Opinion
B327670
05-06-2024
THE PEOPLE, Plaintiff and Respondent, v. RAMIRO ESCALERA, Defendant and Appellant.
Ernenwein &Mathes, Robert Ernenwein and Michelle Mathes; James M. Crawford for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA103348, Laura L. Laesecke, Judge. Affirmed.
Ernenwein &Mathes, Robert Ernenwein and Michelle Mathes; James M. Crawford for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General for Plaintiff and Respondent.
MOOR, J.
Ramiro Escalera appeals the trial court's order denying his motion to vacate, under Penal Code section 1473.7, subdivision (a)(1), his conviction of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). Escalera pleaded no contest, and the trial court sentenced him to five years of formal probation with the condition that Escalera be released to a residential drug treatment program and complete a minimum of 365 days in the program. The condition of 365 days in treatment qualified Escalera's offense as an aggravated felony and made him subject to deportation and ineligible for cancellation of removal. Escalera's conviction was independently rendered an aggravated felony because he was credited for 410 days served in county jail.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Escalera argues that his conviction is legally invalid due to prejudicial error that damaged his ability to meaningfully understand, defend against, and knowingly accept the actual or potential adverse immigration consequences of his conviction and sentence. He further contends that defense counsel in the underlying criminal action rendered ineffective assistance.
We affirm the trial court's order.
FACTS AND PROCEDURAL BACKGROUND
Conviction
According to a probation report, in January 2016 Escalera accused his neighbor, James McGee, of having a sexual relationship with Escalera's girlfriend, and he attacked McGee with an axe. McGee blocked the axe with his forearm and suffered a laceration. McGee knocked the axe to the ground, subdued Escalera, and called the police. When police arrived, McGee identified Escalera as the assailant. In an interview with police, Escalera denied striking McGee with the axe, but said that he heard voices telling him to kill McGee. Escalera told an officer that he would kill McGee because he was good-looking. Escalera also said that the officer should be careful because police would not know when it would happen.
The People filed a felony complaint against Escalera alleging that he committed assault with a deadly weapon in violation of section 245, subdivision (a)(1), which is a strike offense under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The complaint further alleged that Escalera had committed prior felonies and had not remained free of custody for a five-year period.
In August 2016, Escalera pleaded no contest to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), a non-strike offense, and admitted allegations that he had been convicted of prior felonies and had not remained out of prison custody for a period of five years. At the plea colloquy, the prosecutor advised Escalera, "If you are not a United States citizen, your conviction in this case will result in your deportation, exclusion from the United States, and denial of naturalization." (Italics added.) Escalera stated that he understood. After Escalera pleaded no contest, the court asked defense counsel if she had the opportunity to confer with Escalera to determine whether he was a United States citizen and discuss any immigration consequences of the plea with him. Counsel stated, "We discussed that before, yes."
The trial court placed Escalera on five years of formal probation with terms and conditions, including that Escalera would be released to a substance abuse program and was required to complete at least 365 days in the program or face a prison sentence. The court awarded 410 days of custody credit, and imposed various fines and fees.
Section 1473.7 Motion
In September 2022, Escalera moved to withdraw his plea. He first argued that the trial court failed to give the correct statutory advisement-Escalera was told that he would suffer adverse immigration consequences, not that he might, as section 1016.5 requires. Escalera further argued that the conviction was legally invalid under section 1473.7: (1) counsel did not specifically tell him that he was pleading to an aggravated felony that would bar him from nearly all relief from deportation; (2) counsel failed to defend against adverse immigration consequences by engaging in creative plea bargaining, including a partial waiving of custody credits and a treatment program of 364 days; and (3) Escalera did not subjectively understand the adverse immigration consequences of his plea due to his compromised mental state and lack of legal knowledge.
The motion included a sentence stating that "the issue is whether Mr. Escalera received ineffective assistance of counsel under his Sixth Amendment rights," but the argument was not developed in the motion, and counsel specifically disavowed the argument at the hearing on the matter. (Italics in original.)
As relevant here, attached to the motion were: the declaration of Escalera's immigration attorney Tom D. Myung; the declaration of immigration law expert Matthew Henry Springmeyer; the declaration of counsel Michelle A. Mathes; Escalera's declaration; a copy of Escalera's Permanent Resident card; a letter dated September 13, 2022, from Dr. George Blair, stating that Escalera was under his psychiatric care and compliant with all medications; copies of Escalera's current prescriptions; a transcript of Escalera's plea colloquy and sentencing hearing; the Public Defender's file for Escalera's criminal case; a 2016 psychiatric evaluation of Escalera by Dr. Phani M. Tumu; and a 2018 psychiatric evaluation of Escalera by Dr. Steven Lazrove and Dr. Michael Lisiak.
In October 2022, Escalera filed the declaration of former public defender Bella Dilworth, who represented him in the underlying criminal matter, in support of his motion to vacate. In her declaration, Dilworth averred that at the time of the plea she would not have known that a court order of 365 days in residential treatment would render Escalera's conviction an aggravated felony. Dilworth did not know that the plea would make Escalera ineligible for cancellation of removal. Dilworth's practice was to ask every client about their immigration status and determine how to proceed based on the client's concerns. If a client's priority was avoiding adverse immigration consequences, it would be reflected in her notes and any discussions regarding immigration consequences would be memorialized in detail. If a client expressed that adverse immigration consequences were a priority and Dilworth was unaware of the consequences of a charge, she would consult the Public Defender's immigration unit and include the communication in her notes. Dilworth had no notes concerning Escalera's immigration status prior to his no contest plea. Based on the foregoing facts, Dilworth did not believe that Escalera would have known that he was pleading no contest to an aggravated felony that would bar cancellation of removal.
Section 1473.7 Hearing In October 2022, the court held a hearing on the matter.
Documents Marked for Identification
Escalera marked for identification his criminal history record produced in response to an FBI request, which reflected an arrest on November 5, 2013 charging him as a deportable alien, and February 2, 2015 arrest, charging alien removal (8 U.S.C. §§ 212 &237).
The prosecution marked for identification a notice to appear issued by immigration authorities on December 9, 2013, stating that Escalera was subject to removal because he violated a May 30, 2007 protective order.
A summary of Escalera's criminal history that was marked for identification reflected seventeen separate incidents spanning over 25 years, from 1990 to 2016, each resulting in his arrest and/or conviction. He suffered convictions for "speed contest" (Veh. Code, § 23109); hit and run (Veh. Code, § 20002, subd. (a)); unauthorized access to a computer for fraud (§ 502, subd. (c)(1)) and false use of documents (Veh. Code, § 4463, subd. (a)(2)); DUI (Veh. Code, § 23152, subd. (b)), four times in separate cases; disorderly under the influence of alcohol (§ 647, subd. (f)), three times in separate cases; driving with a suspended license (Veh. Code, § 14601), two times in separate cases; disturbing the peace (§ 415); violation of a court order to protect from harassment and acts of violence (§ 273.6, subd. (a)) and trespass (§ 602.5, subd. (b)); second degree burglary (§ 459); and assault with a deadly weapon (§ 245, subd. (a)(4)). He suffered numerous other arrests, not resulting in convictions, and violated probation several times. He served jail sentences and state prison sentences.
A May 18, 2011 minute order marked for identification reflected that prior to entering the no contest plea in connection with his conviction for second degree burglary, Escalera was advised: "If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.)
Testimony
Attorney Tom Myung testified that he became Escalera's immigration attorney when Escalera was referred to deportation proceedings in 2013, after Escalera violated a 2007 protective order. Escalera's deportation proceedings were still pending. Myung maintained contact with Escalera throughout the proceedings. Myung filed for cancellation of removal on Escalera's behalf. The application remained pending. In Myung's professional opinion, none of Escalera's prior convictions would currently prevent him from qualifying for cancellation of removal, but because his 2016 conviction was for an aggravated felony, Escalera would be disqualified from relief. Myung explained that a violation of section 245, subdivision (a)(4), is a crime of violence under the Immigration and Nationality Act. A crime of violence with a sentence including incarceration of one year or greater is an aggravated felony that bars almost all relief from deportation. Incarceration is defined to include one or more years in a program where the person's liberty is restricted. The court asked Myung whether Escalera's 2010 arrest for residential burglary with a person present was currently an aggravated felony. Myung stated that it was not. Myung became aware of Escalera's 2016 conviction under section 245, subdivision (a)(4) and the accompanying sentence after Escalera entered into the plea.
Myung cited to Rendon v. Holder (9th Cir. 2014) 764 F.3d 1077, as precedent holding that first degree residential burglary with a person present is not a crime of violence. Myung was not asked whether first degree residential burglary qualified as an aggravated felony at the time Escalera was charged, nor was he asked whether he had ever explained to Escalera that some convictions are aggravated felonies that preclude cancellation of removal. Escalera was ultimately convicted of second degree burglary. First degree residential burglary was categorically a crime of violence and an aggravated felony at the time that Escalera was charged with the offense in 2010, and it was still a crime of violence and an aggravated felony when he retained immigration counsel in 2013. (U.S. v. Ramos-Medina (9th Cir. 2013) 706 F.3d 932, 936-937.)
Attorney Mathew Springmeyer testified as an immigration law expert. Springmeyer concurred with Myung's assessment that Escalera's conviction for violating section 245, subdivision (a)(4) and the court's order of 365 days in a residential drug abuse program rendered him ineligible for cancellation of removal. None of Escalera's other convictions were for aggravated felonies that would currently bar such relief. Springmeyer reviewed the public defender's notes and saw no indication that she advised Escalera he was pleading to an aggravated felony that would result in mandatory deportation. Although the notice to appear in Escalera's case did not refer to the 2016 conviction, the conviction impacted Escalera's ability to obtain relief from deportation through cancellation of removal. Escalera's application for cancellation of removal had not yet been denied, but the relief would not be available if he remained convicted of an aggravated felony. In Springmeyer's opinion, Escalera would currently be eligible for cancellation of removal if he was not convicted of an aggravated felony due to his length of time in the country, mental health issues for which he was receiving treatment, and hardship to himself and his family members who were in the United States. Escalera applied for cancellation of removal approximately one year before the section 1473.7 hearing.
Neither of the immigration attorneys who testified on Escalera's behalf was asked whether there were other aspects of Escalera's sentence that barred him from cancellation of removal. The fact that Escalera's 410 days of custody credit would also disqualify Escalera from that relief was discussed during argument in response to the trial court's questions to defense counsel.
Attorney Bella Dilworth testified that she represented Escalera in the underlying criminal matter. Dilworth had no specific recollection of Escalera's case, but reviewed the case file that she had been provided. Dilworth did not independently recall her conversation with the court during the plea colloquy regarding immigration consequences. Dilworth testified that in 2016 she would have understood that a plea to a violation of section 245, subdivision (a)(4) would render Escalera deportable. She did not know whether she would have been aware that deportation would be mandatory. At the time, she would not have understood that 365 days in a substance abuse program would constitute a "confinement" that would qualify a violation of section 245, subdivision (a)(4) as an aggravated felony. Dilworth did not recall if she consulted with the public defender's immigration office regarding Escalera's case. It was Dilworth's practice to determine her client's immigration status and priorities and provide advice on the basis of their priorities. Escalera was initially charged with a strike, which would have been a consideration in the plea. Dilworth did not recall advising Escalera he would be convicted of an aggravated felony that would result in mandatory deportation. The disposition Escalera received was very favorable to him; Dilworth would have had to bargain with the prosecution to obtain it. At that time, it would have been difficult to negotiate an immigration-neutral disposition. The view of the district attorneys was that if a citizen could not obtain a particular disposition a non-citizen should not, either. Trying to negotiate a plea bargain for the purpose of avoiding adverse immigration consequences could result in a less favorable agreement for a defendant.
Escalera testified that he was born in Mexico in 1972. His mother, two brothers, and sister were United States citizens. Escalera was a legal permanent resident, and had been since 1987. He was approximately six months old when he came to the United States. Escalera had no memory of Mexico and had never been there. He had no family or friends in Mexico. Escalera suffered from mental illness. At the time of the plea, he was in a government assistance program that provided him mental health care.
Escalera also testified regarding his circumstances at the time of the section 1473.7 hearing, but we limit our discussion to the circumstances that were contemporaneous with his plea, as the issue presented involves Escalera's decision to plead no contest.
Escalera recalled meeting with Dilworth and discussing the immigration consequences of the plea. Dilworth discussed the topic with him generally: "Like you can be deported and stuff like that." When asked what he expected to happen to him as a result of the plea, Escalera answered, "Get deported, I guess." Defense counsel then asked, "[D]id you think you were going to be permanently barred from the United States?" Escalera answered, "Yes." He later testified, "like all of the time that I got in trouble immigration comes in it; so I wasn't worried about it kind of because it can be repaired." Defense counsel then asked, "What do you mean by that?" Escalera answered, "Stopping the cancellation." Escalera believed he could hire an attorney and obtain relief. If he had known at the time of the plea that he would be deported and permanently barred from the United States he would not have entered the plea and would have instead gone to trial. Escalera had been incarcerated prior to the plea. He had an immigration attorney at the time of the plea, who he informed of his criminal background. Escalera understood that he was in trouble with immigration due to an incident involving domestic violence, but he nonetheless committed burglary, which he understood was a crime. He knew that he would be deported, but he thought it would be "repairable." After the plea, Escalera was placed in a treatment program but violated his probation and was incarcerated again. Escalera first filed for cancellation of removal in 2021. Because he had gone to prison in the past and had not been deported, Escalera thought that he could avoid deportation in this case as well. When he was arrested in 2016, Escalera had a substance abuse problem. He wanted to go into a treatment program and he also wanted to avoid having a strike conviction. He participated in the program but then lapsed, violated probation, returned to prison, and was subsequently placed in a hospital for mental health treatment.
Argument
At the section 1473.7 hearing, defense counsel argued that evidence had been presented to demonstrate that avoiding adverse immigration consequences would have been a priority for Escalera. Escalera came to the United States when he was six months old. His mother and siblings were citizens. He had no ties to Mexico and no ability to obtain medical treatment there. There was also evidence that Escalera did not understand the consequences of his plea because he had gone to prison several times and had not been deported. Escalera's defense attorney in the underlying criminal case had no recollection of discussing immigration consequences with him, and there was no documentation of a discussion or of efforts to enter into an immigration-neutral plea. If counsel had approached the district attorney and offered to waive his custody credits, Escalera could have been sent to a treatment facility for 364 days and remained eligible for cancellation of removal. Escalera would not have accepted the plea if he understood that he would be subject to mandatory deportation, which would deprive him of his family's support and mental health treatment. A general advisement would not cure the problem in this case because informing Escalera that he would be deported would not alert him to the fact that he would be ineligible for cancellation of removal. Although Escalera had 410 days of custody credit that would also render the conviction an aggravated felony, he could have waived those credits. It would be reasonable for the prosecution to accept the waiver of credits and agree to require one less day of residential treatment.
The People argued that Escalera was not credible when he said that he did not understand the immigration consequences of the plea. The plea agreement provided for a treatment program to help him address his alcohol addiction, and allowed him to avoid a more serious charge. Escalera had four convictions for driving under the influence and had been to prison multiple times. He was told he would be deported in 2011 when he pleaded no contest to another crime. Escalera was advised again in 2016 that he would be deported-not might be deported as is required, but would be deported. At the plea colloquy, the court told Escalara to ask questions if he had any, but he did not ask any questions. Escalara did not tell defense counsel he had an immigration attorney who had been representing him for three years.
Ruling The trial court denied Escalera's section 1473.7 motion.
The court found that Escalera was advised by the prosecutor that he would be deported in no uncertain terms. Escalera took no personal responsibility for his predicament. Although Escalera had mental health issues, he had been adjudged competent to plead. Escalera had been convicted and incarcerated multiple times and would have been advised that he would be deported each time. Escalera was informed by immigration authorities that he had committed a deportable offense in 2013. Despite that, Escalera committed assault in 2016. Escalera had an immigration attorney at the time of the plea but did not contact the attorney. The court found that Dilworth inquired about Escalera's priorities and that the circumstantial evidence showed Escalera was concerned with the immediate consequences of his plea-incarceration and a strike conviction-not adverse immigration consequences. He avoided a strike, received a very favorable bargain, and took advantage of that bargain. Escalera knew as early as 2017 that there was a potential immigration consequence of the plea, but did not move to vacate the plea. Escalera may have had a false sense of confidence that he would not be deported because he had not been deported after his previous convictions, but he had been warned. Moreover, it was unlikely that an immigration neutral bargain could have been reached at the time of the plea.
DISCUSSION
Legal Principles
Pursuant to section 1473.7, subdivision (a)(1), "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." "When ruling on the motion: [¶] . . . [t]he 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). For a motion made pursuant to paragraph (1) of subdivision (a), the moving party shall also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization." (§ 1473.7, subd. (e)(1).)
"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]." (People v. Espinoza (2023) 14 Cal.5th 311, 316 (Espinoza).) "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.5th at p. 319.)" '[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.' [Citation.] When courts engage in independent review, they should be mindful that' "[i]ndependent review is not the equivalent of de novo review...."' [Citation.]
An appellate court may not simply second-guess factual findings that are based on the trial court's own observations....' "[T]he credibility of witnesses the [superior court] heard and observed"' are entitled to particular deference, even though courts reviewing such claims generally may' "reach a different conclusion [from the trial court] on an independent examination of the evidence . . . even where the evidence is conflicting."' [Citation.] In section 1473.7 proceedings, appellate courts should similarly give particular deference to factual findings based on the trial court's personal observations of witnesses.... Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (People v. Vivar (2021) 11 Cal.5th 510, 527-528, fns. omitted.)
Analysis
Section 1473.7The Trial Court Applied the Correct Legal Standard
Escalera contends that the trial court did not employ the correct legal standard when ruling on his section 1473.7 motion. The contention lacks merit. Escalera points to isolated statements in the trial court's ruling to argue that the court believed it was determining whether Escalera's plea was constitutionally deficient rather than determining whether Escalera's conviction or sentence was legally invalid under section 1473.7 due to prejudicial error damaging Escalera's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction or sentence. Escalera's argument takes the court's statements out of context, and ignores the court's analysis, which clearly shows that the court applied the correct legal standard and addressed the appropriate considerations. At the outset, the court stated that its statutory inquiry was "whether or not I believe that [Escalera] actually understood [the] immigration consequences at the time of the plea." The court found that Escalera did understand the consequences of the plea but chose to ignore them and instead avoid the immediate consequence of incarceration. In determining whether Escalera would have rejected the plea (i.e., whether he suffered prejudice), the court considered Escalera's personal circumstances, his priorities when deciding whether to plead, the likelihood that an immigration-neutral disposition could have been reached, and the likely outcome had Escalara instead proceeded to trial. In short, the trial court applied the correct standard and considered the relevant factors.
Escalera's contention ignores defense counsel's argument at the hearing that for Escalera to obtain cancellation of removal in the immigration court the trial court must articulate a constitutional basis for vacating the plea in the instant matter. ("You have to vacate it because he did not understand that this was going to be a custodial sentence. That's the constitutional basis that the immigration court requires." "This is not just to vacate the plea. It's also plea and/or sentence. [¶] You can correct that, but it has to be a constitutional basis that he did not understand that this was going to be an aggravated felony at the time he was sentenced.") The court's statements regarding the constitutionality of the plea were in response to defense counsel's arguments about what the immigration court would require before it would grant cancellation of removal, as opposed to the standard the trial court was required to apply in its own inquiry. Once defense counsel determined that the court was not going to rule that the plea was unconstitutional she back-tracked, stating: "What about that he just did not understand the effect of the sentence[?]" The court reiterated that it did not find Escalera credible.
Escalera Understood the Adverse Immigration Consequences
Escalera next argues that the trial court did not find that his testimony was not credible. We reject the contention. The court clearly stated that it believed Escalera knew he would be deported despite his assertions to the contrary. We defer to the trial court's credibility finding, which is supported by substantial evidence.
The court cited to the plea colloquy, where the prosecutor told Escalera in no uncertain terms that he would be deported. Escalera stated that he understood. Escalera did not ask any questions, despite the court's invitation to ask questions at any time during the plea if there was something that he did not understand.
Although Dilworth did not specifically recall Escalera's case, Escalera testified that she talked to him about deportation. When asked what he expected would happen to him as a result of the plea, he responded that he expected to be deported. He also testified that he understood that to mean that he would be permanently barred from entering the United States. Later, after his attorney prodded him further, Escalera stated that he did not believe he would be deported because he had not been deported after his prior convictions and that he thought he could avoid deportation by "stopping the cancellation". The trial court found the latter testimony not credible.
The trial court further found that Escalera was primarily concerned with the immediate consequence of incarceration. Dilworth testified that it was her practice to determine her clients' priorities and advise them accordingly. If a defendant expressed that adverse immigration consequences were the primary concern, she would discuss those consequences with the client and contact the immigration unit in her office if additional guidance was needed. The court credited Dilworth's testimony and found that the lack of notes regarding immigration consequences in Dilworth's files was consistent with the conclusion that Escalera expressed a greater concern with avoiding incarceration and getting into a substance abuse treatment program than he did with avoiding adverse immigration consequences.
Escalera's actions belie his assertion that adverse immigration consequences were his primary concern. Escalera did not inform Dilworth that he had an immigration attorney, and he did not consult his immigration attorney regarding the plea agreement. Escalera testified that he "wasn't worried about it" because every time he committed a crime he had trouble with the immigration authorities, but he had not been deported. There is no evidence that Escalera shared with Dilworth his alleged belief that deportation could be "repaired", or that he asked her whether deportation could be avoided, or that Dilworth incorrectly suggested there would be avenues of relief available to him if he pleaded no contest.
In sum, the court concluded that Escalera understood the adverse immigration consequences, but wanted to take advantage of what was an "amazing deal" and "recklessly just decided to go forward" and "roll the dice and see what is going to happen". We give deference to the trial court's factual and credibility findings, which are based on the court's assessment of in-person witness testimony and are supported by the record. In light of the court's findings that Escalera knew the consequences of pleading no contest and chose to take advantage of the plea agreement, there was no error that prevented Escalera from understanding, defending against, or knowingly accepting the immigration consequences of the plea agreement.
Escalera Was Not Prejudiced
Even assuming Escalera did not know of the exact adverse immigration consequences he faced-i.e., even if he knew that he could be deported but believed that he would be eligible for cancellation of removal as he claims-he fails to show he was prejudiced. We recognize that Escalera had many compelling reasons to avoid deportation: he spent almost his entire life in the United States, had family members who were United States citizens, had no ties to Mexico and had never been there, and was receiving government assistance for his mental health problems. Despite these factors, Escalera did not meet his burden of demonstrating by a preponderance of the evidence that he would have rejected the plea.
First, the trial court's finding that it would not have been possible to negotiate an immigration-neutral disposition is supported by the evidence. Even if Dilworth had approached the prosecutor with a proposal to reduce Escalera's time in a treatment program to 364 days and have Escalera waive 410 days of custody credit, there was no evidence presented that the prosecutor would have been amenable to such a deal. Escalera's counsel argued that a reduction of one day would not have been significant to the prosecution, but did not offer any evidence that similar dispositions were negotiated at the time. (Compare People v. Bautista (2004) 115 Cal.App.4th 229, 240 [immigration attorney testified to knowledge of five instances in which petitioner's proposed immigration-neutral disposition had been obtained].) To the contrary, Dilworth testified that at the time of the plea the District Attorney's office was hostile to immigrationneutral sentences because they conferred a greater benefit to non-citizen defendants than a United States citizen would receive. She further testified that simply proposing such an agreement could result in an offer that was less beneficial to a defendant.
Second, Escalera obtained what both he and Dilworth testified was a very favorable bargain. Given the facts of the underlying offense, Escalera could have been charged with attempted murder, but was charged with the lesser offense of assault with a deadly weapon. As for the plea bargain itself, rather than facing a conviction under section 245, subdivision (a)(1), which carried a prison sentence and was both a strike offense and an aggravated felony that would result in mandatory removal, Escalera was convicted under section 245, subdivision (a)(4) of a non-strike offense with no prison sentence imposed and the opportunity for much-needed substance abuse treatment. Given Dilworth's testimony regarding the climate in the District Attorney's office at the time-which the trial court credited-the trial court's finding that the parties would not have reached an agreement even more favorable to Escalera is supported by the record.
Third, Escalera's criminal history and his actions at the time of the plea belie his assertion that he would have held out for a more favorable agreement or gone to trial. Escalera had a very extensive criminal history and had been charged with first degree burglary with a person present in 2010, which was an aggravated felony at that time. (See U.S. v. Ramos-Medina (9th Cir. 2013) 706 F.3d 932, 936-937.) He had committed multiple deportable offenses, had been in deportation proceedings for three years, and had immigration counsel who would have advised him that committing additional crimes would greatly decrease the chances of being granted cancellation of removal, which is discretionary relief. (See Barros v. Garland (1st Cir. 2022) 31 F.4th 51, 56 [" '[T]he Attorney General's decision to grant [cancellation of removal to a legal permanent resident] is discretionary and "amounts to an act of grace"' "].) After deportation proceedings were initiated, Escalera failed to address his substance abuse problems and committed an offense that was charged as an aggravated felony. There is no evidence that Escalera expressed concern about the immigration consequences of his plea to Dilworth or asked her whether the offense he ultimately pleaded to would make him ineligible for cancellation of removal, which his immigration attorney testified he was planning to apply for. He did not consult his immigration attorney regarding the plea offer and any potential adverse immigration consequences before he entered into the agreement. It is hard to imagine circumstances that more clearly evince a total lack of concern regarding adverse immigration consequences. In light of the foregoing, Escalera has failed to establish prejudice by a preponderance of the evidence.
Ineffective Assistance of Counsel
Escalera forfeited his claim that Dilworth rendered ineffective assistance by failing to raise it before the trial court. His counsel in the section 1473.7 proceedings specifically disavowed it in argument to the court at the hearing. ("This is not about ineffective assistance of counsel." "This is not about Ms. Dilworth being negligent or below the standard.")
DISPOSITION
We affirm the trial court's order denying Escalera's motion to vacate his no contest plea pursuant to Penal Code section 1473.7, subdivision (a).
We concur: BAKER, Acting P. J. KIM, J.