Summary
In Espinoza, the Fifth District Court of Appeal concluded the defendant's declaration, without more, was insufficient to show immigration consequences were a paramount concern of his, even though he had lived in the United States for 20 years and his family was here.
Summary of this case from People v. SotoOpinion
F079209
05-28-2021
THE PEOPLE, Plaintiff and Respondent, v. JUVENTINO ESPINOZA, Defendant and Appellant.
Sanger Swysen and Dunkle and Stephen K. Dunkle for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, David Andrew Eldredge, and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF109133B-03)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Steven D. Barnes, Judge. Sanger Swysen and Dunkle and Stephen K. Dunkle for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, David Andrew Eldredge, and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
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Juventino Espinoza moved to vacate his conviction three separate times due to ongoing immigration proceedings. The first motion was nonstatutory. The second was pursuant to Penal Code section 1473.7. The third "renewed" the second motion. The trial court denied all three. Espinoza appeals the third denial, arguing he was entitled to relief.
Undesignated references are to the Penal Code.
The People argue this appeal should be dismissed because the first two denials were not appealed. They also contend the appeal otherwise lacks merit. We reject the former argument but accept the latter and will affirm the judgment.
BACKGROUND
In 2004, Espinoza pled no contest to conspiracy (§ 182, subd. (a)(1)), controlling property to manufacture a controlled substance (Health and Saf. Code, § 11366.5, subd. (a)), felony child abuse (§ 273a, subd. (a)), and possessing a controlled substance (Health and Saf. Code, § 11350, subd. (a)). He was sentenced to serve 365 days in jail.
According to the People's opposition to Espinoza's 2019 "renewed" motion to vacate his conviction, at his January 5, 2004, change of plea hearing, Espinoza "was advised by the court of the consequences of his plea and that his plea 'could result in your being deported from the United States, denied readmission, naturalization and permanent residency.' " However, neither the reporter's transcript from the change of plea hearing nor from the February 2, 2004 sentencing hearing were made a part of the record in this appeal.
According to a declaration filed by Espinoza, he learned in 2015 that he was at risk for deportation. Two years later, he moved to vacate his conviction on the basis his plea counsel failed to properly advise him regarding immigration. The trial court denied the motion as untimely.
The next year, Espinoza filed a motion pursuant to then newly enacted section 1473.7. This motion was based on multiple allegations of ineffective assistance of counsel including not explaining incarceration, failing to provide investigatory reports, and failing to defend against or identify adverse immigration consequences. The court noted Espinoza expressed no hesitation or surprise when incarcerated and denied the motion as unsupported and untimely.
Espinoza "renewed" the motion the following year. This time he argued it was unnecessary to prove ineffective assistance of counsel, offered an alternative resolution to mitigate against adverse immigration consequences, and insisted he would have declined to settle the case had he known he would be deported.
In a declaration attached to the third motion, Espinoza declared the following: 1) he came to this country at age 13; 2) he became a permanent resident several years later; 3) his five children, parents, and eight siblings all live in the United States; 4) he did not believe the court's immigration warning applied to him as a permanent resident; and 5) deportation would cause hardship to himself, his spouse, and his children. The court ultimately denied the motion based on "a failure of the standard of proof."
DISCUSSION
Espinoza argues "the undisputed evidence is that [his] attorney never discussed the actual or potential immigration consequences of the plea with him. [Citation.] He was instead advised that if he pleaded no contest, everything would be fine." He concludes his "declaration plainly established his own 'error' within the meaning of Penal Code § 1473.7(a)(1)."
The People assert the present appeal is barred by "res judicata ...." Alternatively, they claim the court properly denied the motion. We find the appeal is not barred but our independent review leads us to nonetheless affirm the judgment.
I. The Appeal Is Not Barred
"The claim preclusion doctrine, formerly called res judicata, 'prohibits a second suit between the same parties on the same cause of action.' [Citation.] 'Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.' " (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91.)
On a related note, the Supreme Court has "not yet decided ... whether either aspect of the res judicata doctrine 'even applies to further proceedings in the same litigation.' " (People v. Barragan (2004) 32 Cal.4th 236, 253.)
" 'The burden of proving that the requirements for application of [claim preclusion] have been met is upon the party seeking to assert it as a bar or estoppel.' " (Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 40.) Claim preclusion " 'is not a jurisdictional defense, and may be waived by failure to raise it in the trial court.' " (David v. Hermann (2005) 129 Cal.App.4th 672, 683.)
The People here failed to assert claim preclusion in the trial court. The failure to do so waives its application on appeal. Accordingly, we turn to the merits.
II. The Motion Lacks Merit
Section 1473.7 permits a person to "file a motion to vacate a conviction" if "[t]he conviction ... is legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subds. (a), (a)(1).)
Prejudicial 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. When courts assess whether a petitioner has shown that reasonable probability, they 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." (People v. Vivar (May 3, 2021, S260270) ___ Cal.5th ___ 2021 WL 1726827, at *10 (Vivar).)
"[W]hen a defendant seeks to withdraw a plea based on inadequate advisement of immigration consequences," he or she must corroborate "such assertions with ' "objective evidence." ' " (Vivar, supra, 2021 WL 1726827, at *10.) In determining whether the defendant would have insisted on an alternative resolution, the focus is not placed on "whether the prosecution would actually 'have offered a different bargain' — rather" the focus is on whether " 'the defendant' " could " 'expect or hope a different bargain' " was possible. (Vivar, supra, 2021 WL 1726827, at *9.)
A trial court's decision to grant or deny a section 1473.7 motion is reviewed independently. " '[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.' [Citation.] ... ' "[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. [Citations.] ... In section 1473.7 proceedings, appellate courts should ... give particular deference to factual findings based on the trial court's personal observations of witnesses. [Citation.] Where, as here, the facts derive entirely from written declarations and other documents, however, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, '[t]he trial court and this court are in the same position in interpreting written declarations' when reviewing a cold record in a section 1473.7 proceeding. [Citation.] Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (Vivar, supra, 2021 WL 1726827, at *8, fn. omitted.)
With these principles in mind, we conclude Espinoza has failed to prove a basis for relief. His ineffective assistance of counsel claim is based entirely on his own declaration and devoid of any objective corroborating evidence. The law has "long required [a] defendant to corroborate such assertions with ' "objective evidence." ' " (Vivar, supra, 2021 WL 1726827, at *10.) Espinoza has not done so here.
Also lacking in this case is any evidence from Espinoza's plea counsel. (See Vivar, supra, 2021 WL 1726827, at *10 ["counsel's recollection and contemporaneous notes reflect[ing]" explicit concerns regarding immigration is significant corroborating evidence].) Espinoza did, on the other hand, present a declaration from an immigration attorney outlining a proposed resolution that could avoid or mitigate against adverse immigration consequences.
We need not pass upon the practical likelihood such a resolution would succeed because the focus is on whether Espinoza would have pursued such an alternative resolution notwithstanding its viability. (Vivar, supra, 2021 WL 1726827, at *9.) In assessing this factor, we again find no contemporaneous evidence corroborating his claim immigration consequences were a paramount concern.
The sole corroborating evidence in the record is Espinoza's biographical history. It is true his history presents a sympathetic case for relief: He came to this country more than 20 years prior to the convictions in this case and deportation will presumably result in separation from his immediate family. The record, however, lacks any other significant contemporaneous evidence to corroborate the claim immigration was a material concern at the time he settled the case.
For example, Espinoza's plea could have been motivated by a desire to minimize incarceration. He was sentenced to serve 365 days in county jail, whereas a section 273a, subdivision (a), conviction is punishable by up to six years in state prison. We emphasize section 1473.7 relief does not turn on whether immigration was the most important concern to an individual. There is no reason why minimizing both incarceration and immigration consequences are "incompatible" objectives. (See Vivar, supra, 2021 WL 1726827, at *11 [Court of Appeal erred by assuming multiple "goals" in plea bargaining lessens importance of immigration concern].) Our conclusion in this case is simply that there is slight evidence immigration was a significant concern at all.
In contrast to this case, the record in Vivar, supra, readily illustrates a sufficient showing of prejudice. The defendant there quickly learned of adverse immigration consequences after his conviction by plea and "promptly sent a series of letters to the court expressing confusion about the situation ...." (Vivar, supra, 2021 WL 1726827, at *3.) Importantly, these letters were written "at or near the time of his plea" and memorialized concerns about immigration. (Vivar, supra, 2021 WL 1726827, at *10.)
In fairness, Espinoza may not have had a similar opportunity to contemporaneously memorialize his immigration concerns because, according to him, he did not learn of actual adverse immigration consequences until more than 10 years after his conviction. In a similar vein, however, neither did he express any on-the-record confusion nor hesitation when actually incarcerated—despite claiming he was caught unaware. Nor did he later pen any letters documenting his lament at incarceration. This evidentiary void casts material doubt on his credibility.
In any event, Espinoza's concerns regarding immigration could have been documented prior to settling the case, in conversations with plea counsel. But, as noted, the record here lacks such evidence. (Cf. Vivar, supra, 2021 WL 1726827, at *10 ["counsel's recollection and contemporaneous notes reflect that [defendant] was indeed concerned about the [immigration] 'consequences' of his plea ... constitute contemporaneous objective facts"].)
For all these reasons we conclude Espinoza has not proven a basis for relief. The trial court order denying the motion to vacate will stand.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J. WE CONCUR: LEVY, Acting P.J. POOCHIGIAN, J.