Opinion
G055810
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO GUZMAN, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Robin Urbanski and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 97WF1387) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part, reversed in part, and remanded with directions. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Robin Urbanski and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 1997, defendant Rodolfo Guzman pleaded guilty to possessing marijuana and methamphetamine for sale (Health & Saf. Code, §§ 11359, 11378), and sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The trial court placed Guzman on probation for three years.
In August 2017, Guzman filed a motion to vacate his convictions because the trial court failed to provide mandatory immigration-related advisements (Penal Code section 1016.5; all further statutory references are to the Penal Code, unless otherwise stated), and his trial attorney failed to advise him of the immigration consequences of pleading guilty, which damaged his ability to meaningfully understand the actual or potential immigration consequences of his plea (§ 1473.7, subdivision (a)). The trial court denied the motion.
We initially affirmed the trial court's order denying Guzman's motion to vacate his convictions under section 1016.5, concluding the record demonstrated the sentencing court substantially complied with section 1016.5. We also concluded Guzman was not entitled to relief under section 1473.7 because the plea form shows Guzman was advised about immigration consequences of pleading guilty, and even if Guzman had received a deficient advisement, he failed to show he would have not entered a guilty plea had he been properly advised.
After issuing our opinion, the California Supreme Court transferred the matter to us with directions to vacate our decision and reconsider the matter in light of Assembly Bill No. 2867 (AB 2867), as interpreted by People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho). AB 2867 amended section 1473.7, and the amendments are fully retroactive. (Camacho, supra, 32 Cal.App.5th at pp. 1007-1009.) The amendments permit a petitioner to seek relief under section 1473.7 on the basis of his own error or any counsel error, even if counsel's error does not constitute constitutional ineffectiveness. (Id. at p. 1009.)
AB 2867 does not affect our ruling on Guzman's section 1016.5 motion. We affirm the trial court's denial of the section 1016.5 motion. Because the parties were justifiably ignorant about AB 2867, Guzman did not assert other errors that might entitle him to relief under section 1473.7. Accordingly, we conditionally reverse the order denying Guzman's section 1473.7 motion, and remand the matter for Guzman to amend the motion, if he wishes, and for the trial court to rule on the amended motion.
I
FACTUAL AND PROCEDURAL BACKGROUND
In his motion to vacate his three drug convictions, Guzman claimed (1) the trial court failed to provide the immigration-related advisements mandated by section 1016.5, and (2) his trial attorney provided constitutionally ineffective assistance because he informed Guzman that he would not be deported as a result of entering a guilty plea. According to Guzman, he would not have pleaded guilty in June 1997 had he known his plea would result in adverse immigration consequences.
In a supporting declaration, dated August 3, 2017, Guzman asserted that "avoiding deportation was always my biggest concern" and that his lawyer told him that he would not be deported based on his guilty plea. Guzman further asserted that "had I been correctly advised that I would be subject to deportation proceedings and prevent[ed] . . . from obtaining lawful residency, I would have requested an attorney to assist me in negotiating a safer disposition. If an immigration-safe disposition was not possible, I would have demanded to go to trial." He further stated, "I have continuously lived in the United States since 1985 and worked as a contractor and gardener. I have been married for more than 20 years and have three children ([aged] 20, . . , 18, and . . . 7). Our youngest, . . , is autistic."
The motion to vacate attached copies of the plea form and the relevant minute order. On the plea form, Guzman initialed the box next to the statement, "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." He also signed under and initialed the box next to the statement, "I declare under penalty of perjury that I have read, understood, and personally initialed each item above and discussed them with my attorney. . . ." His attorney signed under the following statement: "I am attorney of record and I have explained each of the above rights to the defendant." The deputy district attorney did not sign the form. In the minute order, the box reflecting that the court advised Guzman of the "conseq[uences] of [the guilty] plea if not a citizen" was not checked. However, the attached "Certified Plea Minute Order" reflected that the court found Guzman understood "The nature of the charge(s) and the consequences of the plea."
Guzman did not attach a declaration from his former trial counsel. But he attached a declaration from his current attorney, Cole Williams, who stated that he contacted Guzman's former lawyer. According to Williams, Guzman's former lawyer informed him that "he does not have any independent recollection of Mr. Guzman's case." Williams also stated that he could not locate any notes or a reporter's transcript of the plea hearing.
Following a hearing, the trial court denied Guzman's motion to vacate his convictions and explained its reasoning in a written ruling. The court determined that the judge who accepted Guzman's guilty plea substantially complied with section 1016.5 because Guzman's initialing and signing of the plea form indicated that he had received the required immigration-related advisements.
The trial court also determined Guzman was not entitled to relief under section 1473.7. It found that Guzman failed to prove his former attorney was constitutionally ineffective. The court found the record contradicted Guzman's assertion that his former attorney misadvised Guzman that he would not be deported if he pleaded guilty. In addition, the court determined that Guzman could not show prejudice because "[n]othing in the available record indicates that [Guzman] was concerned about his immigration consequences at the time of the plea." The court concluded Guzman's "primary concern was getting out of custody as soon as possible," based in part on his prompt decision to plead guilty. The court noted, "Petitioner's maximum exposure for his crimes was four years, eight months in state prison. Petitioner received only 120 days in jail and probation."
II
DISCUSSION
A. Motion to Vacate Conviction Under Section 1016 .5
Section 1016.5, subdivision (a), provides that "[p]rior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions 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, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty." (§ 1016.5, subd. (b).) "To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.]" (People v. Totari (2002) 28 Cal.4th 876, 884.)
Guzman contends the record does not show the sentencing court verbally advised him about the immigration-related consequences of entering the guilty plea. But a verbal advisement is not required. "'[A] validly executed waiver form is a proper substitute for verbal admonishment by the trial court. [Citation.]' [Citations.] The advisement need not be in the exact language of section 1016.5 and can be in writing." (People v. Araujo (2016) 243 Cal.App.4th 759, 762.) Here, the plea form advised Guzman that "the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Those advisements track the advisements mandated by section 1016.5.
Guzman contends section 1016.5 requires the sentencing court to "satisf[y] itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel." (People v. Ramirez (1999) 71 Cal.App.4th 519, 522.) We agree, but the record shows the court substantially complied with this requirement. The plea form indicated that Guzman understood and had the opportunity to discuss the advisements with counsel. Specifically, Guzman initialed and signed under the statement, "I declare under penalty of perjury that I have read, understood, and personally initialed each item above and discussed them with my attorney. . . ." His counsel signed under the statement, "I am attorney of record and I have explained each of the above rights to the defendant." The trial court substantially complied with section 1016.5, as the required advisements were included in the plea form, which Guzman acknowledged reading, understanding, initialing, and signing. Accordingly, Guzman was not entitled to relief under section 1016.5. B. Motion to Vacate Under Section 1473 .7
Section 1473.7, subdivision (a), permits a person no longer imprisoned or restrained to ask the trial court to vacate a conviction if the 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." (Id., subd. (a)(1).) The court must hold a hearing on the motion, and if the moving party establishes by a preponderance of the evidence he or she is entitled to relief, the court shall grant the motion to vacate the conviction. (Id., subds. (d) & (e)(1).) We review de novo the trial court's denial of a section 1473.7 motion. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).)
The "'error damaging the moving party's ability to meaningfully understand, . . . or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty'" includes constitutionally ineffective assistance of counsel. (Ogunmowo, supra, 23 Cal.App.5th at p. 75.) In addition, any counsel error that prejudicially damages the defendant's ability to meaningfully understand the actual or potential adverse immigration consequences of a guilty plea would entitle a defendant to relief under section 1473.7, even if the error does not amount to a claim of ineffective assistance of counsel. (Camacho, supra, 32 Cal.App.5th at pp. 1008-1009.) Finally, a defendant's own error may entitle him to relief under section 1473.7. (See Camacho, supra, 32 Cal.App.5th at p. 1009 ["error" under section 1473.7 includes "defendant's own error in believing that a negotiated plea calling for no time in custody would avoid making him deportable, and in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States"]; accord, People v. Mejia (2019) 36 Cal.App.5th 859, 871.)
Guzman has not shown his trial counsel was ineffective. Guzman asserted Douveas affirmatively misadvised him that he would not suffer deportation as a result of entering the guilty plea. (See Ogunmowo, supra, 23 Cal.App.5th at p. 77 ["Affirmatively misadvising a client that he will not face immigration consequences as a result of a guilty plea in a drug trafficking case—when the law states otherwise—is objectively deficient performance under prevailing professional norms."].) But the trial court, based on the record, found that the former attorney properly advised Guzman he could face deportation as a result of entering the guilty plea. The court's credibility determination is amply supported by the plea form. As noted, in the plea form Guzman initialed the box next to the statement, "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." On the plea, both Guzman and his former attorney also stated under penalty of perjury that they discussed those immigration consequences.
Section 1473.7, however, was amended after briefing was completed in this matter and the parties did not have the benefit of the Camacho court's construction of those amendments. Specifically, the Camacho court concluded the amendments were retroactive because they merely clarify a defendant need not establish ineffective assistance of counsel to show entitlement to relief under section 1473.7. (Camacho, supra, 32 Cal.App.5th at pp. 1007-1009.) It also rejected the Attorney General's claim that because "the only ground asserted for the motion was ineffective assistance of counsel . . . that defendant should be held to his original theory." (Id. at p. 1007.) As a result of the parties' justifiable ignorance, Guzman did not assert other errors that might entitle him to relief under section 1473.7, such as Guzman's "own error . . . in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States." (Id. at p. 1009.) Accordingly, we will conditionally reverse the order denying Guzman's section 1473.7 motion, and remand the matter for Guzman to amend the motion, if he wishes, and for the trial court to rule on the amended motion. If Guzman declines to amend his motion within a reasonable time, the trial court shall reinstate the order denying his section 1473.7 motion.
III
DISPOSITION
The order denying Guzman's motion to vacate his plea under section 1016.5 is affirmed. The order denying Guzman's motion to vacate his plea under section 1473.7 is conditionally reversed. The matter is remanded to the superior court for further proceedings consistent with this opinion.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.