Opinion
F076706
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS RUIZ GARCIA, Defendant and Appellant.
Nutall Coleman & Drandell, Roger T. Nutall and Jim H. Vorhies, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, David Andrew Eldridge and Cavan M. Cox II, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR033871)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Nutall Coleman & Drandell, Roger T. Nutall and Jim H. Vorhies, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, David Andrew Eldridge and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Jesus Ruiz Garcia (defendant) appeals from the denial of his motion to vacate a conviction, pursuant to Penal Code section 1473.7, due to inadequate advice about immigration consequences. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On December 15, 2008, Madera law enforcement officers searched defendant, his residence, his van, and his car pursuant to a search warrant. A plastic bag containing 0.1 gram of crystal methamphetamine was found in the center console of the van. Eleven plastic bags containing crystal methamphetamine in amounts ranging from 0.1 gram to 0.4 grams were found under a plastic mat in the rear of the van. A black plastic bag containing 4.3 grams of crystal methamphetamine was found in a work boot in the car. Cash in the amount of $862 was found on defendant's person. After being advised of his rights, defendant said both vehicles were his, and that he had been selling methamphetamine for about a month. Defendant said he sold the bags in the van for about $20 each.
The facts of the underlying offense are taken from the preliminary hearing transcript. The statement of facts contained in defendant's opening brief contains additional details, but no citations to the record as required by rule 8.204(a)(1)(C) of the California Rules of Court.
On January 8, 2009, defendant was charged by information with transportation or sale of a controlled substance, to wit, methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1) and possession for sale of a controlled substance, to wit, methamphetamine (id., § 11378; count 2). On March 9, 2009, he pled no contest to count 2 on condition that he be placed on probation for five years and serve up to 365 days in jail.
As part of the change of plea process, defendant initialed the applicable paragraphs of the "PLEA FORM, WITH EXPLANATIONS AND WAIVER OF RIGHTS—FELONY," including the following provision:
"3 CONSEQUENCES OF MY PLEA [¶] ... [¶]
"i. Immigration Consequences
"I understand that if I am not a citizen of the United States, my plea of guilty or no contest may or, with certain offenses, will result in my deportation, exclusion from reentry to the United States, and denial of naturalization and amnesty and that the appropriate consulate may be informed of my conviction. The offenses that will result in such immigration action include, but are not limited to, an aggravated felony, conspiracy, a controlled substance offense, or firearm offense, and, under certain circumstances, a moral turpitude offense." (Boldface in original.)
Defendant signed a statement that he had read, or had had read to him, the form, and that he had discussed each item with his attorney. His attorney, Martin Jones, signed a statement that he had reviewed the form with defendant and explained each of the items to him, that he had answered all of defendant's questions regarding his rights and the other items in the form, and that he had explained, inter alia, the consequences of the plea. A Spanish language interpreter signed a statement attesting that the interpreter had been sworn or had a written oath on file, and that he truly translated the form to defendant, defendant stated he understood the contents of the form, and defendant then initialed and signed the form.
At the change of plea hearing, defendant was assisted by the certified Spanish language interpreter who assisted him in filling out the plea form. The court informed defendant that if he was not a citizen, the conviction could result in his deportation from the United States, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. When the court asked if he understood, defendant replied, "Yes." The court confirmed with defendant that the plea advisement form was read to him in Spanish and that he understood what was read to him. The court also confirmed with defendant that he had had enough time to talk about the case with his attorney, and that his attorney had answered all of his questions.
On April 20, 2009, imposition of sentence was suspended, and defendant was placed on probation for five years on various terms and conditions, including that he serve 90 days in jail. On February 27, 2015, his request for relief pursuant to section 1203.4 was granted, his no contest plea was withdrawn and a not guilty plea was entered, and his conviction was dismissed.
On September 20, 2016, defendant, now represented by a different attorney, filed a motion to vacate the judgment (§ 1016.5) on the ground he was not properly advised of the specific immigration consequences of his plea. Defendant alleged ineffective assistance of counsel on Jones's part. Submitted in support of the motion was a declaration in which defendant stated under penalty of perjury that (1) prior to his plea, his attorney did not advise him that the plea and conviction would have the specific consequence of deportation, exclusion from admission to the United States, or denial of naturalization; (2) defendant faced deportation as a consequence of his conviction; (3) at the time of the plea, defendant was unaware that by entering the plea, he would be subject to said immigration consequence; and (4) had he been aware of the immigration consequence, he would not have entered the plea. Also submitted was a declaration from Jones, in which he stated (1) he had no recollection of this case or records pertaining to the case in his possession; (2) he recognized his signature on the plea advisement form; and (3) it was his custom and practice in 2009 to advise defendants, when assisting them with the form, that if they were not a citizen, their plea and conviction could have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The People opposed the motion, arguing it was untimely and defendant was properly advised of potential immigration consequences at the time of his plea. On October 6, 2016, the motion was denied. Defendant's timely appeal subsequently was abandoned.
On January 24, 2017, defendant filed a motion to vacate his conviction (§ 1473.7) on the ground he was not adequately advised of the specific immigration consequences of his plea. Defendant asserted that he was unable meaningfully to understand and defend against, or knowingly accept, the actual or potential adverse immigration consequences of his plea, and he claimed Jones rendered ineffective assistance of counsel. In support, defendant presented his and Jones's declarations that were filed in conjunction with the previous motion to vacate. The People opposed the motion on the ground it was untimely.
The motion was argued on July 10 and September 29, 2017. No testimony was presented at either hearing. At one point during argument concerning whether defendant was prejudiced, the court stated: "... I'm not considering the likelihood of [defendant's] success at trial in evaluating whether there was prejudice or not. The issue here is that he was denied the process. He was denied the trial based on counsel's presumably or arguably deficient advice. [¶] So the issue is not whether he would have been successful at trial or not. The issue is—I'm accepting [defendant's] statement that he would not have entered into the plea had he known of the immigration consequences. My question is: What evidence in the record is there ... to corroborate the post hoc assertion?" Defense counsel responded that defendant was someone with no prior criminal history who likely would have been placed on probation in any event, and so who received little if any sentencing benefit from the plea; yet he nevertheless went forward with the plea. Counsel argued that the only rational explanation was that he was not advised of and did not understand the immigration consequences of the plea, especially in light of Jones's declaration that it was his practice to give the section 1016.5 advisements and not that it was his practice to offer specific immigration advice.
On October 27, 2017, the trial court denied defendant's motion. The court found the motion was timely, and that Jones's performance was deficient. It found prejudice lacking, however, in that there was no credible, independently objective evidence corroborating defendant's self-serving statements in his declaration; hence, defendant failed to establish a reasonable probability he would not have accepted the offered plea agreement had he been properly advised of the specific immigration consequences of the plea by his trial counsel.
DISCUSSION
California has long required that when a defendant in a criminal case is considering pleading guilty or no contest, he or she must be advised of the potential immigration consequences of such a plea. Thus, section 1016.5, subdivision (a) has provided, since its enactment in 1977: "Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, ... the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." If the advisement is not given and the defendant shows conviction of the offense to which he or she pled may have one of the specified consequences, the court, on the defendant's motion, is required to vacate the judgment and permit the defendant to withdraw the plea of guilty or no contest and enter a plea of not guilty. (Id., subd. (b).)
Because the statutory advisement only tells a defendant a conviction may have specified immigration consequences, the giving of the advisement does not bar a noncitizen defendant from moving to withdraw a plea due to ignorance of his or her specific immigration consequences. (People v. Patterson (2017) 2 Cal.5th 885, 889 (Patterson); see § 1018.) As the Supreme Court observed: "A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal. Thus, ... the standard section 1016.5 advisement ... 'cannot be taken as placing [the defendant] on notice that, owing to his particular circumstances, he faces an actual risk of suffering such.' [Citation.] And for many noncitizen defendants deciding whether to plead guilty, the 'actual risk' that the conviction will lead to deportation—as opposed to general awareness that a criminal conviction 'may' have adverse immigration consequences—will undoubtedly be a 'material matter[]' that may factor heavily in the decision whether to plead guilty." (Patterson, supra, at pp. 895-896.)
Moreover, "receipt of the section 1016.5 advisement does not bar a criminal defendant from challenging his conviction on the ground that his counsel was ineffective in failing to adequately advise him about the immigration consequences of entering a guilty plea." (Patterson, supra, 2 Cal.5th at p. 896.) To succeed on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) a reasonable probability exists that but for counsel's errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
The United States Supreme Court addressed the intersection between advisement of immigration consequences and the effective assistance of counsel in criminal prosecutions in Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). The high court noted that changes in federal immigration law had made deportation virtually inevitable for noncitizens convicted of particular classes of criminal offenses; hence, "[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important," as removal is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. (Id. at p. 364.)
As do many other courts, we use the terms "deportation" and "removal" interchangeably.
Addressing the first part of Strickland's test, the court concluded: "The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." (Padilla, supra, 559 U.S. at p. 367.) The court acknowledged immigration law can be complex. Accordingly, it determined, "When 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. But when the deportation consequence is truly clear, as it [is in cases involving all controlled substances convictions, for which removal is presumptively mandatory except for the most trivial marijuana possession offenses], the duty to give correct advice is equally clear." (Id. at p. 369, fn. omitted.) The high court did not decide whether Padilla had shown prejudice under Strickland's second prong, as required to entitle him to relief on his claim. (Padilla, supra, at p. 369.) It noted, however, that "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." (Id. at p. 372.)
Subsequently, effective January 1, 2016, the state Legislature codified Padilla and related California case law. (§ 1016.2, as added by Stats. 2015, ch. 705, § 1.) At the same time, it mandated that defense counsel provide "accurate and affirmative advice" about the immigration consequences of a proposed disposition and defend against those consequences, and that the prosecution consider avoidance of adverse immigration consequences in the plea negotiation process. (§ 1016.3, subds. (a) & (b), as added by Stats. 2015, ch. 705, § 2.) The Legislature made it clear, however, that the new requirements did not change the requirements of section 1016.5. (§ 1016.3, subd. (c).)
The Legislature followed the statutory codification of Padilla with the enactment, effective January 1, 2017, of section 1473.7. (Stats. 2016, ch. 239, § 1.) As it existed at the time of the hearings in the present case, the statute provided, in pertinent part: "(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction ... for ... the following reason[]: [¶] (1) The conviction ... is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere."
Courts uniformly interpreted section 1473.7, as enacted, under the Strickland standards for determination of constitutional ineffective assistance of counsel claims. (People v. Mejia (2019) 36 Cal.App.5th 859, 869 (Mejia).) Effective January 1, 2019, the Legislature added the following clarification to subdivision (a)(1) of section 1473.7 (Stats. 2018, ch. 825, § 2): "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel."
Because the amendment is a clarification of existing law, at least two Courts of Appeal have held—one with the agreement of both parties—it therefore applies to nonfinal judgments. (Mejia, supra, 36 Cal.App.5th at p. 865; People v. Camacho (2019) 32 Cal.App.5th 998, 1007 (Camacho).) The Attorney General does not dispute its applicability to defendant's case. In the trial court, defendant argued ineffective assistance of counsel, but also based his claim on the grounds of section 1473.7, subdivision (a)(1). Accordingly, even though defendant's motion was based on errors by his counsel at the time he pled no contest, he need not establish a Sixth Amendment violation under Strickland standards. (Camacho, supra, 32 Cal.App.5th at p. 1008.) Rather, "to establish a 'prejudicial error' under section 1473.7, [defendant] need only show by a preponderance of the evidence: 1) he did not 'meaningfully understand' or 'knowingly accept' the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to 'defend against' the charges." (Mejia, supra, 36 Cal.App.5th at p. 862.)
At all times, section 1473.7, subdivision (e)(3) has provided that if a court grants the motion to vacate the conviction, the court shall permit the moving party to withdraw his or her plea of guilty or no contest. A decision whether to deny a motion to withdraw a plea is reviewed for abuse of discretion (e.g., People v. Fairbank (1997) 16 Cal.4th 1223, 1254), as is a motion to vacate a conviction under section 1016.5 (e.g., People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192). Insofar as a motion to vacate a conviction under section 1473.7 is based on a claim the defendant was deprived of the constitutional right to the effective assistance of counsel, however, the matter is subject to our independent review. (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1132; People v. Fryhaat (2019) 35 Cal.App.5th 969, 975; People v. Tapia (2018) 26 Cal.App.5th 942, 950 (Tapia); People v. Olvera (2018) 24 Cal.App.5th 1112, 1116 (Olvera); People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.) Even when applying the de novo standard of review, we defer to the trial court's factual determinations if they are supported by substantial evidence, i.e., evidence that is reasonable, credible, and of solid value. (Tapia, supra, 26 Cal.App.5th at p. 951; Olvera, supra, 24 Cal.App.5th at p. 1116.) The trial court is the trier of fact and the judge of the credibility of witnesses and/or affiants (People v. Quesada (1991) 230 Cal.App.3d 525, 533, superseded by statute on another ground as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206, fn. 5), and "[w]e do not reweigh the evidence or reevaluate witness credibility" (Tapia, supra, 26 Cal.App.5th at p. 951).
Whatever Jones's omissions may have been, defendant has not established, by a preponderance of the evidence, the prejudice prong of Strickland (see In re Scott (2003) 29 Cal.4th 783, 811) or, with respect to section 1473.7, subdivision (a)(1), that prejudicial error damaged his ability to meaningfully understand or knowingly accept the immigration consequences of his plea (see Mejia, supra, 36 Cal.App.5th at p. 871). The written plea form advised, in no uncertain terms, that defendant's guilty or no contest plea to a controlled substance offense would result in defendant's deportation, exclusion from reentry to the United States, and denial of naturalization and amnesty. An interpreter, who had a written oath on file, certified having translated the form to defendant and that defendant stated he understood the form's contents. Defendant signed a statement that the form had been read to him, and that by putting his initials next to the applicable items, he was indicating he understood and agreed with what was stated in each item.
Where section 1016.5 is concerned, "a court 'may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment.' " (People v. Gutierrez (2003) 106 Cal.App.4th 169, 175; see People v. Araujo (2016) 243 Cal.App.4th 759, 762; People v. Quesada, supra, 230 Cal.App.3d at pp. 535-536.) We see no reason a court passing upon a claim of ineffective assistance of counsel or a motion to vacate brought pursuant to section 1473.7, cannot similarly rely on the form as evidence concerning advisements given the moving party in such a proceeding. Regardless of whether an advisement from a source other than defense counsel is relevant to the question whether counsel's performance was deficient (see U.S. v. Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781, 787), it is manifestly relevant to the issue of prejudice (see U.S. v. Kayode (5th Cir. 2014) 777 F.3d 719, 728-729).
This is not a case in which a defendant for whom the possibility of deportation was a determining factor in deciding whether to plead guilty was erroneously advised or led to believe the plea would not subject him or her to deportation. (See Lee v. United States (2017) 582 U.S. ___, ___, ___, ___-___ [137 S.Ct. 1958, 1962, 1963, 1965-1967].) Although defendant was also advised his plea could have the consequence of deportation (see Mejia, supra, 36 Cal.App.5th at p. 863; Camacho, supra, 32 Cal.App.5th at p. 1003; see also Patterson, supra, 2 Cal.5th at p. 898), the plea form clearly and explicitly stated the immigration consequences for a controlled substance offense, and defendant indicated he understood and agreed (see Olvera, supra, 24 Cal.App.5th at p. 1117; People v. Perez (2018) 19 Cal.App.5th 818, 829-830).
"The admonition was boilerplate, but it was unequivocal and accurate." (Olvera, supra, 24 Cal.App.5th at p. 1117; see 8 U.S.C. § 1227(a)(2)(B)(i).)
In his reply brief, defendant cites Lorenzo v. Sessions (9th Cir. 2018) 902 F.3d 930, 939940 as authority for the proposition that the immigration advisement on the plea form misstated the law because a violation of Health and Safety Code section 11378 does not qualify as a deportable controlled substance offense under the foregoing federal statute. If this were so, defendant's appeal would appear to be moot since he would be in no danger of deportation. Before defendant's reply brief was filed, however, the opinion was withdrawn, and an unpublished memorandum was filed in its place. (Lorenzo v. Whitaker (9th Cir. 2019) 913 F.3d 930.) The unpublished memorandum does not constitute precedent. (U.S. Cir. Ct. Rules (9th Cir.), rule 363; see In re Hernandez (2019) 33 Cal.App.5th 530, 542.)
Moreover, as the Supreme Court has stated in the context of claimed ineffective assistance of counsel concerning a decision whether to reject a proffered plea bargain: "[A] defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted 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. A contrary holding would lead to an unchecked flow of easily fabricated claims." (In re Alvernaz (1992) 2 Cal.4th 924, 938.) This statement applies equally to the proceedings before us. (See People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 224; see also People v. Vivar (2019) 43 Cal.App.5th 216, 230, review granted Mar. 25, 2020, S260270.)
Here, defendant presented no independent corroboration of his declaration that he would not have entered his plea had he been aware of its immigration consequences. Neither the record contemporaneous with the change of plea proceedings nor Jones's declaration suggests immigration consequences were of particular concern to defendant. (Cf. Lee v. United States, supra, 582 U.S. at pp. ___, ___-___ [137 S.Ct. at pp. 1963, 1967-1968]; Camacho, supra, 32 Cal.App.5th at p. 1009; People v. Ogunmowo, supra, 23 Cal.App.5th at p. 73.) In his supplemental brief, defendant contends his attorney at the time of the hearing on the motion to vacate the conviction rendered ineffective assistance of counsel by failing to have defendant testify at the hearing on the motion in order to more fully establish defendant's ties to the community, and by failing adequately to argue those ties. Because we have no way of knowing what such testimony might have shown, or whether additional argument on the subject could have been made or might have been persuasive, however, defendant's claim of ineffective assistance fails. (See People v. Kipp (1998) 18 Cal.4th 349, 367; People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
According to the probation officer's report, defendant entered the United States illegally in 1996, and claimed to have obtained legal residency in 2008. He was employed fulltime and owned two vehicles. However, all of his immediate family—his mother (his father was deceased), siblings, estranged wife, and children—resided in Mexico. (Cf. Camacho, supra, 32 Cal.App.5th at p. 1011.)
Various members of a single law office have represented defendant from the filing of the original motion to vacate up to and including this appeal. --------
DISPOSITION
The order is affirmed.