not evidence. (People v. Davis (2013) 57 Cal.4th 353, 360.) Moreover, we cannot simply presume that a trial court would automatically approve a plea bargain negotiated between the prosecutor and the defense. (In re Alvernaz (1992) 2 Cal.4th 924, 941 (Alvernaz).) In Alvernaz, the California Supreme Court has stated that "[i]n exercising their discretion to approve or reject proposed plea bargains, trial courts are charged with the protection and promotion of the public's interest in vigorous prosecution of the accused, imposition of appropriate punishment, and protection of victims of crimes. (See People v. Cardoza (1984) 161 Cal.App.3d 40, 43.)" (Alvernaz, at p. 941.)
Moreover, defendant failed to present a colorable defense to the charges that carried adverse immigration consequences. In this case, defendant faced four felony counts based on two investigations wherein he cashed a false check and tried to obtain a driver's license with someone else's identity. The prosecution's case was strong because defendant admitted guilt on some charges to the investigators. Defendant failed to proffer any defense to the charged offenses.
Additionally, the contemporaneous evidence shows defendant's priority in entering the plea agreement was to obtain a shorter sentence, not to avoid negative immigration consequences. The plain terms of defendant's rejected plea offer, which he made at his sentencing hearing, did not contain any immigration-neutral language. Further, there is nothing in the record demonstrating defendant had any intention that his plea offer address his immigration status. To the contrary, the record shows that as charged, defendant faced over nine years of imprisonment and removal. The plea agreement, however, guaranteed that he would be sentenced to 16 months-and that he would be released from custody after eight months (for every six months of actual custody, inmates receive an additional six months of conduct credit under section 2933, subdivision (b)). Defendant even admitted that since his wife was pregnant at the time of his conviction, "all I wanted was to get out as soon as possible."
Furthermore, defendant's reaction to the immigration advisement at the arraignment showed that he did not prioritize his immigration status. At the arraignment, the trial court told defendant a conviction for forgery could cause adverse immigration consequences. Notwithstanding, defendant never asked defense counsel or the trial court any questions about the potential consequences on his immigration status when he renegotiated his plea agreement. At that time, as noted above, defendant's only concern was to serve the minimal time because his wife was pregnant. "These are not the actions of a person for whom legal immigration status is a priority." (People v. Diaz (2022)76 Cal.App.5th 102, 116.)
Defendant's actions after his forgery conviction are also telling. Defendant received the notice to appear in immigration court just 15 months after his conviction. Had he been concerned about his immigration status at that time, he would have at least tried to contact defense counsel and question the effect of his guilty plea on his immigration status. Defendant, however, never contacted his defense counsel at that time, when he was deported in 2010, or when he reentered the United States.
Notwithstanding, defendant cites to Espinoza in support of his argument. Although personal attachments to the United States, such as family, can evidence a defendant's desire to vacate his previous plea due to a lack of understanding immigration consequences, defendant's reliance on Espinoza is unavailing because this case is factually distinguishable.
In Espinoza, the defendant moved from Mexico to California when he was 13 years old in 1981. (Espinoza, supra, 14 Cal.5th at p. 317.) Five years later, when the defendant was 18 years old, he became a lawful permanent resident. The defendant married at the age of 22. (Ibid.) The defendant and his wife had six children; the wife and children are citizens of the United States and have always resided in California. (Ibid.) The defendant was the main financial provider of his family and also the primary caregiver to his parents. The defendant's "elderly parents, eight siblings, grandchildren, and sons-in-law also live in the United States and are either United States citizens or lawful permanent residents." (Id. at pp. 317-318.)
At the time the defendant in Espinoza entered his plea in 2003, he was 35 years old and had lived in California for 23 years. (Espinoza, supra, 14 Cal.5th at p. 322.) Moreover, after the defendant was released from custody, "rather than living in hiding, Espinoza started his own business, joined community organizations, and became well known in his local community." (Id. at p. 320.) In 2015, 12 years after his guilty plea, the defendant first learned about the immigration consequences of his plea when he left the country for a trip and, upon his return to the United States, immigration officials questioned him and seized his permanent residence card. (Id. at p. 319.) The court noted that the defendant "took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of [the] United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status." (Id. at p. 320.)
Based on these facts, the California Supreme Court held that "Espinoza's deep and long-standing ties to the United States, along with those to his family and community, support the conclusion that immigration concerns would have been paramount to him at the time of his plea." (Espinoza, supra, 14 Cal.5th at p. 325.) The court then stated, "[i]n addition, Espinoza's lack of criminal history at the time of his plea and the immigration attorney's declaration identifying alternative immigration-safe dispositions suggest that he had reason to expect or hope for a different plea agreement without immigration consequences." (Ibid.) The court found it "significant" that the Attorney General agreed that relief should be granted because "it suggests that any remand for further development of the record will serve only to delay the relief to which both parties now agree Espinoza is entitled." (Ibid.)
The facts in this case are readily distinguishable from the facts in Espinoza. First, defendant, who was not a lawful permanent, had no reason to disregard the advisement in the change of plea form. As provided ante, the defendant in Espinoza was a lawful permanent resident. (People v. Lopez (2022) 83 Cal.App.5th 698, 706, 712, 716 [defendant, a lawful permanent resident, incorrectly assumed that his status protected him from immigration consequences].)
Second, defendant did nothing that reflected postconviction ignorance of his immigration status. In Espinoza, the defendant "took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status." (Espinoza, supra, 14 Cal.5th at p. 320.) Moreover, unlike Espinoza who learned about his immigration consequences "more than a decade after his plea" (id. at p. 324), defendant learned about his immigration consequences just 15 months after his conviction. Defendant, however, never contacted defense counsel to discuss what was happening or what he could do at that point.
Third, unlike the facts in Espinoza, no immigration attorney testified that there were immigration-safe alternatives that could have been pursued during plea negotiations. Defendant offers no contemporaneous evidence indicating it was possible for him to receive an immigration-neutral plea under the circumstances." (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1136 [The defendant failed "to identify any 'immigration-neutral disposition to which the prosecutor was reasonably likely to agree.'"]; People v. Olvera (2018) 24 Cal.App.5th 1112, 1118 [The defendant did not offer an expert declaration opining that alternative, nondeportable dispositions would have been available and acceptable by the prosecutor.]; People v. Bautista (2004) 115 Cal.App.4th 229, 239-240 &fns. 7-8 [The defendant provided the court an affidavit from an attorney with extensive experience representing immigrants in criminal court, who opined that the defendant's plea counsel provided prejudicial ineffective assistance of counsel by failing to attempt to negotiate a plea to a nondeportable offense.]; People v. Camacho (2019) 32 Cal.App.5th 998, 1009 ["[Defendant's claims of error were supported by his former attorney's undisputed testimony . . . ."]; Vivar, supra, 11 Cal.5th at pp. 531-532 [The defendant provided an "uncontradicted declaration from [an] immigration expert [who wrote that the defendant] could [have] entered . . . a plea without subjecting himself to mandatory deportation," and the defendant offered evidence he had initially been offered a plea agreement that would have completely avoided any immigration consequences.].)
Moreover, because defendant had suffered a juvenile adjudication for murder, and the strong evidence of guilt in all charged offences, there is no evidence in the record that such alternatives were available to defendant. Without any evidence to show that an immigration-neutral disposition was available, let alone offered, we cannot conclude that it is reasonably probable that, even if he had been properly advised, defendant would have rejected the plea offer with the expectation that he might negotiate an immigrationneutral plea or go to trial.
Fourth, unlike Espinoza, the Attorney General has not agreed that defendant is entitled to relief in this case. The Supreme Court, in making its ruling in Espinoza, found the Attorney General's concession to be "significant." (Espinoza, supra, 14 Cal.5th at p. 325.)
Therefore, we find defendant's reliance on Espinoza to be unavailing, and find that defendant has failed to establish prejudice.
In sum, based on the totality of the circumstances as discussed ante, we conclude that the trial court did not err in denying defendant's motions to vacate his plea.
DISPOSITION
The trial court's order is affirmed.
We concur: MILLER J., FIELDS J.