Opinion
E070383
11-21-2019
THE PEOPLE, Plaintiff and Respondent, v. ARNOLDO ANTONIO GARCIA, Defendant and Appellant.
Gibson, Dunn & Crutcher and Kahn A. Scolnick, Gregory S. Bok, Jessica R. Culpepper, Daniel R. Adler, and Stephanie V. Balitzer, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene Sevidal, Minh U. Le, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1200680) OPINION APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed. Gibson, Dunn & Crutcher and Kahn A. Scolnick, Gregory S. Bok, Jessica R. Culpepper, Daniel R. Adler, and Stephanie V. Balitzer, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene Sevidal, Minh U. Le, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Arnoldo Antonio Garcia, pled guilty to possession for sale of heroin. (Health & Saf. Code, § 11351.) Defendant was granted probation and as a condition of probation was required to serve 20 days in jail. Shortly after his release, defendant was placed in immigration detention, where he stayed for nearly five years. Defendant subsequently filed a motion to vacate his conviction pursuant to Penal Code section 1473.7, which the trial court denied.
On appeal, defendant argues the trial court erred in denying his motion to vacate his guilty plea because his trial counsel was ineffective in failing to investigate and advise defendant of the immigration consequences of his plea and for failing to defend or mitigate the judgment. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts concerning defendant's underlying offense are taken from the police report and the declarations filed in support of and in opposition to defendant's motion to vacate.
Defendant immigrated from El Salvador in 1992 when he was 14 years old. At the time of the relevant offense, defendant had lawful immigration status. According to his family, defendant read and understood very little English at the time.
On February 14, 2012, police responded to a call reporting possible gang members threatening an elderly woman. When they arrived, the woman, defendant's grandmother, informed them that she was fine and that defendant had made the call. Defendant then called the police again to inform them he was not at the residence and to give them his new location. Police found defendant at that location and began to question him about the earlier phone call.
Defendant appeared to be under the influence of a stimulant, and his answers to questions were sometimes inaudible or unintelligible. Defendant admitted he had taken methamphetamine earlier in the day. Based on this admission police arrested defendant pursuant to Health and Safety Code section 11550.
Officers began preparing him for transport to a detention center, and asked him if he had anything illegal on him. Defendant told the officers no. When defendant arrived at the detention center, the officers again asked him if he had anything illegal on him and he again replied that he did not. Nevertheless, upon searching him, a sheriff's deputy saw something in his mouth. The deputy ordered defendant to spit it out, but instead defendant tried to swallow the items. Defendant eventually spit out seven individually wrapped packages of heroin.
Defendant was charged with possession for sale of heroin (Health & Saf. Code, § 11351) and bringing controlled substances into a jail (Pen. Code, § 4573.)
All further statutory references are to the Penal Code unless otherwise indicated.
On November 29, 2012, defendant was brought to court for a prepreliminary hearing. Prior to going on the record at the hearing, defendant signed a form changing his plea from "not guilty" to "guilty." This form required defendant to initial 22 separate paragraphs acknowledging that he understood the potential consequences of his plea. This included a paragraph stating: "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which I plead guilty/no contest." Defendant also initialized a paragraph acknowledging "I have had sufficient time to consult with my attorney," and that "[m]y lawyer has explained everything on this Declaration to me, and I have had sufficient time to consider the meaning of each statement." The interpreter also signed under penalty of perjury certifying that she translated the entire form to defendant, and defendant's attorney, Timothy D., signed under penalty of perjury that he personally read and explained the entire form to defendant.
When taking the plea, the court asked defendant if he initialed every paragraph of the plea form "after reading and understanding and discussing each paragraph with your attorney?" Defendant responded "[y]es." The court then asked: "And did you understand everything on the form?" Defendant again responded that he did. Defendant denied that he was under the influence of any narcotics, medicine, or anything else that would affect his understanding of the proceedings. Defendant also confirmed that he had enough time to discuss his case with his lawyer. Finally, the court also asked defendant whether he understood that "if you are not a citizen of the United States consequences of conviction will include deportation, exclusion from admission to the United States or denial of naturalization . . . ." Defendant responded that he did understand. Based on this examination, the court accepted defendant's guilty plea. In exchange for his guilty plea, defendant received three years of probation with a condition that he serve 20 days in county jail with 20 days credit for time served.
On December 5, 2012, less than a week after the prepreliminary hearing, defendant was detained by Immigrations and Customs Enforcement. He was ordered removed from the country, but counsel represents that the federal Court of Appeal for the Ninth Circuit has stayed removal proceedings pending appeal. Defendant remained in Immigrations and Customs Enforcement custody until September 2017, when he was released on bond. After his release, defendant's probation was terminated.
On November 22, 2017, defendant filed a motion to withdraw his plea pursuant to section 1473.7. In support of this motion, defendant submitted a declaration on his own behalf. In that declaration, defendant attests that he was not given any advisement about immigration consequences. According to defendant, he asked Timothy D. at the hearing whether he would face any immigration consequences on account of the criminal proceedings. Timothy D. asked him whether he had lawful immigration status. When defendant replied that he did, Timothy D. told him he would not face any immigration consequences. Defendant then met with an interpreter to go over his plea form. The interpreter asked whether the attorney had explained everything. After defendant mistakenly affirmed that everything had been explained to him, the interpreter instructed him on where to sign and initial without translating any portion of the document.
The People opposed defendant's motion. In support of their opposition, they submitted a declaration by Timothy D. In this declaration, Timothy D. declared that he did not remember what specifically happened the day of the hearing, but that his custom and habit was to advise his noncitizen clients that any plea could have immigration consequences. He also attested that he "would never have told a noncitizen client that a conviction for possession of heroin for sale would not cause immigration problems," and that he would personally go over every plea form with his clients "line-by-line with the assistance of a Spanish interpreter if one was needed," and did not delegate this duty to an interpreter.
The court denied defendant's motion. Defendant timely appealed this denial.
III. DISCUSSION
Defendant argues his motion to vacate should have been granted because he was ineffectively assisted by his counsel, Timothy D. Specifically, defendant claims that Timothy D.'s assistance did not meet either the Sixth Amendment standard for assistance of counsel nor the standard under section 1473.7 because he failed to advise defendant of the near certainty that defendant's guilty plea would result in his deportation and failed to defend against or mitigate the immigration consequences of his plea. We disagree. A. Standard of Review
Review of a motion to vacate a plea based on alleged ineffective assistance of counsel implicates a constitutional right and is therefore a mixed question of fact and law. (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.) Under these circumstances, "[w]e independently review the order denying the motion to vacate . . . ." (Ibid.) This standard requires that "[w]e accord deference to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel's deficient performance and resulting prejudice to the defendant." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.)
However, where a motion under section 1473.7 is based on statutory error or a deprivation of statutory rights, abuse of discretion is the appropriate standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 ["A decision to deny a motion to withdraw a '"guilty plea rests in the sound discretion of the court"' . . . ."].) As we discuss below, because defendant fails to establish that reversal is necessary under the less deferential mixed question of law and fact standard, it is unnecessary to review his claims under the abuse of discretion standard. B. Defendant Did Not Meet His Burden to Prove Ineffective Assistance of Counsel and Prejudicial Error Under Section 1473 .7
Section 1473.7, subdivision (a)(1) allows anyone not in criminal custody to file a motion to vacate a conviction 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 plea of guilty . . . ." (§ 1473.7, subd. (a)(1).) "Ineffective assistance of counsel . . . is the type of error that entitles the defendant to relief under section 1473.7." (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 75.)
"The Sixth Amendment guarantees a defendant the effective assistance of counsel at 'critical stages of a criminal proceeding,' including when he enters a guilty plea." (Lee v. United States (2017) ___ U.S. ___, ___ [137 S.Ct. 1958, 1964].) "'"In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating . . . that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.'"'" (People v. Salcido (2008) 44 Cal.4th 93, 170.) "'"If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice . . . ."'" (Ibid.)
The burden of proof the defendant must meet in order to establish his entitlement to relief under section 1473.7 is a preponderance of the evidence. (§ 1473.7, subd. (e)(1).)
1. Defendant Does Not Establish His Trial Counsel Did Not Provide Effective Assistance
Defendant argues he has proven his counsel's representation was deficient under either the Sixth Amendment or section 1473.7 for two independent reasons. First, because the record indicates that his counsel did not affirmatively advise him that his plea would result in deportation. Second, because his counsel did not attempt to negotiate an immigration-neutral plea.
In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme Court held that criminal defense attorneys have an affirmative duty to advise their clients of the potential deportation consequences of any plea. (Id. at p. 374 ["[C]ounsel must inform her client whether his plea carries a risk of deportation."].) The court acknowledged that immigration law can be complex and that "[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." (Id. at p. 369.) "But when . . . federal immigration law specifies in 'succinct, clear, and explicit' terms that a criminal conviction will result in deportability . . . a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea." (People v. Patterson (2017) 2 Cal.5th 885, 898, citing Padilla v. Kentucky, supra, at pp. 368-369.)
The California Penal Code now explicitly incorporates the Supreme Court's decision in Padilla. In 2015, the Legislature enacted sections 1016.2 and 1016.3, which respectively state that "[i]t is the intent of the Legislature to codify Padilla v. Kentucky and related California case law . . . ," and that "[d]efense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition . . . ." (§§ 1016.2, subd. (h), 1016.3, subd. (a).)
Here, the law was and is clear that defendant's plea would subject him to mandatory removal. Defendant pled guilty to an "aggravated felony" under federal immigration law, namely, "illicit trafficking in a controlled substance." (See 8 U.S.C. § 1101(a)(43)(B).) "[A] noncitizen convicted of such an offense is subject to mandatory deportation." (Lee v. United States, supra, ___ U.S. at p. ___ , citing 8 U.S.C. § 1227(a)(2)(A)(iii).) The California Supreme Court and other state courts have held that federal immigration law is sufficiently "succinct, clear and explicit," about the consequences of similar trafficking convictions that defense counsel must advise their clients they will be deported if they plead guilty to such an offense. (See People v. Patterson, supra, 2 Cal.5th at p. 898 [finding federal immigration law was clear with regards to the consequences of convictions for sale or transport of methamphetamine as well as possession of cocaine, morphine, methamphetamine, and PCP]; In re Hernandez (2019) 33 Cal.App.5th 530, 545 ["There is no dispute here that the crime to which Hernandez pleaded guilty, possession of methamphetamine in violation of [Health and Safety Code] section 11378, subjected her to mandatory deportation."].)
Substantial contemporaneous evidence, including defendant's plea form and statements on the record, support the finding that defendant was properly advised that his plea would result in deportation. On defendant's plea form, he initialed a paragraph affirming that he "had sufficient time to consult with [his] attorney concerning [his] intent to plead guilty," and that his "lawyer . . . explained everything on this Declaration." Defendant reiterated that he had enough time to discuss his case with his lawyer when questioned by the court on the record. This is consistent with Timothy D.'s declaration, which states that it was his practice to read over the plea form with his clients "line-by-line with the assistance of a Spanish interpreter if one was needed." These mutually corroborating pieces of evidence thus support the notion that Timothy D. reviewed the entire plea form with defendant and advised him on the same, including reiterating the advisement that if defendant was "not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which," he pleaded. Even without more, this advisement succinctly and clearly explained that deportation would (not could or may) result from defendant's plea and conviction.
Timothy D.'s declaration further attests that it was his "custom and habit to advise [his] noncitizen clients that a guilty plea and conviction could have negative immigration consequences," and that he "would never have told a noncitizen client that a conviction for possession of heroin for sale would not cause immigration problems." These statements are consistent with the contemporary evidence in the record. While these latter advisements alone are arguably insufficient to meet the Padilla standard, together with Timothy D.'s advisements regarding the plea form, there is substantial evidence to conclude that Timothy D. did advise defendant that his plea would result in deportation.
Defendant argues that a bare advisement by the court or on a plea form that immigration consequences will result from a plea is no substitute for advice from counsel. But that is not the circumstance here. In this case, there is substantial evidence to conclude that Timothy D. himself advised defendant that deportation would be a consequence of defendant's plea. That Timothy D. may have done so in the process of reviewing defendant's plea form with him does not change that Timothy D. gave him the proper advice in addition to the advisements by the court and on the plea form.
In this case, the only evidence defendant was not advised of this consequence is his own self-serving declaration. But the trial court found defendant's declaration not credible. In particular, the court found defendant's claim that the interpreter did not translate the plea form and thereby committed perjury "wholly, unsubstantiated, and . . . wholly incredible." Because it found "that allegation, frankly, to be not credible," it "call[ed] into question much of what else is in that declaration." Therefore, the court had "problems accepting [defendant]'s version of events." This was a determination of defendant's credibility, and under a mixed question of law and fact review "[w]e do not reevaluate witness credibility." (People v. Tapia (2018) 26 Cal.App.5th 942, 953, citing People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
However, even if we view defendant's declaration independently, we concur with the trial court's assessment that defendant's declaration is not credible. The declaration is simply inconsistent with the objective evidence in the record, including multiple sworn statements made at the time of the plea. The objective evidence in the record contradicts, rather than corroborates, defendant's claim that he was not properly advised of the consequences of his plea.
Next we turn to defendant's argument that Timothy D. ineffectively represented him by failing to negotiate an immigration-neutral plea deal. We agree with defendant that under certain circumstances failure to negotiate an immigration-neutral plea deal can constitute ineffective assistance of counsel. (See People v. Bautista (2004) 115 Cal.App.4th 229, 238-242.) However, the evidence here does not demonstrate that Timothy D. actually did fail to negotiate such a plea.
People v. Perez (2018) 19 Cal.App.5th 818 is instructive in this regard. In that case, as in this one, there was "no indication in the record that the prosecution was willing to agree to an immigration safe disposition. Similarly, there [was] no suggestion that [the defendant's] counsel did not attempt to negotiate such a disposition." (Id. at p. 830.) Because "[a]n appellant has the burden of establishing, based on the record on appeal and based on facts, not speculation, that counsel rendered ineffective assistance of counsel," the lack of any evidence regarding counsel's negotiations or lack thereof was fatal to the defendant's attempt to vacate his conviction on those grounds. (People v. Perez, supra, 19 Cal.App.5th at p. 830.)
The same is true here. The only evidence defendant presents in support of his claim that his counsel failed to negotiate an immigration-neutral plea is a putative expert's declaration that an immigration-neutral plea might have been available. But the mere fact that an immigration-neutral plea might have existed is not evidence that Timothy D. failed to identify or negotiate for such a plea. (Cf. People v. Bautista, supra, 115 Cal.App.4th at p. 241 [issuing order to show cause on petition for writ of habeas corpus where counsel admitted that he failed to investigate an immigration-neutral plea because it "never crossed his mind."].) Defendant only speculates, with no corroborating evidence, that his trial counsel did not attempt to secure an immigration-neutral plea and that the prosecutor would have likely agreed to such a disposition. This is insufficient to meet defendant's burden to prove ineffective assistance of counsel.
Accordingly, defendant has not demonstrated that his trial counsel's representation damaged his "ability to meaningfully understand . . . or knowingly accept the actual or potential adverse consequences of [his] plea," by a preponderance of the evidence. (§ 1473.7, subd. (a)(1).)
2. Defense Counsel's Error Was Not Prejudicial
Though we find that defendant does not meet his burden to show ineffective assistance of counsel, even "'"[i]f a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice . . . ."'" (People v. Salcido, supra, 44 Cal.4th at p. 170.) "To establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 78.) A defendant establishes prejudice where he shows that "'"it is 'reasonably probable' the defendant would not have pleaded guilty if properly advised."'" (People v. Martinez (2013) 57 Cal.4th 555, 562, quoting People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.)
"[T]he test for prejudice considers what the defendant would have done, not what the effect of that decision would have been . . . ." (People v. Martinez, supra, 57 Cal.4th at p. 564.) Indeed, a court can find it reasonably probable a defendant would have rejected a plea even if his only other option was a slim chance of victory at trial. (Lee v. United States, supra, ___ U.S. at p. ___ [finding prejudice where it was reasonably probable defendant "would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a 'Hail Mary' at trial."]; see also People v. Mejia (2019) 36 Cal.App.5th 859, 871 ["[A] 'prejudicial error' occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial . . .—had the person known that the guilty plea would result in mandatory and dire immigration consequences."].)
In order to satisfy his burden to prove prejudice, "the defendant must provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised. It is up to the trial court to determine whether the defendant's assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances." (People v. Martinez, supra, 57 Cal.4th at p. 565.) In determining whether a defendant meets this burden, "[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." (Lee v. U.S., supra, ___ U.S. at p. ___ .)
Defendant did not satisfy this burden here. The record contains sufficient evidence to conclude that defendant understood and accepted the consequences of his plea, and therefore any alleged misadvice was not prejudicial. Defendant was provided with a Spanish interpreter, who affirmed that they translated the entire plea form for him. Similarly, his attorney declared on the plea form and later in opposition to defendant's motion that he went over the entire form with defendant and explained it to him "line-by-line." Defendant initialed a paragraph in that plea form stating that there will be immigration consequences, including deportation, as a consequence of his plea. The court then told defendant that there would be immigration consequences from his plea, including deportation, and defendant acknowledged that he understood these consequences. Finally, Timothy D. stated on the record that he had adequate time to discuss the plea with defendant and that he believed defendant understood everything on the plea form. This is consistent with and corroborates Timothy D.'s declaration that it was his "custom and habit to advise [his] noncitizen clients that a guilty plea and conviction could have negative immigration consequences," and to "read over the plea form with them myself . . . line-by-line with the assistance of a Spanish interpreter if one was needed."
As with the ineffective assistance prong of the analysis, the only evidence defendant did not understand his plea and would not have taken the plea had he understood is his own declaration. But as we discuss above, the trial court found this declaration not credible. That credibility determination was for the trial court to make. (People v. Tapia, supra, 26 Cal.App.5th at p. 953.) However, even when viewed independently, we concur with the finding. In addition "a defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." (In re Alvernaz (1992) 2 Cal.4th 924, 938.) Defendant points to no contemporaneous evidence in the record that corroborates his claims in his declaration. Indeed, much of the record evidence directly contradicts defendant's claims and corroborates Timothy D.'s.
We agree with the trial court that had there been "any indication here that [defendant] didn't understand, that he raised a question [or] that anybody had brushed over his questions or not answered his questions, [it] could easily have been a different story." But no such indication exists.
Defendant directs this court's attention to two recently filed cases from other divisions of this court: In re Hernandez, supra, 33 Cal.App.5th 530, and People v. Mejia, supra, 36 Cal.App.5th 859. However, neither Hernandez nor Mejia dictate a different outcome, as both are distinguishable on their facts. In Hernandez, the trial counsel admitted that he did not know Hernandez's immigration status and that he did not think she would be deported. (In re Hernandez, supra, at p. 538.) In addition, the court did not admonish defendant on the record, depriving Hernandez of a proper advisement as well as an opportunity to express any misunderstanding or inquiry on the record. (Id. at p. 546.)
Similarly, in Mejia, there is no mention of any on the record advisement from the court that accepted Mejia's plea, and the plea form only advised Mejia that his plea may have immigration consequences. (People v. Mejia (2019) 36 Cal.App.5th at pp. 862-863.) Thus, the contemporary objective evidence in these cases corroborated the accounts of the parties seeking relief.
Nor does defendant demonstrate prejudice with regards to Timothy D.'s alleged failure to negotiate an immigration-neutral deal. As discussed above, defendant presents no evidence that Timothy D. did not attempt to negotiate such a deal. As a natural consequence, there is no contemporaneous evidence that the People in this case would have accepted an immigration-neutral plea. The only evidence defendant puts forward is his expert's declaration that certain immigration-neutral pleas "would be attractive to a [district attorney]" and that "[w]e cannot assume that if . . . presented to a [district attorney], it would not have been taken seriously into consideration." But this speculation about what certain district attorneys might have done or how attractive certain pleas might have been is not sufficient to meet defendant's burden. Absent some evidence that the district attorney in this case would have been receptive to such a plea, we cannot conclude that alternative pleas were viable options even if they had been pursued. Thus, defendant has not proven by a preponderance of the evidence that had Timothy D. sought such a deal it is reasonably probable defendant would have had a more beneficial outcome.
Because defendant has not proven by a preponderance of the evidence that he was prejudiced by his counsel's alleged errors, he is not entitled to relief.
IV. DISPOSITION
The order denying defendant's section 1473.7 motion to vacate is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.