Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FWV701108 Ronald J. Gilbert, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Zulu Ali for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant and appellant Mohanad Hussein appeals after he pleaded guilty to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). He contends that his trial counsel rendered constitutionally ineffective representation by failing to advise him more specifically of the immigration consequences of his plea, and that the trial court erred in denying his motion to withdraw his guilty plea. We find no error and we affirm.
FACTS AND PROCEDURAL HISTORY
Defendant went into a gas station convenience store and requested a telephone calling card. He refused to pay for the card and, when the store clerk confronted him, defendant severely beat and kicked the store clerk, knocking him unconscious. As a result, defendant was charged with one count of assault by means likely to produce great bodily injury, and one count of battery with serious bodily injury.
Defendant initially pleaded not guilty to the charges, and the public defender was appointed to represent him. After plea negotiations, defendant agreed to plead guilty to count 1, with a limit of three years in state prison. Count 2 would be dismissed.
Defendant’s counsel went over the plea agreement and rights advisement form with him, and defendant initialed all the relevant passages on the form, including the advisement that, “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest).” At the hearing at which defendant changed his guilty plea, he advised the court that he and his attorney had gone through the declaration, and that counsel had read the provisions to him verbatim.
The court found that defendant understood the charges, the possible penalties, and his constitutional rights, and found a factual basis for the plea. Sentencing was set for July 3, 2007.
At the time of sentencing, attorney James Tedford, who was apparently retained by defendant’s family, was present for possible substitution of attorney. Defendant refused attorney Tedford’s services and adamantly maintained he wanted to represent himself. Defendant’s public defender expressed a doubt as to defendant’s competency and requested an evaluation. The court appointed Dr. Soltz to evaluate and report on defendant’s competency to participate in the sentencing proceedings.
Dr. Soltz later filed a report finding defendant competent to understand the proceedings and to cooperate with counsel. Finding defendant lucid and cooperative, attorney Tedford, in consultation with defendant and the public defender, agreed to a substitution of counsel and relieved the public defender.
Attorney Tedford requested a continuance to review the plea agreement. Notwithstanding the finding of competence and attorney Tedford’s stipulation to Dr. Soltz’s report, counsel wished to “review discovery and review the file in order to make sure that the plea of guilty that has been entered by my client is, in fact, in his best interest.” As a result of his review, attorney Tedford filed a motion to withdraw defendant’s guilty plea. He asserted grounds of mistake, ignorance, inadvertence and other grounds of overreaching, based on the questionability of defendant’s mental state: (1) defendant had refused the assistance of counsel retained by his family (i.e., defendant’s initial refusal to agree to substitute attorney Tedford); (2) defendant had stated he wanted to represent himself; and (3) defendant displayed enough instability to cause his public defender to request a competency evaluation. Dr. Soltz found that defendant met the minimum requirements of competency, i.e., that he understood the proceedings and had the ability to cooperate with counsel. There were other elements in the report, however, that seemed more ambiguous. Dr. Soltz reported that defendant “understood the meaning of a trial and described in some detail the meaning and significance of a judge, jury, attorney and prosecutor. He had some confusion as to what a prosecutor did. He told me he does not have any idea what he might be facing as far as [prison] time is concerned. He told me that he prefers to be deported and return to Sudan . . . . Otherwise, he did not seem to have a good conception of how much time he would be facing nor the specifics of his legal predicament including the charge.” From these comments, attorney Tedford extrapolated an argument that “[a] defendant can hardly make a knowing and intelligent waiver of his rights if he is not even cognizant of the charges he is facing. In this case, [defendant] did not understand the nature of the charges against him, nor did he understand the possible pleas and defenses.”
The People opposed the motion to withdraw the plea. The People argued that defendant had failed to carry his burden of showing good cause for withdrawal of the plea. The court had found defendant competent; the court was not bound to believe the self-serving statements otherwise in the motion papers.
At the hearing on the motion to withdraw the plea, defendant testified that he never knew that he would receive up to three years in prison as a result of the plea. He did recall being informed that he could be deported; in fact, at the time he had wanted to be deported. Defendant did not remember if he had been told that the offense to which he pleaded guilty was a serious or violent (strike) offense. He believed he was charged with a “fight.” (Defendant gave the same characterization to Dr. Soltz during his competency interview, although defendant at that time also, “[a]fter some reflection, . . . stated ‘assault,’” as the charge.) Defendant could not remember, but thought he “might” have been told he was pleading guilty to a felony.
Defendant did remember initialing and signing the plea form, and he remembered talking with his attorney. He did not remember the attorney reading the form to him. Defendant admitted that his attorney told him he might go to state prison. Defendant remembered the judge asking him if he understood the form he had signed. Defendant remembered answering “yes” to that question. Defendant did not recall the court asking defendant his full name; he did not remember the court asking him his date of birth; he did not remember the court asking him if he had read the form.
The trial court clearly recalled the proceedings, what defendant had been asked, and defendant’s responses, at the change of plea hearing. The court also pointed to a portion of the moving papers that indicated attorney Tedford had tried several times to represent defendant, but defendant had refused the substitution of attorney each time. After defendant had changed his plea and was in jail, attorney Tedford “was contacted by [defendant], who requested that Mr. Tedford visit him at the jail again. [Attorney Tedford] visited [defendant] again [and] was informed that [defendant] had changed his mind and that he did not want to plead guilty, that he wanted Mr. Tedford to represent him and that he did not understand what he was doing when he plead[ed] guilty on June 5, 2007.” (Italics added.) The italicized words indicated to the court simply that defendant had had a change of heart, and betrayed that he in fact did know what he was doing when he pleaded guilty. The court therefore denied the motion to withdraw the guilty plea.
The court ultimately sentenced defendant to the mitigated term of two years in state prison.
Defendant obtained a certificate of probable cause, and filed the instant appeal.
ANALYSIS
I. Defendant’s Ineffective Assistance of Counsel Claim Is Without Merit
Defendant first urges that his trial counsel was constitutionally ineffective for failing to investigate and advise defendant of the specific immigration consequences of his plea.
Appellate counsel asserts that defendant, who was born in the Sudan, came to the United States in 2003 with some of his relatives. While in the Sudan, he had been involved in political activity for which, it is alleged, he could be severely punished by the Sudanese government if he were deported. Defendant complains that the trial attorney’s advisements were general warnings only, i.e., that defendant might be deported, denied entry to the United States, or denied naturalization, as a result of this conviction. Defendant faults the trial attorney for failing to investigate further and to perhaps negotiate a plea to a different offense with different immigration consequences.
To prevail on a claim of ineffective assistance of counsel (IAC), a defendant must show that (1) counsel’s performance was deficient, and (2) the defendant was prejudiced by that deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Fosselman (1983) 33 Cal.3d 572, 583-584.)
Here, defendant has failed to show either deficient conduct or prejudice. The cases upon which defendant relies do not support his IAC claim.
In People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano), the defendant’s attorney told him only in general terms that he “could” be deported as a result of pleading guilty to the offense. Counsel did not research the specific consequences of the plea to that particular offense, and so failed to tell the defendant that he “would” be deported after pleading guilty. The defendant filed a petition for a writ of habeas corpus, alleging that his attorney failed to inform him adequately of the immigration consequences of his plea, and that she had in fact affirmatively assured him that he would not be deported. He alleged that he would not have pleaded guilty had he known that the offense was a deportable offense. Moreover, he obtained a declaration from his attorney stating that, had she known of the immigration consequences of the plea, she would have negotiated for a plea to a nondeportable offense. In addition, if the defendant had been sentenced slightly differently, he would not have been subject to deportation; had his counsel been aware of these details, she averred, she would have negotiated the sentence differently.
Soriano is distinguishable. Where Soriano averred that he did not know he would be deported, here defendant was well aware that he would be deported if he pleaded guilty. He repeatedly stated that he wanted to be deported back to the Sudan. In Soriano, the defendant demonstrated that there were nondeportable alternatives available. Defendant here has made no such showing.
Similarly, defendant’s reliance on People v. Bautista (2004) 115 Cal.App.4th 229, is unavailing. There, the defendant argued that his counsel was ineffective for negotiating a plea to an “aggravated felony,” which carried immigration consequences, including deportation, rather than negotiating a plea to a “non-aggravated” offense. In his petition for writ of habeas corpus, the defendant provided a declaration from trial counsel that the focus of proceedings had been to quash the search warrant, and to suppress the evidence gathered; when that strategy failed, counsel sought a plea bargain with the least amount of prison time. The attorney knew that the defendant was an immigrant with a green card, and he knew that the charge was a deportable offense. He did advise the defendant affirmatively that he “‘would be deported’” as a result of the conviction, but he did not pursue a plea to a different offense, which might carry a greater prison sentence, but which would not be subject to deportation. He did not pursue such a plan, he averred, because it simply did not occur to him. (Id. at pp. 237-238.)
The court held that the trial attorney’s conduct may have fallen below the standard of practice, because he had failed to research the possibilities of different immigration consequences in advising the defendant and selecting the course of action most beneficial to the defendant’s wishes. The court therefore issued an order to show cause on the habeas corpus petition, to take evidence and resolve factual issues surrounding the legal advice which had been given to the defendant at the time of his plea.
Defendant here has not filed a petition for writ of habeas corpus. He has not obtained a declaration from trial counsel about the concerns the attorney took into account in negotiating the plea, including any immigration consequences. It is certainly not the case that defendant was unaware of the immigration consequences of his plea, as he mentioned several times his expectation and desire to be deported to the Sudan. The supposedly factual matters of defendant’s participation in political activities in the Sudan, for which he might be punished, are not matters included in the record on appeal, and have not been established by competent evidence. These matters are speculative only. Appellate counsel has not suggested any available alternative plea or offense as to which defendant might likely have been able to negotiate a disposition with more favorable immigration consequences. Thus, People v. Bautista has no applicability in these circumstances.
People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio) also provides no support to defendant. There, although the defendant had pleaded guilty to a deportable offense, his counsel failed to research and to advise the defendant about the possible availability of means of avoiding deportation—obtaining a “recommendation against deportation” pursuant to the relevant federal statutes. There, the defendant did not claim that he was not advised, or that he was misadvised, of the immigration consequences of his plea. He did not allege that he would not have pleaded guilty because of counsel’s failure to help him apply for a recommendation against deportation. His counsel was ineffective for failing to advise him of and to start the application proceedings to obtain such a recommendation, but the remedy for counsel’s failure was not withdrawal of the plea; it was to request a recommendation against deportation from the sentencing court. (Id. at pp. 105, 107-108, 110.)
Here, defendant makes no such limited request, and he does not indicate that he is even eligible to apply for such a recommendation against deportation. At the time of his plea agreement, in fact, he was insistent that he be deported. Barocio does not aid defendant.
Defendant has failed to demonstrate either that trial counsel’s conduct was deficient, or that he was prejudiced thereby. Consequently, his claim of IAC must fail.
II. The Court Adequately Advised Defendant of the Immigration Consequences of His Plea
In a similar vein, defendant urges that the trial court failed to ensure that he was properly advised of the immigration consequences of his plea, pursuant to Penal Code section 1016.5, subdivision (a). This claim is without merit.
“The critical issue under section 1016.5 is whether a defendant has been advised that his guilty plea may have immigration consequences. The exact language of the warning is not crucial.” (Barocio, supra, 216 Cal.App.3d at p. 105.) Here, even though the trial court did not repeat the language of defendant’s plea agreement form, it did ascertain that defendant and his attorney had gone over its provisions, and that counsel had read verbatim all the recitations to defendant. That necessarily included the warning that defendant could be deported and suffer other immigration consequences as a result of pleading guilty to this offense. Defendant was most certainly aware of these immigration consequences, and expressed his understanding and desire that he would be deported to the Sudan. The court was not required to repeat the matters stated explicitly on the waiver form. (In re Ibarra (1983) 34 Cal.3d 277, 286; People v. Quesada (1991) 230 Cal.App.3d 525, 535-536.)
III. The Court Did Not Abuse Its Discretion in Denying Defendant’s Request to Withdraw His Plea
Defendant urges that the trial court erred in denying his motion to withdraw his guilty plea, based on his claim that he was ignorant of the legal process and that his mental condition had affected his ability to decide to plead guilty.
Defendant has failed to meet his burden of showing mistake, ignorance, inadvertence, or any other factor overcoming his free judgment. (See People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) As noted in the factual recitation, above, defendant’s moving papers made much of selected statements from Dr. Soltz’s report: Defendant “had some confusion as to what a prosecutor did. He told me he does not have any idea what he might be facing as far as [prison] time is concerned. He told me that he prefers to be deported and return to Sudan . . . . Otherwise, he did not seem to have a good conception of how much time he would be facing nor the specifics of his legal predicament including the charge.”
As before, counsel argues that “[a] defendant can hardly make a knowing and intelligent waiver of his rights if he is not even cognizant of the charges he is facing. In this case, [defendant] did not understand the nature of the charges against him, nor did he understand the possible pleas and defenses.”
This argument is simply not supported by the record. Even Dr. Soltz’s report made plain that defendant knew he was charged with “fighting” and “assault.” Elsewhere in the report, Dr. Soltz stated that defendant “knew exactly what he was being charged with and the incident that led to his arrest. . . . He understood that there was going to be a trial or potentially such, and that he could go to jail. He, however, did not seem concerned and told me that his preference [was] to be deported and return to Sudan where he was raised. [¶] The individual appears to understand the charges against him. He was fully cooperative with me . . . . [¶] . . . [¶] At this point, it appears that this individual is competent under 1368 of the Penal Code. He does understand the charges and is cooperative. . . .”
Defendant’s claim otherwise was supported only by his self-serving testimony at the hearing. The court did not find him credible. Defendant’s memory was selective as to which parts of the sentencing proceeding he recalled, and which he did not. He testified both that he remembered and that he did not remember the court asking him if he had read the waiver form, or had it read to him. He did recall saying “yes,” however, to the question of whether he had understood the form. He testified both that he did not know that he could be sentenced to three years in prison, and also that his attorney had told him he could be sentenced to prison. At the sentencing proceedings themselves, defendant had behaved rationally and lucidly, and had responded appropriately to questions. Most telling was the description in the moving papers of how the newly-substituted retained counsel had come to file the motion to withdraw the plea: The attorney described how defendant had contacted him and told him that he had changed his mind about pleading guilty. That admission belied defendant’s claims that he did not understand what he was doing.
The trial court was not required to accept defendant’s selective and one-sided claims (People v. Hunt (1985) 174 Cal.App.3d 95, 103), and properly found that he had in fact knowingly and intelligently entered his change of plea. The trial court did not abuse its discretion in denying the motion to withdraw the plea.
DISPOSITION
The judgment is affirmed.
We concur: Richli, J., King, J.