Opinion
H044813
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DENIS DEMACEDO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1263902)
Defendant Denis Demacedo challenges the trial court's denial of a motion to withdraw his no contest plea based on his attorney's failure to inform him of the specific immigration consequences of the plea. He also argues that the trial court failed to determine an adequate factual basis for the plea. Finding no prejudice resulting from any constitutionally deficient advice, and no abuse of discretion in accepting the plea, we will affirm the judgment.
I. BACKGROUND
In December 2012, defendant was charged with threatening to inflict great bodily injury or death (Pen. Code, § 422; count 1; undesignated statutory references are to the Penal Code), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 2), and violating a domestic violence restraining order (§ 166, subd. (c)(1); count 3). The criminal complaint alleged an enhancement under section 12022.1 for committing the offenses while on bail for another felony charge.
Defendant was arrested and released after posting a $150,000 bond. Ten weeks later in March 2013, he drove his car with a blood alcohol content almost three times the legal limit, striking a car and speeding away through a residential neighborhood, reaching a speed of almost 70 miles per hour before colliding with another car. The collision killed a young man, his teenage brother, and their mother, and severely injured the young man's fiancée. (People v. Demacedo (Mar. 16, 2018, A144919) [nonpub. opn.] p. 1; Cal. Rules of Court, Rule 8.1115(b)(2).) A jury found defendant guilty of three counts of second degree murder, and he was sentenced to over 47 years in prison. (Id. pp. 8, 10.)
While serving his prison sentence in the homicide case, defendant made a demand under section 1381 to be brought to trial on the 2012 charges. He was transported to Santa Clara County in January 2017 and, represented by an attorney, resolved the charges pursuant to a negotiated disposition. The prosecutor reduced count 1 to a misdemeanor, and defendant entered a no contest plea to counts 1, 2, and 3, and admitted the on-bail enhancement. The prosecutor agreed to a sentence amounting to credit for time served, and to dismiss separate charges which had resulted in the domestic violence restraining order underlying count 3. The court referred the matter to the probation department to calculate custody credits and to contact the victim. Notably, the waived referral memorandum later explained that probation was unable to contact the victim. Her phone was no longer in service, and correspondence was returned without a forwarding address.
On the date set for sentencing and represented by a new attorney, defendant moved to withdraw his plea, asserting that he had obtained asylum in 2011 and had entered the plea without understanding that the resulting conviction would adversely affect his asylum status. He argued that good cause existed to withdraw the plea because he had been unaware at the time it was entered that assault with force (count 2) and violating a domestic violence restraining order (count 3) were deportable offenses, and that his conviction for making threats (count 1) rendered him inadmissible and therefore ineligible to adjust his status to a lawful permanent resident. He also argued that his former counsel was constitutionally ineffective in failing to advise him of the specific immigration consequences of his plea.
Defendant and his former counsel submitted declarations in support of the motion. Defendant stated he had consulted an immigration lawyer soon after entering the plea, and learned he could lose his asylum status and be deported. Defendant declared he would not have entered the plea had he known that pleading to the charges would subject him to deportation and inadmissibility. Former counsel stated that he had advised defendant of the possibility of immigration consequences from his plea, but counsel did not consult an immigration attorney to identify those specific consequences nor did he attempt to negotiate an immigration neutral disposition. Neither the motion nor the declarations mentioned the second degree murders.
The motion was continued for several weeks during which time defendant wrote the trial court from county jail asking that the charges be dismissed because he was serving a 47-years-to-life sentence and knew he would die in prison. At the hearing on the motion, the court focused on that letter, asking defendant's new attorney how defendant could be prejudiced by any deficient advice, given the 47-year sentence he was serving in the other case. The court also asked counsel what charges underlay defendant's prison sentence and whether they were deportable offenses. Counsel stated that he had nothing to add on the prejudice inquiry, and did not answer the court's question regarding the other charges. The prosecutor informed the court that defendant was serving three consecutive 15 years-to-life terms for second degree murder rendering him deportable.
The court denied the motion, finding defendant had not established prejudice by clear and convincing evidence from any deficient advice of counsel in light of the immigration consequences resulting from the second-degree murder convictions. The court rejected defendant's declaration as self-serving and not credible, and gleaned from his letter that he wanted to return to prison and not spend more time on this case. The court suspended imposition of sentence and placed defendant on formal probation terminating that day, with four days credit for time served.
II. DISCUSSION
A. MOTION TO WITHDRAW THE PLEA
1. Legal Standards
"A court may permit a guilty or no contest plea to be withdrawn 'for good cause shown.' " (§ 1018; People v. Archer (2014) 230 Cal.App.4th 693.) " 'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence." (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) A plea may not be withdrawn simply because a defendant has changed his or her mind. (Ibid.) Good cause to withdraw a guilty plea under section 1018 may be shown when a defendant is unaware that a conviction for a specific offense will render him or her subject to mandatory removal. (People v. Patterson (2017) 2 Cal.5th 885, 895.) In deciding whether to grant a motion to withdraw a guilty plea based on ignorance of immigration consequences, the trial court is " 'vested with discretion to grant or to deny the motion after considering all factors necessary to bring about a just result.' " (Id. at p. 899.) The trial court may consider the defendant's state of mind at the time the plea was entered in determining whether he or she would have pleaded guilty having understood the specific immigration consequences of the plea. (Ibid.) We review the trial court's decision whether to permit a defendant to withdraw a guilty plea under section 1018 for an abuse of discretion. (Id. at p. 894.)
Trial counsel's failure to inform a defendant of clear deportation consequences—consequences that are "easily determined" from reading the relevant immigration statutes—is a basis to withdraw a guilty plea under the Sixth Amendment if the defendant has been prejudiced. (Padilla v. Kentucky (2010) 559 U.S. 356, 368-369; Strickland v. Washington (1984) 466 U.S. 668; People v. Soriano (1987) 194 Cal.App.3d 1470, 1482.) To establish prejudice, the defendant must show " 'that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty' [citation] to the charge ... which subjected him to mandatory deportation." (People v. Patterson, supra, 2 Cal.5th at p. 901.)
2. Analysis
Defendant's challenge to the trial court's denial of his motion to withdraw the plea is based on ineffective assistance of counsel. He argues that his first attorney provided constitutionally deficient advice regarding the immigration consequences of the plea, and that the deficiency prejudiced him because there is a reasonable probability he would have insisted on going to trial had he been adequately advised. Although the trial court did not make a finding that defendant's first attorney had performed deficiently, the prosecutor had noted that "none of the charges were immigration neutral," and the court proceeded to the prejudice prong of the ineffective assistance claim as if counsel's immigration advice had been constitutionally inadequate. On appeal, the Attorney General does not challenge the trial court's "assumption" that counsel's advice was constitutionally deficient. Instead he argues that the matter can and should be resolved on prejudice. We too will proceed to the prejudice prong of defendant's Sixth Amendment claim, with the understanding that an examination of the relevant portions of the Immigration and Nationality Act (8 U.S.C. §§ 1158 [asylum], 1227 [deportable aliens], 1229b [cancellation of removal], and 1182 [inadmissible aliens]) would have informed trial counsel that defendant's plea would render him inadmissible and deportable.
Defendant argues that prejudice is shown by his declaration, corroborated by his post-plea consultation with an immigration specialist and his lack of a criminal history. But defendant's criminal history shows that in March 2013, while on probation for an earlier DUI offense, defendant drove with a high blood alcohol content and caused a horrific collision that killed three people, resulting in convictions of three counts of second degree murder, three counts of gross vehicular manslaughter while intoxicated, DUI causing injury, driving with a BAC over .08 percent, hit and run, and perjury. (People v. Demacedo, supra, A144919, pp. 1-4.) Given his convictions and sentence (and the immigration consequences already resulting from that case), his criminal history is at odds with his professed concern about immigration consequences flowing from his later plea.
Defendant discounts the murder case as not being a final conviction at the time of the plea, given the then-pending appeal. But we find the argument unpersuasive, particularly in light of his concession at trial that he had committed gross vehicular manslaughter. Asylum status can be terminated rendering an alien deportable if, among other grounds, the alien is convicted of "a particularly serious crime" making him or her a danger to the community. (8 U.S.C. §§ 1158(b)(2)(A)(ii), (c)(2)(B), 1227(a)(1)(C)(i).) Even a conviction of gross vehicular manslaughter instead of second degree murder would serve as a basis to terminate asylum, and any meaningful consultation with an immigration attorney would have revealed as much. Defendant has therefore failed to show a reasonable probability that he would not have entered into the negotiated disposition had he been advised of its specific immigration consequences.
According to the opinion upholding the conviction, defendant conceded at trial that his grossly negligent driving caused the 2013 collision. He argued that he was guilty of gross vehicular manslaughter (not second degree murder) because he had not acted with conscious disregard for life. (People v. Demacedo, supra, A144919, p. 4.)
A crime is determined "particularly serious" through case-by-case adjudication (Delgado v. Holder (9th Cir. 2011) 648 F.3d 1095, 1098); the Board of Immigration Appeals has found DUI-related manslaughter convictions, and California convictions for driving under the influence involving injuries to victims, to be particularly serious crimes. (See Avendano-Hernandez v. Lynch (9th Cir. 2015) 800 F.3d 1072, 1076, 1078 [Veh. Code, § 23153, subd. (b) conviction involving head-on collision causing injuries]; Anaya-Ortiz v. Holder (9th Cir. 2010) 594 F.3d 673, 675 [Veh. Code, § 23153, subd. (b) conviction; alien drove into a house causing wall to collapse on occupant causing injuries]; see also Lopez v. Sessions (9th Cir. 2017) 706 Fed.Appx. 903, 904 [Veh. Code, § 23153, subd. (b) with priors and hit and run causing death or injury involving injury to another person]; Ursu v. INS (9th Cir. 2001) 20 Fed.Appx. 702, 705 [DUI/manslaughter conviction under Florida law].) --------
Defendant argues that the trial court applied the wrong standard of proof in denying his motion to withdraw the plea, and urges us to remand the matter for the trial court to reconsider the motion under the proper standard. Defendant moved to withdraw his plea on two grounds: (1) ignorance of the plea's immigration consequences, which must be shown by clear and convincing evidence (§ 1018); and (2) counsel's constitutionally deficient immigration advice, which must be accompanied by a showing of prejudice (i.e., a reasonable probability that, but for the deficient advice, defendant would not have entered his no contest plea to charges subjecting him to mandatory deportation). (People v. Patterson, supra, 2 Cal.5th at p. 901.) While the trial court appears to have conflated the two bases for relief by concluding that defendant had not established prejudice by clear and convincing evidence, the error is harmless in light of our own review of defendant's Sixth Amendment claim and conclusion that he failed to show prejudice even applying a lesser standard of proof.
B. FACTUAL BASIS FOR THE PLEA
Defendant argues that the trial court abused its discretion by accepting his plea "without a determination of an adequate factual basis," as required under section 1192.5. The trial court accepted defendant's plea after asking his attorney whether "there's a factual basis for the plea," to which counsel responded affirmatively. The Attorney General argues that the trial court satisfied its statutory duty by accepting defendant's stipulation to a factual basis for the plea, citing People v. Palmer (2013) 58 Cal.4th 110.
The Supreme Court explained in Palmer that "section 1192.5 requires the trial court to make an inquiry to satisfy itself that there is a factual basis for a conditional plea," and that a " 'stipulation by counsel to the plea's factual basis is consistent with the legislative purpose of the statute.' " (People v. Palmer, supra, 58 Cal.4th at p. 118.) The Palmer court embraced the People's argument "that a stipulation to a factual basis for a plea is akin to an evidentiary stipulation, the making of which is a tactical decision entrusted to trial counsel, and which is conclusive without reference to additional evidentiary support." (Id. at pp. 117, 118.) It further explained that a trial court is given wide discretion and flexibility to satisfy itself that there is a factual basis for a plea given defense concerns to which the trial court is not privy. (Id. at pp. 118-119.) The court in Palmer noted that the " 'better approach' " is for counsel to stipulate to a particular document that provides an adequate factual basis for the plea, so as to eliminate "any uncertainty regarding the existence of a factual basis." (Id. at p. 118.) But it also concluded that a trial court "may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel's advice." (Ibid.)
Defendant argues that Palmer is not controlling because it did not hold that a bare stipulation is sufficient in all cases, only that it "may, in an appropriate case, satisfy the requirements of section 1192.5." (People v Palmer, supra, 58 Cal.4th at p. 114.) He distinguishes Palmer because the defendant in that case acknowledged in the plea colloquy that he had discussed the elements of the crime and any defenses with his attorney and was satisfied with his attorney's advice. (Ibid.) But defendant fails to explain how that distinction translates here to an abuse of the trial court's discretion in finding a factual basis for his plea based on this record.
Defendant cites People v. Willard (2007) 154 Cal.App.4th 1329, in which the appellate court found a factual basis stipulation without any reference to a source document to be insufficient. But Willard predates Palmer and the Supreme Court's acknowledgment that a "bare stipulation" by counsel may suffice in an appropriate case. We conclude this is such a case. The record here includes an advisement of rights and plea form signed by defendant himself. Defendant initialed next to the paragraph stating that he had a full opportunity to discuss with his attorney the facts of the case, the elements of the charges, and any defenses he may have. He initialed next to paragraphs stating that he understood the form and the consequences of his plea, and that "there is a factual basis for my plea based on my discussions with my attorney(s) about the elements of the crime(s) and any defenses I may have." Defendant signed his name below the paragraph stating, "By putting my initials on this form, I am indicating I understand and agree with what is stated in each item I have initialed." An interpreter also signed the form, certifying to "truly translat[ing] this form to the defendant in Portuguese," and to "defendant stat[ing] []he understood the contents of the form." During the change of plea colloquy, the trial court asked defendant if the initials and signature on the form were his, whether the Portuguese interpreter had interpreted everything he had signed and initialed, and whether he had understood the interpreter. Defendant answered yes to each question. The trial court asked defendant whether he had any questions about anything on the form or anything about the plea agreement for either the court or his attorney. Defendant answered "No. No questions."
Nothing in the record demonstrates that counsel's stipulation was inadequate, or that the trial court abused its discretion by accepting it. Indeed, defendant does not argue that he did not understand the plea, that his plea was not voluntary, or that he entered the plea while protesting his innocence.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Bamattre-Manoukian, J.