Opinion
E069060
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. SOMPORN GUY, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1310604) OPINION APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Somporn Guy pled guilty to one count of cultivating marijuana. (Health & Saf. Code, § 11358, count 1.) In exchange, a trial court dismissed a possession of marijuana for sale charge (Health & Saf. Code, § 11359, count 2) and granted defendant 36 months of probation, under specified conditions. Subsequently, the court reduced count 1 to a misdemeanor under Proposition 64. (Health & Saf. Code, § 11361.8, subd. (b).) On January 1, 2017, Penal Code section 1473.7 went into effect. It permits a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant's ability to understand the immigration consequences of the plea. (§ 1473.7.) Defendant filed a motion to vacate her conviction under section 1473.7. The court denied the motion.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends that the court abused its discretion by denying her motion under section 1473.7. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant entered a guilty plea, the statement of facts is taken from the preliminary hearing transcript.
On September 18, 2013, police officers executed a search warrant on defendant's residence and found approximately 169 marijuana plants that were growing in the ground, approximately 58 pounds of processed marijuana hanging in drying rooms, two vacuum sealers, packaging, several digital scales, a ledger with pay/owe sheets in it, and six cell phones. Defendant was on the property, and she was arrested. After waiving her Miranda rights, defendant told the police she was paid $50 a day to tend the marijuana plants. She said she was originally contacted to receive or attain a medical marijuana license to grow marijuana for sale.
Miranda v. Arizona (1966) 384 U.S. 436.
On December 18, 2013, the Riverside County District Attorney filed an information alleging that defendant cultivated marijuana (Health & Saf. Code, § 11358, count 1) and unlawfully possessed marijuana for sale (Health & Saf. Code, § 11359, count 2).
On February 18, 2014, defendant entered into a plea agreement and pled guilty to count 1. Defendant initialed the box next to item number B.4., which states: "If I am not a citizen of the United States, I understand that this conviction 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." At the end of the guilty plea form, defendant signed her name beneath the statement, "I have read and understand this entire document. I waive and give up all of the rights that I have initialed. I accept this Plea Agreement." Defendant's trial counsel also signed the form beneath the statement, "I am the attorney for the defendant. I am satisfied that (1) the defendant understands his/her constitutional rights and understand[s] that a guilty plea would be a waiver of these rights; (2) the defendant has had an adequate opportunity to discuss his/her case with me, including any defenses he/she may have to the charges; and (3) the defendant understands the consequences of his/her guilty plea. I join in the decision of the defendant to enter a guilty plea."
At the taking of the plea, the court asked defendant if she went over the legal rights on the plea form with her attorney, if she understood her rights, and if she initialed and signed the form. Defendant replied that she had. She then orally entered a plea of guilty to count 1. The court asked if defense counsel joined in the plea, and she did. The court accepted the plea, finding that defendant knowingly, intelligently, and voluntarily entered into it and that there was a factual basis. The court dismissed count 2 and then released defendant on probation.
On March 3, 2015, the United States Department of Homeland Security (DHS) issued a notice for defendant to appear in removal proceedings. The notice alleged that she was not a citizen of the United States, but was a citizen of Thailand. It further alleged that, on December 7, 1988, she was convicted in North Carolina of the offense of selling and delivering marijuana and was sentenced to two years in prison. It also alleged that, on February 18, 2014, she was convicted in Riverside County Superior Court of the offense of cultivation of marijuana. The notice alleged that defendant was subject to removal because she was convicted of violating a law relating to a controlled substance, "other than a single offense involving possession for one's own use of 30 grams or less of marijuana," in violation of section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA) (8 U.S.C. § 1227). It also alleged she was subject to removal because she was convicted of an aggravated felony, an offense relating to the illicit trafficking of a controlled substance, in violation of section 237(a)(2)(A)(iii) of the INA (8 U.S.C. § 1227). On May 31, 2016, an immigration judge issued an order for defendant's removal to Thailand. Defendant appealed the order, and the case is currently pending.
On January 25, 2016, defendant filed a writ of habeas corpus in this court (case No. E065228) alleging that she received ineffective assistance of counsel when her attorney failed to inform her of the immigration consequences of her plea. We summarily denied the writ petition.
We take judicial notice of the records in appellate case No. E065228. (Evid. Code, § 452, subd. (d).) --------
On June 1, 2017, defendant filed a motion to vacate her conviction, pursuant to section 1473.7. She asserted her conviction was invalid because her trial counsel did not adequately investigate the immigration consequences of the guilty plea, did not accurately advise her of the immigration consequences of the plea, and did not attempt to obtain an immigration safe plea bargain. In support of the motion, she submitted her counsel's case notes, a copy of the DHS notice to appear in immigration court, the reporter's transcript from the preliminary hearing, and a declaration from the counsel representing her in the immigration removal proceedings. The court held a hearing on the motion, and defendant testified on her own behalf. After hearing argument from counsel, the court first observed that this case was more complex than most, since defendant had a prior conviction for a drug-related offense in North Carolina. The court noted there were immigration circumstances in that case, under which defendant received some type of pardon and was not deported; however, neither party provided much detail. Nonetheless, that case led the court to analyze the current matter, in which the court recalled that defendant stated she knew this conviction would affect her. The court concluded that defendant was not a person who did not know there would be consequences. It then noted that defendant asked her trial counsel if the conviction would affect her, and her counsel said she did not know. The court incidentally noted that defendant's conviction was reduced from a felony to a misdemeanor. It went on to recognize that defendant's plea counsel signed the plea agreement, affirmatively stating that she had gone over the consequences of the plea, and defendant understood them. The court stated that defendant was now "sort of sidestep[ping] this" by saying her attorney did not advise her of the consequences. Furthermore, the court stated that the defense attorney did not necessarily need to know the specific consequences, but just that there would be consequences, and she was required "to advise the defendant of that." Defense counsel said that defendant never stated she knew of the consequences. However, the court reiterated that defendant stated she knew the conviction would affect her. The court then found that defendant had failed to meet her burden of showing by a preponderance of the evidence that she received inadequate counsel, and it denied the motion.
ANALYSIS
The Court Properly Denied Defendant's Motion
Defendant argues that the court abused its discretion in denying the motion to vacate her conviction under section 1473.7. She contends that she was deprived of effective assistance of counsel when her counsel failed to clearly advise her about the immigration consequences of her plea and she, therefore, did not meaningfully understand them. Defendant further claims she was entitled to be given "the specific and clear advice . . . [that] her plea to marijuana cultivation would almost certainly result in deportation." She further asserts she proved, by a preponderance of the evidence, that if she had known she would be deported if she pled guilty, she would have gone to trial. We find no abuse of discretion.
Section 1473.7, which became effective on January 1, 2017, provides that a person who is no longer imprisoned may move to vacate a judgment if the "conviction or sentence 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." (§ 1473.7, subd. (a)(1), italics added.) Thus, a defendant is required to demonstrate that he or she suffered prejudicial error. (§ 1473.7, subd. (a)(1).) "The 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)." (§ 1473.7, subd. (e)(1).)
"Ineffective assistance of counsel that damages a defendant's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to relief under section 1473.7. [Citation.] To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) In order to show prejudice from counsel's alleged deficient performance in connection with the entry of a plea, a defendant "must show 'that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty' [citation] to the charge . . . which subjected him to . . . deportation." (People v. Patterson (2017) 2 Cal.5th 885, 901 (Patterson).) Thus, prejudice must be assessed at the time a defendant enters his plea.
Defendant essentially argues that she was inadequately advised of the immigration consequences of her plea and was prejudiced because she would have gone to trial if she had been advised that she would be deported. She also argues that her counsel did not attempt to negotiate an alternative disposition that would have been immigration safe. Defendant contends that her trial court's performance was defective under Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). In that case, the United States Supreme Court stated 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. But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." (Id. at p. 369.)
Defendant testified at the hearing that her attorney did not tell her anything about deportation consequences when she entered her guilty plea. She further testified that she asked whether signing the plea form would "affect [her] deportation," and her attorney said "she did not know." However, as the court noted, defendant signed the plea agreement, acknowledging that she understood that this conviction "may have the consequences of deportation." The court further noted that defendant had a prior drug conviction in North Carolina, for which she faced deportation before being granted a pardon; thus, she was aware of immigration consequences to criminal convictions. Defendant asserts, and we agree, that the court was apparently mistaken that she stated she "knew [the plea] would affect her." The transcript does not reflect any such statement. Regardless, defendant's motion was primarily based on her self-serving testimony that her plea counsel did not properly advise her of immigration consequences. The court simply did not find her testimony credible in light of the signed plea agreement and her prior immigration proceeding. We note that the record does not contain a declaration from defendant's plea counsel. Moreover, defendant's current attorney did not provide a declaration in support of the section 1473.7 motion showing that plea counsel was unable or unwilling to provide a declaration.
Even if defendant had satisfied the first prong of the Strickland test, to satisfy the second prong, she had to show by a preponderance of the evidence that, if properly advised, she would not have entered the plea bargain. (People v. Martinez (2013) 57 Cal.4th 555, 559, 567 (Martinez); Patterson, supra, 2 Cal.5th at p. 901.) In other words, defendant had to "convince the court . . . she would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow." (Martinez, at p. 565.) " 'Surmounting Strickland's high bar is never an easy task,' [citation], and the strong societal interest in finality has 'special force with respect to convictions based on guilty pleas.' [Citation.] Courts 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. United States (2017) ___ U.S. ___ [137 S.Ct. 1958, 1967]; see Martinez, at p. 565 ["[T]he defendant bears the burden of establishing prejudice" and "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."].)
In this case, defendant did testify that if she had been told she was going to be deported as a result of her plea, she would have gone to trial. However, she did not present any evidence or argument on the likelihood of her success at trial. She also did not present any evidence or argument on the potential consequences after a trial compared to the consequences flowing from the guilty plea. We note that defendant previously waived her Miranda rights and admitted to the police she was being paid to grow marijuana. Therefore, her likelihood of success at trial was slim. We further note the DHS notice alleged that defendant was subject to removal because she was convicted of violating a law relating to a controlled substance, in violation of section 237(a)(2)(B)(i) of the INA. (8 U.S.C. § 1227.) Thus, the charge against her apparently was for a deportable controlled substance offense. Had she gone to trial and been convicted, defendant would have been subject to a jail or prison term and still would have been subject to removal proceedings. Furthermore, as part of the plea agreement, the court dismissed a charge of possession of marijuana for sale. (Health & Saf. Code, § 11359, count 2.) By pleading guilty, she avoided incarceration and had only one conviction, rather than two.
To the extent defendant is claiming her counsel was constitutionally ineffective for failing to defend against the immigration consequences of her plea by negotiating an immigration safe disposition, defendant offers no evidence to support her position. There is no indication in the record that the prosecution was willing to agree to an immigration safe disposition. Similarly, there is no suggestion that defendant's plea counsel did not attempt to negotiate such a disposition. Instead, defendant merely asks us to presume counsel did not do so. We cannot make any such presumption. An 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. (People v. Stephenson (1974) 10 Cal.3d 652, 661 ["The proof of this inadequacy or ineffectiveness must be a demonstrable reality and not a speculative matter."].)
We conclude defendant has not established that her counsel's allegedly deficient performance prejudiced her or, concomitantly, that the trial court abused its discretion in denying her motion to vacate her conviction under section 1473.7.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.