Opinion
G057027
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. NAVEED HAMEED, Defendant and Appellant.
Michael Ian Garey and James M. Crawford for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 94NF1210) OPINION Appeal from a judgment and a postjudgment order of the Superior Court of Orange County, Richard J. Oberholzer, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, dismissed in part. Request for Judicial Notice. Granted. Michael Ian Garey and James M. Crawford for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
In November 1995, Naveed Hameed pleaded no contest to 25 counts of grand theft and one count of conspiracy. Hameed did not appear at his sentencing hearing in January 1996: He had fled the country and became a fugitive from justice. The trial court sentenced him in absentia to the maximum term permitted by the plea agreement. Over 20 years later, federal authorities arrested Hameed when he tried to enter the United States from Canada under a false name and date of birth.
In October 2017, nearly 22 years after pleading no contest, Hameed filed a motion to vacate his conviction and withdraw his no contest plea. The trial court denied the motion. Hameed appeals from both the sentence imposed in May 1996 and from the trial court's order denying his motion.
We dismiss the appeal from the sentence and affirm the order denying Hameed's motion to vacate his conviction and withdraw his plea. Hameed's appeal is far too little, and far too late. Hameed's notice of appeal from the sentence was too late—22 years four months too late to be precise—and therefore we lack jurisdiction to consider his challenge to the Cruz waiver in the plea agreement, his sentencing in absentia, and (on appeal from the sentence) his claim of ineffective assistance of counsel. The time deadline for filing a notice of appeal is not extended while a convicted defendant is on the lam.
After People v. Cruz (1988) 44 Cal.3d 1247, 1254.
For similar reasons, Hameed is not, contrary to his contention, entitled to benefit from the repeal of Penal Code former section 12022.6, subdivision (b) (Stats. 1992, ch. 104, § 1) (former section 12022.6(b)), under which he received a two-year sentence enhancement. Hameed's sentence became final over 21 years before former section 12022.6(b) was repealed by its own terms in 2018, and he did not file a notice of appeal until 11 months after the effective date of the repeal.
Undesignated code references are to the Penal Code.
Hameed's motion to vacate his conviction and withdraw his plea was likewise too little and far too late. Hameed did not proceed with due diligence (22 years) in seeking relief under section 1016.5 for the trial court's alleged failure to advise him that his no contest plea might have immigration consequences, and, in any event, the record demonstrates Hameed was given the statutorily required advisement. Hameed did not proceed with reasonable diligence in seeking relief under section 1018 based on his trial counsel's alleged failure to advise him that his no contest plea would make him subject to deportation. He learned his plea could lead to his deportation before the date set for sentencing, but instead of immediately seeking to withdraw the plea, he became a fugitive from justice for over 20 years. The trial court, by finding Hameed failed to show good cause for relief under section 1018, implicitly and with justification found Hameed's uncorroborated declarations not to be credible and disbelieved them. Hameed also sought relief under section 1473.7 but that statute on its face does not apply to him because he is in custody.
FACTS AND PROCEDURAL HISTORY
I.
Facts Leading to Criminal Charges
Hameed is a native of Pakistan and a citizen of Canada. Testimony from the preliminary hearing, conducted in 1994, showed that Hameed had engaged in a scheme, known as a "bust out scam," in which he received large quantities of merchandise, sold the merchandise for cash, then attempted to disappear without paying for it.
Hameed owned and operated a wholesale computer parts business. In March 1994, Hameed traveled to Pakistan. On his return in April 1994, Hameed told his nephew, who was in business with Hameed, that they should "increase the business." Hameed increased his purchase of merchandise. In May 1994, he stopped payment on about 62 checks totaling $1,096,106.26. At the same time, he made wire transfers totaling $300,000 to his personal account at a Pakistani bank. He tried to transfer an additional $900,000 but the bank did not approve the transfer.
In May 1994, law enforcement officers who were surveilling Hameed's warehouse observed employees moving large quantities of merchandise into moving vans. Hameed was arrested the next day. Employees told law enforcement officers the business was not doing well and likely to go bankrupt, Hameed had been ordering much more merchandise than usual, and Hameed was liquidating inventory at below cost. One employee had been ordered to destroy invoices. Sales employees were owed two weeks' back pay and their commission checks had bounced. Law enforcement officers also learned that Hameed and his nephew were planning to start a new business trading in the same merchandise, and Hameed had agreed to sell $400,000 worth of merchandise to his nephew for $50,000.
II.
Criminal Charges and No Contest Plea
In August 1994, Hameed was charged by information with 25 counts of grand theft in violation of section 487 and one count of criminal conspiracy to defraud in violation of section 182, subdivision (a)(4).
In November 1995, during the course of trial, Hameed withdrew his not guilty plea and entered a plea of no contest to all counts and to an enhancement alleged under former section 12022.6(b). Hameed and his trial counsel signed a no contest plea form by which Hameed admitted the charged offenses and enhancement. The form included a clause commonly called a Cruz waiver. That clause was as follows, with strike-throughs indicated and handwritten additions in italics: "Additionally, my lawyer has told me that if I plead [no] contest guilty to the felony charges, enhancements, and prior convictions as listed on this no contest guilty plea document, the Court will sentence me to state prison for the term prescribed by law, which term is four years in the penitentiary, as of the date of sentencing. However, if I do not appear for sentencing, I will be exposed to the maximum term of 9 years 8 months. ___ I waive and give up my right to the make application for probation and request immediate sentence on the date of January 19, 1996, at 8:30 a.m."
Hameed placed his initials on a blank line to the left of the first line of this paragraph. He did not place his initials on the handwritten blank line after the interlineation ending with "9 years 8 months."
Hameed also placed his initials next to a paragraph on the plea form stating: "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."
Hameed waived time for sentencing, and a probation and sentencing hearing was set for January 19, 1996. He failed to appear for the hearing, and the court issued a no-bail bench warrant. On May 3, 1996, the trial court took judicial notice of Hameed's failure to appear, granted the prosecution's motion to sentence Hameed in absentia, and sentenced him to the maximum term of nine years eight months in prison. An abstract of judgment was filed on May 22, 1996.
Over 20 years later, on June 2, 2017, Homeland Security agents in Buffalo, New York detained Hameed when he crossed into the United States from Canada. Hameed had applied for admission to the United States by presenting a Canadian passport with a false name and date of birth.
III.
Motion to Vacate Conviction and Withdraw Plea
In October 2017, Hameed filed a motion pursuant to sections 1016.5 and 1473.7 to vacate his conviction. The motion sought relief on the ground the trial court allegedly did not advise Hameed of the immigration consequences of his plea. With this motion, Hameed submitted a declaration (Hameed's first declaration) stating, "during the plea, the judge did not advise me that I would be deported as a result of my conviction." In December 2017, Hameed filed additional points and authorities in support of a "motion to withdraw plea" arguing, as an additional basis for relief, the Cruz waiver in his plea form was invalid.
Hameed's motion was variously titled "motion to vacate conviction," "motion to withdraw plea," and the catchall "motion to vacate judgment and to withdraw plea." We shall refer to it as the "motion to withdraw plea."
In January 2018, before the motion to withdraw plea was heard, Hameed filed a petition for writ of habeas corpus in the trial court. The trial court denied the habeas corpus petition in a lengthy decision. Hameed then filed in this court a petition for writ of habeas corpus alleging: (1) he was not given the required immigration advisement under section 1016.5; (2) he was sentenced in absentia to the maximum term when the Cruz waiver was invalid; and (3) the two-year enhancement to his sentence was illegal because former section 12022.6(b) had been repealed. A panel of this court summarily denied that petition. (In re Hameed (Mar. 1, 2018, G055994) [nonpub. opn.].) We grant Hameed's request to take judicial notice of the court file in case No. G055994. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In May 2018, Hameed, through new counsel, filed supplemental points and authorities in support of his motion to withdraw plea. The supplemental points and authorities sought relief under section 1018 based on ineffective assistance of counsel for trial counsel's alleged failure to advise Hameed of the immigration consequences of his no contest plea. In a declaration submitted with the supplemental points and authorities (Hameed's second declaration), Hameed claimed that after the plea agreement was offered, he had asked his trial counsel what would be the immigration consequence of a no contest plea, and, in response, counsel said he was not an immigration attorney and Hameed should consult an immigration attorney "after the plea." Hameed declared that after the no contest plea was entered, but before sentencing, he had consulted an immigration attorney, who advised him the no contest plea would cause his deportation. Hameed declared he left the United States before the sentencing hearing because he was afraid of being deported to Pakistan, where he and his family would face persecution for their religious beliefs. Hameed did not mention whether, before fleeing the country, he had contacted his trial counsel about the prospect of withdrawing his plea.
After opposition and yet more briefing, Hameed's motion to withdraw plea was heard in October 2018. The trial court found Hameed had failed to show good cause for relief under section 1018, denied the motion, and ordered Hameed to resume serving his sentence. Hameed filed a notice of appeal from the both the sentence imposed in May 1996 and the order denying his motion to withdraw plea. He sought and obtained a certificate of probable cause for the latter.
DISCUSSION
I.
Hameed's Appeal from the Sentence
Imposed in May 1996
By direct appeal from his sentence, Hameed argues: (1) the Cruz waiver was invalid and, therefore, the trial court erred by sentencing him to maximum term of nine years eight months; (2) his sentencing in absentia was invalid because he was never advised that he could be sentenced in the event he failed to appear; and (3) his trial counsel was ineffective by failing to advise him of the immigration consequences of his no contest plea.
We have no jurisdiction to consider any of those arguments because Hameed did not timely file a notice of appeal from the sentence. A notice of appeal in a criminal matter must be filed within 60 days of rendition of judgment. (Cal. Rules of Court, rule 8.308(a).) A sentence is deemed to be a final judgment. (§ 1237, subd. (a).) Except in time of public emergency, a court may not extend the time to file a notice of appeal. (Cal. Rules of Court, rules 8.66, 8.308.)
Hameed was sentenced on May 3, 1996 and the abstract of judgment was filed on May 22, 1996. He fled the country and did not file a notice of appeal until November 2018—some 22½ years after he was sentenced. His appeal is untimely to say the least. Fleeing the jurisdiction does not give a convicted criminal an open-ended extension of time to file a notice of appeal.
"An untimely notice of appeal is 'wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.'" (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) We therefore dismiss Hameed's appeal from the sentence.
Hameed was not without means to make the claims raised by his appeal. Both his petition for writ of habeas corpus filed in the trial court and his petition for writ of habeas corpus filed in this court challenged the validity of the Cruz waiver and his sentencing in absentia. Both petitions were denied.
Hameed claims he did not know of, and was not informed of, his right to appeal, and "the sentencing court sentenced him in absentia without any advisements about his appellate rights." On the plea form, Hameed initialed a provision stating he understood he had the right to appeal from the no contest plea and "I hereby waive and give up this right." The trial court could not have advised Hameed of his appeal rights at the sentencing hearing because Hameed had fled.
Citing People v. Kang (2003) 107 Cal.App.4th 43, Hameed argues "[f]ormer fugitives have the right to an appeal." Former fugitives, just as all other appellants, must timely file a notice of appeal. In Kang, the defendant's attorney timely filed a notice of appeal while the defendant was a fugitive from justice. (Id. at pp. 46, 48.) The appeal was dismissed for failure to file an opening brief, but allowed to be reinstated after the defendant was apprehended. (Id. at pp. 47, 53.)
Hameed argues his sentence was unauthorized and therefore can be challenged at any time. The unauthorized sentence rule permits a defendant to challenge an unauthorized sentence on appeal even if the defendant failed to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354-355; In re Brown (2020) 45 Cal.App.5th 699, 714.) The unauthorized sentence rule is an exception to the waiver doctrine (People v. Hester (2000) 22 Cal.4th 290, 295) and is not an exception to the jurisdictional requirement of a timely notice of appeal (In re G.C. (2020) 8 Cal.5th 1119, 1129-1130). "[T]o invoke this rule the court must have jurisdiction over the judgment." (Id. at p. 1130) We lack jurisdiction over the judgment because Hameed did not file a timely notice of appeal. He therefore cannot invoke the unauthorized sentence rule in this appeal.
II.
Former Section 12022.6(b) Enhancement
In the no contest plea form, Hameed admitted the allegations of an enhancement under former section 12022.6(b). The court's sentence of nine years eight months included the two-year sentencing enhancement under former section 12022.6(b).
The version of former section 12022.6(b) in effect when Hameed was sentenced imposed a two-year sentence enhancement when the aggregate taking, damage, or loss of property in the commission or attempted commission of a felony exceeded $150,000. (Stats. 1992, ch. 104, § 1.) Former section 12022.6 was repealed by its own terms effective January 1, 2018. (Former § 12022.6, subd. (f); Stats. 2010, ch. 711, § 5.)
Hameed argues the two-year sentencing enhancement imposed under former section 12022.6(b) must be stricken because his case was not final when that section was repealed. He relies on In re Estrada (1965) 63 Cal.2d 740, 742, 745 (Estrada) in which the California Supreme Court held that a legislative amendment reducing the punishment for a criminal offense is assumed to apply to all defendants whose judgments are not yet final on the statute's operative date.
A judgment in a criminal case is rendered when the trial court orally pronounces sentence. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) "For purposes of the Estrada rule, a judgment is 'not final so long as the courts may provide a remedy on direct review [including] the time within which to petition to the United States Supreme Court for writ of certiorari.'" (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336.) The trial court orally pronounced sentence on Hameed on May 3, 1996. The judgment became final for purposes of the Estrada rule 60 days after May 3, 1996, over 21 years before former section 12022.6(b) was repealed. This matter was not pending on appeal when former section 12022.6(b) was repealed by its terms on January 1, 2018 because Hameed did not file his notice of appeal until November 2018, nearly 11 months later. Hameed therefore is not entitled to the benefit of the Estrada rule. (See People v. Grzymski (2018) 28 Cal.App.5th 799, review granted Feb. 13, 2019, S252911 [Defendant was not entitled to relief under Senate Bill No. 180 because he failed to appeal his convictions, which became final before Senate Bill No. 180 took effect].)
The Estrada rule notwithstanding, the repeal of section 12022.6(b) does not apply retroactively at all—even to defendants whose convictions were not yet final on the repeal date. (People v. Medeiros (2020) 46 Cal.App.5th 1142, 1147, 1154-1157.) "[T]he Legislature intended [former section 12022.6's] provisions to apply to defendants who committed their crimes before January 1, 2018." (Id. at p. 1157; see People v. Abrahamian (2020) 45 Cal.App.5th 314, 337 ["'the repeal of former section 12022.6 does not apply retroactively'"].)
III.
Appeal from the Order Denying the Motion to
Withdraw Plea
A. Standard of Review
Hameed argues the trial court erred by denying his motion to withdraw plea because he was entitled to relief under sections 1016.5, 1018, and 1473.7. We address each of these statutory grounds for relief.
An order granting or denying a motion to withdraw a plea and vacate a conviction is generally reviewed under the abuse of discretion standard. (See People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).) An order on a motion to withdraw a plea based on alleged ineffective assistance of counsel is subject to de novo review because ineffective assistance of counsel is a mixed question of law and fact. (People v. Vivar (2019) 43 Cal.App.5th 216, 224, review granted Mar. 25, 2020, S260270 (Vivar); People v. Olvera (2018) 24 Cal.App.5th 1112, 1116; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).) "We 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." (Ogunmowo, supra, 23 Cal.App.5th at p. 76.) B. Section 1016.5
Section 1016.5, subdivision (a) requires a trial court to give, on the record, an advisement that a plea may have immigration consequences before accepting a guilty or no contest plea to any state-law crime. If a trial court fails to give the required advisement, and the defendant shows that his or her conviction may result in adverse immigration consequences, the court, on the defendant's motion, must vacate the judgment and allow the defendant to withdraw the plea. (§ 1016.5, subd. (a).) To obtain relief, the defendant must show prejudice by establishing it was reasonably probable he or she would not have pleaded guilty if properly advised. (Zamudio, supra, 23 Cal.4th at p. 210.)
The required advisement reads: "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." (§ 1016.5, subd. (a).)
Hameed contends the trial court did not read him the advisement required under section 1016.5, subdivision (a) before accepting his no contest plea in November 1995. The Attorney General argues Hameed waived his claims under section 1016.5 by withdrawing them and limiting to section 1018 the ground for relief in the motion to withdraw plea.
The Attorney General makes a valid point. The precise statutory grounds for relief changed during the course of briefing on Hameed's motion to withdraw plea. During a chambers conference in August 2018, Hameed's trial counsel informed the court that Hameed would only be pursuing a motion under section 1018. Rather than find waiver, we address Hameed's claim under section 1016.5 in the interest of justice and to avert an ineffective assistance of counsel claim.
Hameed's claim under section 1016.5 fails first and foremost because he was not reasonably diligent in seeking relief. A defendant bears the burden of proving reasonable diligence in seeking relief under section 1016.5. (People v. Asghedom (2015) 243 Cal.App.4th 718, 724; People v. Totari (2003) 111 Cal.App.4th 1202, 1207 (Totari); People v. Castaneda (1995) 37 Cal.App.4th 1612, 1622 (Castaneda).) The defendant must explain and justify the delay if considerable time elapsed between the plea and the motion to withdraw the plea. (Totari, supra, at p. 1207; Castaneda, supra, at p. 1622.) "[T]hat relief under section 1016.5 is predicated upon a defendant's demonstrating his conviction 'may have' one or more of the specified consequences implies that such a motion is timely if brought within a reasonable time after the conviction actually 'may have' such consequences." (Zamudio, supra, 23 Cal.4th at p. 204.) Due diligence is required because the People might suffer prejudice if the case must proceed to trial after a long delay. (Totari, supra, at p. 1207.)
Hameed stated in his second declaration that after he entered the no contest plea, but before the date of the sentencing hearing, he met with an immigration attorney who informed him the no contest plea would lead to his deportation. Thus, Hameed knew of the immigration consequences of his no contest plea before the date set for sentencing. After meeting with the immigration attorney, Hameed acted neither reasonably nor diligently: He fled the country rather than seek relief. He brought his motion to withdraw plea over 20 years later and only then because he had been caught while trying to enter the United States from Canada under a false name and birthdate. Although Hameed claims he feared religious persecution in Pakistan, he never explains why, after meeting with the immigration attorney, he did not immediately seek to withdraw his plea or, at the very least, appear for sentencing and ask for relief then.
Hameed's delay of over 20 years in seeking relief under section 1016.5 deprived the prosecution of the use of the reporter's notes to counter Hameed's claim he was not given the required immigration advisement. Government Code section 69955 allows for destruction of court reporter notes in a criminal proceeding after 10 years. In a declaration dated July 28, 2017, the assigned court reporter confirmed that her reporting notes for the date on which the trial court accepted Hameed's no contest plea had been destroyed pursuant to Government Code section 69955.
Hameed's motion to vacate judgment and withdraw his plea, if timely, did not establish he was entitled to relief. "[S]ection 1016.5 relief is available only if the trial court failed to provide the statutory advisement or if the record is silent on that subject." (People v. Martinez (2013) 57 Cal.4th 555, 565.) The record in this case, though lacking a reporter's transcript, is not silent on the subject of the statutory advisement. The court minutes for November 30, 1995 include the entry, "Defendant was advised of the consequences of a plea if not a citizen and consequences of violating parole." The plea form itself included a provision stating: "I understand that if I am not a citizen of the United States the conviction for the offense 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." Hameed initialed this provision, which tracks the language of section 1016.5. The plea form satisfied the court's duty under section 1016.5. (People v. Olvera, supra, 24 Cal.App.5th at p. 1116; People v. Araujo (2016) 243 Cal.App.4th 759, 762.) C. Section 1018
1. Hameed Did Not Act With Due Diligence.
Hameed sought relief under section 1018 for ineffective assistance of counsel on the ground his trial counsel did not advise him that a no contest plea would lead to his deportation. Under section 1018, a trial court may permit a defendant to withdraw a guilty or no contest plea if good cause is shown. (See People v. Dillard (2017) 8 Cal.App.5th 657, 665.) The application to withdraw a guilty or no contest plea may be made "at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended." (§ 1018.) "'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea' under section 1018." (People v. Patterson, supra, 2 Cal.5th at p. 894.) A noncitizen defendant is not categorically barred from seeking relief under section 1018 by virtue of having received the section 1016.5 advisement. (Id. at pp. 895, 899.)
Despite having an express time deadline, section 1018 has been interpreted to permit a defendant to bring a motion to withdraw a plea after the time deadline expires if the defendant exercises due diligence in bringing the motion. (Castaneda, supra, 37 Cal.App.4th at pp. 1616-1617, 1618.) "A postjudgment motion to change a plea must be 'seasonably made.'" (Id. at p. 1618.)
Hameed did not bring his motion to withdraw plea within section 1018's express time deadline. For the same reasons we expressed with respect to section 1016.5, Hameed did not act with due diligence in seeking relief under section 1018. Lack of due diligence alone was a sufficient basis to deny Hameed relief.
2. The Trial Did Not Err By Finding Lack of Good Cause for Relief
The trial court did not err by finding Hameed failed to show good cause for relief under section 1018. To prevail on a claim of ineffective assistance of counsel, Hameed must demonstrate (1) counsel's representation fell below an objective standard of reasonableness as judged by professional standards at the time of the representation and (2) "but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) When the claim is made that counsel failed to advise or misadvised on the immigration consequences of a plea, a reasonable probability means "but for counsel's incompetence," the defendant would not have pleaded guilty or no contest and would have proceeded to trial instead. (In re Resendiz (2001) 25 Cal.4th 230, 253 (Resendiz), abrogated in part on another ground in Padilla v. Kentucky (2010) 559 U.S. 356, 370-371.)
What were the professional standards in 1995, when Hameed pleaded no contest? At that time, a criminal defendant was not entitled under the Sixth Amendment to the United States Constitution to be advised of the immigration consequences of a plea because they were considered collateral rather than direct consequences. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797; People v. Limones (1991) 233 Cal.App.3d 338, 344; see Resendiz, supra, 25 Cal.4th at pp. 242-246.) Thus, failure to advise a defendant of the immigration consequence of a plea did not necessarily constitute ineffective assistance of counsel. (Chaidez v. United States (2013) 568 U.S. 342, 350-352.)
That rule was partially eroded in 2001 by Resendiz, which disavowed the collateral versus direct consequences distinction and held that affirmative misadvice by counsel regarding the immigration consequences of a plea might, depending on the facts of the case, constitute ineffective assistance of counsel. (Resendiz, supra, 25 Cal.4th at p. 235.) In 2010, the United States Supreme Court, in Padilla v. Kentucky, supra, 559 U.S. 356, 374, held that criminal defense attorneys have an affirmative duty under the Sixth Amendment to inform their clients of the immigration consequences of a plea. The rule announced in Padilla v. Kentucky did not apply retroactively to defendants whose convictions had already become final (Chaidez v. United States, supra, 568 U.S. at p. 358) and therefore does not apply to Hameed.
As of Resendiz in 2001, and possibly when Hameed pleaded no contest in 1995, "affirmative misadvice satisfie[d] the performance prong of an ineffective assistance claim." (Vivar, supra, 43 Cal.App.5th at p. 226.) But "it is less clear whether a failure to provide comprehensive advice might qualify." (Ibid.) In People v. Soriano (1987) 194 Cal.App.3d 1470, 1481 (Soriano), the Court of Appeal concluded that counsel's failure to advise the defendant on the immigration consequences of a guilty plea constituted ineffective assistance of counsel. The defendant in Soriano averred he had asked his trial counsel several times whether his plea would have immigration consequences, and each time counsel told him it would not. (Id. at p. 1479.) Counsel testified, however, that she had never told the defendant he would not be deported if he pleaded guilty, she had warned him that deportation could result, and she had advised him in a general sense a guilty plea could have immigration consequences. (Ibid.) The Soriano court concluded, even if counsel's version of events were correct, counsel's answer to the defendant's questions were insufficient because "[counsel] merely warned defendant that his plea might have immigration consequences" and counsel would have known the guilty plea made the defendant subject to deportation "[h]ad she researched the matter." (Soriano, supra, 194 Cal.App.3d at p. 1482.)
Soriano can be read broadly or narrowly. "Construed broadly, Soriano requires defense counsel to: (1) research the specific immigration consequences of the alien defendant's guilty plea, (2) attempt to negotiate a plea which takes the defendant out of the deportable class of convicts, and (3) request a judicial [recommendation against deportation] if appropriate or at least inform the defendant of the availability of the motion. [Citation.] On the other hand, Soriano can be limited to its facts, i.e., a situation where the defendant may have been misinformed of the deportation consequences of his plea and where he avers he would not have entered the plea if he had known he would be deported as a result of the plea." (People v. Barocio (1989) 216 Cal.App.3d 99, 107.) "This narrow reading suggests that Soriano only required an attorney to research and apprise their [sic] client of the immigration consequences of a plea if that client asked a '"'"specific question"'"' on the subject." (Vivar, supra, 43 Cal.App.5th at p. 227.)
As to alleged deficiencies in counsel's representation, Hameed stated in his first declaration his trial counsel "explained the plea form to me" but did not tell him he "would be deported." In his second declaration, Hameed stated that after the plea deal was offered he "specifically asked his trial counsel . . . what would be the immigration consequences of his plea in this case." Hameed declared he did not receive an answer but "was told that trial counsel was not an immigration attorney, and that he could consult with an immigration attorney after the plea." Trial counsel, to Hameed's knowledge, "did not independently investigate or research the immigration consequences of the proposed plea."
Although Hameed's declarations might satisfy the requirement of deficient performance by counsel under either a broad or narrow reading of Soriano, if we were to follow it, the trial court was not required to treat the declarations as conclusive or even believe them. Hameed did not submit a declaration from his trial counsel, the immigration attorney he consulted, or any other corroborating evidence. (See Vivar, supra, 43 Cal.App.5th at pp. 222-223, 228 [correspondence and e-mails with trial counsel and counsel's notes corroborated claim of deficient performance]; Ogunmowo, supra, 23 Cal.App.5th at pp. 73, 78-79 [affidavit from trial counsel corroborated defendant's claim of deficient advice and prejudice].) In addition, there is a discrepancy in Hameed's declarations which calls into question their veracity. In his first declaration, Hameed made no mention of asking his trial counsel about the immigration consequences of his plea, although that would seem to be a fact worth mentioning. In his second declaration, Hameed stated he specifically asked that question.
We are not bound by that decision. (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193 ["there is no horizontal stare decisis in the California Court of Appeal"].)
The trial court is the judge of the credibility of witnesses presenting testimony by declaration of counsel's alleged deficient performance. (People v. Tapia (2018) 26 Cal.App.5th 942, 953; see People v. Quesada (1991) 230 Cal.App.3d 525, 533 ["the trial court on a contested motion to withdraw a plea of guilty . . . is the trier of fact and hence the judge of the credibility of the witnesses or affiants"].) The trial court, which found Hameed had not shown good cause for relief under section 1018, implicitly found his declarations not to be credible. Given the lack of corroborating evidence, and the discrepancy between Hameed's two declarations, such an implied finding was fully justified. (See People v. Tapia, supra, 26 Cal.App.5th at p. 953 ["The only evidence [the defendant] was not advised of the specific immigration consequences of his plea is [his] own self-serving declaration, claiming he was not told of the immigration consequences. The trial court implicitly found [the defendant]'s declaration not credible"].)
As to prejudice, Hameed declared in his first declaration he would have requested trial counsel to negotiate a safer disposition "[h]ad I been correctly advised that I would be subject to deportation" and, if an "immigration-safe disposition" were not possible, Hameed would have continued with trial. Hameed declared in his second declaration that "had [he] been advised that the proposed plea would likely result in his deportation, he would never have agreed to the proposed disposition, and would have sought a disposition that would not have caused a deportation, or would have taken a jury trial to verdict."
Hameed's declarations alone were not enough to justify relief. "[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.)
Hameed did present some corroborating evidence in the form of (1) hand-written documents dated, respectively, May 1997, August 2001, and March 2005, purporting to be death threats against Hameed and his family from an extremist group known as Lashkar-e-Jhangvi, and (2) Urdu to English translations of those documents. The trial court could reasonably find this evidence not credible and disregard it. The handwritten death threats were not authenticated by declaration, or otherwise, and bear dates later than the date of Hameed's no contest plea in November 1995. D. Section 1473.7
Section 1473.7 became effective on January 1, 2017. (Stats. 2016, ch. 739, § 1.) It authorizes a defendant "who is no longer in criminal custody" to file a motion to vacate a conviction or sentence for either of two reasons, the first being "[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 or nolo contendere." (§ 1473.7, subd. (a)(1).)
Section 1473.7, subdivision (a), on its face, permits relief only if the defendant is no longer in criminal custody. (People v. Perez (2018) 19 Cal.App.5th 818, 828.) "To obtain relief per [section 1473.7], the individual cannot be in custody or under restraint." (People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 221.) Hameed was in criminal custody when he filed his motion to withdraw his plea and therefore is not entitled to seek relief under section 1473.7, subdivision (a).
Hameed argues section 1473.7 violates due process and equal protection by not granting relief to those in criminal custody. This argument has no merit because a person in criminal custody may seek relief through a petition for writ of habeas corpus. (See People v. Cruz-Lopez, supra, 27 Cal.App.5th at p. 221.) Section 1473.7 was enacted with the understanding that "[u]nder existing law, although persons not presently restrained of liberty may seek certain types of relief from the disability of a conviction, the writ of habeas corpus is generally not available to them." (Legis. Counsel's Dig., Assem. Bill No. 813 (2015-2016 Reg. Sess.); see People v. Perez, supra, 19 Cal.App.5th at pp. 827-828.) The legislative purpose in enacting section 1473.7 was to grant those persons not in custody the same or similar right to relief as those persons in custody to move to vacate a conviction or sentence based on error in advising that person of the potential immigration consequences of a guilty or no contest plea. (Legis. Counsel's Dig., Assem. Bill No. 813 (2015-2016 Reg. Sess.).)
DISPOSITION
The order denying Hameed's motion to withdraw plea is affirmed. In all other respects, the appeal is dismissed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.