Opinion
E071099
12-12-2019
THE PEOPLE, Plaintiff and Respondent, v. SERGIO PASILLA JIMENEZ, Defendant and Appellant.
Sally Patrone Brajevich, 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, and Melissa Mandel, A. Natasha Cortina and Michael E. Cosgrove, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV025326) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed. Sally Patrone Brajevich, 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, and Melissa Mandel, A. Natasha Cortina and Michael E. Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Sergio Pasilla Jimenez, filed a motion to withdraw his guilty plea pursuant to Penal Code section 1473.7, which the court denied. On appeal, defendant contends the court erred in denying his motion. We affirm.
All further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
We took judicial notice of the record in case No. E066754, defendant's appeal from the denial of his motion to withdraw his plea pursuant to section 1016.5. We derive much of our factual recitation from the opinion in that case.
On May 17, 2002, the victim was driving to a funeral in Ontario when she parked her car. Defendant came up to her car, lifted his shirt to reveal a handgun, and told her: "'If you scream, I'm going to kill you.'" He grabbed the victim's arm and pushed her into the passenger seat. She removed the keys from the ignition; defendant shouted: "'Give me the keys. Otherwise I'm going to kill you.'"
The victim opened the door and fell onto her stomach on the seat. Defendant grabbed her purse; she pulled it back from him; he pulled it away from her and fled with it. The victim followed defendant, asking for assistance along the way. The victim pointed defendant out to an officer as he arrived. An officer detained defendant, a known Pomona 12th street gang member.
A search of defendant's person revealed two of the victim's identity cards, three of her bank cards, and other government issued cards belonging to the victim. The victim positively identified defendant as the suspect at an infield show-up shortly thereafter. The victim's purse was recovered. The victim sustained a cut to the top of her right foot, which was bleeding, and scratches on her left hand. She experienced chest pains and was transported to the hospital.
The People charged defendant by felony information with attempted carjacking (count 1; §§ 664, 215, subd. (a)), second degree robbery (count 2; § 211), criminal threats (count 3; § 422), and attempted kidnapping (count 4; §§ 664, 207, subd. (a)). On August 9, 2002, pursuant to a plea agreement, defendant pled no contest to the count 2 offense of second degree robbery.
Defendant initialed a provision of the agreement which provided: "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 . . . ." Defendant initialed another provision of the plea agreement reading: "I have had sufficient time to consult with my attorney concerning my intent to plead . . . to the above charge(s). My lawyer has explained everything on this Declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes." Defendant also initialed a provision providing: "I can read and understand English."
Someone had crossed out "may" in the preprinted form language of the provision and inserted the word "will."
Defendant's attorney signed the declaration reflecting that the attorney had "personally read and explained the contents of the above declaration to the defendant . . . ." The court signed the order on the declaration indicating the court found "defendant fully understands . . . the consequences of his plea . . . ." In return for his plea, the remaining three charges were dismissed and defendant was sentenced on September 5, 2002, to the low term of two years of incarceration.
On June 20, 2016, defendant filed a motion to withdraw his plea pursuant to section 1016.5, contending that he had not been properly informed of the immigration consequences of his plea. Defendant attached to his motion a declaration in which he asserted "that my initials and signature appear on the '[T]ahl' form, but I am certain that no one ever went [o]ver with me the information about possible deportation, inadmissibility, and denial of naturalization with me. At that time it never even occurred to me that I could be deported . . . ." Defendant further declared: "Had I been properly advised of the immigration consequences of this no contest plea back in 2002, I would have insisted on taking my case to trial or I would have insisted on making some other type of plea that would not have resulted in the severe immigration consequences that I am now facing." The People filed opposition to the motion.
In re Tahl (1969) 1 Cal.3d 122.
Defendant was then the subject of removal proceedings by the Department of Homeland Security.
At the hearing on the motion on June 22, 2016, the court noted that it was the court which had taken defendant's plea nearly 14 years earlier. The court noted: "I can tell you exactly what I say. Not only [do] they sign the plea bargain, but I say to every single defendant before I take their plea, do you understand if you are not a citizen in this country, you will be deported, you will be denied reentry into this country, and you will be denied citizenship. I will specifically say that in every case. And therefore, I'm confident, and I know that he was advised of his constitutional rights as well as the immigration consequences. And the plea bargain clearly says will instead of may."
No transcript of the plea was included in the record.
Defense counsel argued that the inclusion of the word "will," rather than "may," the latter specifically required by statute, deterred defendant from attempting to negotiate a plea which may have resulted in a plea to an offense which would not have incurred immigration consequences. The court expressed incredulity as to how the fact that the plea agreement went "above and beyond the word may and [read] you will be [deported], actually limits or makes [the advisement] incorrect." The court further noted: "[Y]our explanation of how it will [a]ffect negatively the position of your client really defies logic. Because simply after many years of having similar motions in these courthouses, years after years after years, because we used the correct word of 'may,' they came back and say I didn't know that it will. We changed it deliberately to 'will' on certain cases such as robbery. [¶] On all of the cases, frankly, I tell all of them that you will be deported. So I put him on notice even more, even stronger right then and there. They can withdraw their plea if they were concerned about the immigration consequences." The court then denied the motion.
On appeal, defendant contended the court erred in denying his motion because he was not given the advisement regarding the immigration consequences prior to entering his plea, he was told to simply initial and sign the provisions in the plea agreement which was never explained to him; that the inclusion of the word "will" in the immigration advisement rather than "may" prejudiced him; and that his counsel was prejudicially ineffective for not explaining the immigration consequences of the plea to him. By opinion dated October 31, 2017, we affirmed the court's denial of defendant's motion, noting he had initialed provisions of and signed the plea agreement reflecting counsel had explained to him the immigration consequences of the plea; the court had explained to him the immigration consequences of the plea; the court had acted within its discretion in discrediting defendant's self-serving declaration that no one had explained the immigration consequences of the plea agreement to him; that the inclusion of the word "will" instead of "may" in the immigration consequences provision of the plea agreement had strengthened the "warning" to defendant about immigration consequences of the plea; and that in waiting 14 years to file the motion, defendant had not acted with reasonable diligence in filing the motion as statutorily required.
On April 3, 2018, defendant filed a motion to withdraw his guilty plea pursuant to section 1473.7. In a declaration attached to the motion, defendant declared: "I was not advised that by pleading no contest I would become deportable from the United States." Defendant further declared: "I would never have agreed to plead no contest had I known at the time of my no contest plea in 2002 that my plea would have led to my deportation. Instead, I would have insisted on taking my case to trial, even if I would have likely been convicted, or I would have insisted on making some other type of plea that would not have resulted in the severe immigration consequences that I am now facing." The People filed opposition on May 8, 2018.
On June 22, 2018, the court held a hearing on defendant's motion. At the hearing, defense counsel called counsel who had represented defendant at the time of the plea to the stand. Defendant's prior counsel testified she did not have an independent recollection as to defendant's case and that reviewing defendant's case file had not refreshed her memory. She could not testify as to whether she was aware of defendant's citizenship status when she represented him.
Defendant's prior counsel testified: "And for my noncitizens, I definitely make a point of them, at least, pleading no contest, because I think that's a . . . safer plea for their situation, as opposed to pleading guilty." Nothing in her notes reflected that she had any discussions with him regarding the immigration consequences of the plea, but she would not necessarily have included such information in her notes. It was former counsel's practice to go through all the relevant provisions of a plea agreement with her clients: "I take more time, I feel, than, maybe, some of my other colleagues, to make sure that my clients understand."
Back in 2002, it would have been prior counsel's practice and procedure to cross out the word "may" and insert the word "will" on the immigration advisement of the plea form if it applied to her client. Since defendant's plea form included the insertion of the word "will," that would mean she would have gone over the provision with defendant. The court took judicial notice of defendant's plea agreement.
In explicating its ruling, the court read portions of our opinion in case No. E066754. The court noted: "Here, in this case, [defense counsel testified] that—and the way I even—even though she did not have an independent recollection, from what she is telling me, it was her practice to put in the word 'will,' as she said, if it applies to that client. [¶] And she also said the word was changed to reflect the correct information. She said she knew what an aggravated felony was. So it seems from her testimony, and the plea form, she crossed out the word 'may,' and put i[n] the word 'will,' because she believed he would be deported, because of this charge that he was pleading [no] contest to." The court then denied defendant's motion.
II. DISCUSSION
Defendant contends his prior counsel rendered constitutionally ineffective assistance of counsel by failing to explain to him the immigration consequences of the plea; thus, the court erred in denying his motion to vacate his conviction. By order dated July 23, 2019, we asked the parties to brief the issue of whether under the recently amended section 1473.1, subdivision (a)(1), defendant was entitled to relief regardless of whether his counsel was constitutionally ineffective so long as the plea was "legally invalid." In his supplemental brief, defendant argues he was entitled to relief based upon the amended statutory basis as well.
"[S]ection 1473.7 allows noncitizens previously convicted of crimes to which they pleaded guilty, and are no longer imprisoned or restrained, to bring a motion to vacate a conviction when that 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."' [Citation.]" (People v. Fryhaat (2019) 35 Cal.App.5th 969, 976.) "'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).' [Citation.]" (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75 (Ogunmowo).) As amended effective January 1, 2019, that basis includes instances where: "The 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. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1).) A. Ineffective Assistance of Counsel
Defendant argues the court should have granted his motion because his counsel provided constitutionally ineffective assistance by failing to advise him of the immigration consequences of his plea and by failing to mitigate any deportation risk. We disagree.
"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." (Ogunmowo, supra, 23 Cal.App.5th at p. 75.) "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. [Citations.]" (Ibid.)
"A defendant's claim that he or she was deprived of the constitutional right to effective assistance of counsel 'presents a mixed question of fact and law,' and we accordingly review such question independently. [Citation.] 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. [Citation.]" (Ogunmowo, supra, 23 Cal.App.5th at p. 76; accord, People v. Fryhaat, supra, 35 Cal.App.5th at p. 975; accord, People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.)
"To establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Ogunmowo, supra, 23 Cal.App.5th at p. 78) "'[W]hen a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."' [Citation.]" (Ibid.) "The probability of obtaining a more favorable result at trial is one factor to consider in evaluating prejudice, but it is not necessarily the determinative factor. [Citation.] . . . [I]t could be reasonably probable that a defendant 'would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a "Hail Mary" at trial,' where 'avoiding deportation was the determinative factor for [the defendant].' [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.' [Citation.]" (Ibid.) An ineffective assistance of counsel claim is governed by the Sixth Amendment obligations as they existed at the time of the defendant's plea. (See People v. Olvera, supra, 24 Cal.App.5th at p. 1115.)
Here, defendant has failed his burden of establishing either error or prejudice. As noted in our opinion in case No. E066754, defendant initialed and signed the plea agreement containing an advisement of the immigration consequences of his plea; defendant's attorney signed the plea agreement indicating she had read and explained the contents of the agreement to defendant. Defendant's attorney signed the declaration reflecting she "personally read and explained the contents of the . . . declaration to the defendant . . . ." The court signed the declaration reflecting it found defendant understood the consequences of his plea.
In addition, in this case, defendant called his prior counsel to the stand; she testified that, although she had no recollection of defendant's specific case, it was her practice and procedure to cross out the word "may" and insert the word "will" on the immigration advisement provision of the plea form if it applied to her client. Since defendant's plea form included the insertion of the word "will," that would mean she would have gone over the provision with defendant. We agreed with the court's observation in its ruling on defendant's initial motion to withdraw the plea that the use of the word "will" rather than "may" would have provided an even stronger incentive to defendant to consider whether he wished to enter the plea, attempt to further negotiate a plea, or take the matter to trial because it would convey a virtual certainty that immigration consequences would attach to the plea rather than merely the possibility of those consequences. Indeed, in the instant case, defendant faces those very consequences. Thus, the court's finding that defense counsel advised him of the immigration consequences of his plea was supported by substantial evidence.
Defendant relies primarily on Ogunmowo, supra, 23 Cal.App.5th 67 and People v. Bautista (2004) 115 Cal.App.4th 229 (Bautista) for the proposition that his counsel's performance was constitutionally ineffective. Defendant additionally contends that not only was his counsel required to go over the potential immigration consequences of his plea with him, but that she was also required to attempt to negotiate with the People a plea which would potentially eliminate any immigration consequences to defendant, even if that plea was to a more serious charge, more numerous charges, and/or charges which would have required that he serve more prison time.
In Ogunmowo, the defendant's counsel advised the defendant that he would not face any immigration consequences due to the plea in his case. (Ogunmowo, supra, 23 Cal.App.5th at pp. 70, 73, 77-78, 80.) The defendant pled guilty after being so advised. (Id. at p. 70.) The court noted that "[t]his is not a case where trial counsel remained silent and failed to discuss immigration consequences with his client at all." (Id. at p. 77.) Instead, the court found that the defendant had raised immigration concerns with his attorney and his attorney had affirmatively misadvised the defendant of the immigration consequences of his plea. (Ibid.) The court held that: "Affirmatively misadvising a client that he will not face immigration consequences as a result of a guilty plea . . .—when the law states otherwise—is objectively deficient performance under prevailing professional norms." (Ibid.)
The court in Ogunmowo also made factual findings that both the defendant and his counsel's declarations could be taken at face value even though those findings conflicted with the lower court's findings. (Ogunmowo, supra, 23 Cal.App.5th at pp. 78-81.) The court reasoned that since both it and the trial court were in the same position in interpreting written declarations, as opposed to live testimony, the lower court's findings were not entitled to any deference, particularly because it found the lower court's findings unsupported by the record. (Id. at pp. 79-80.) The Ogunmowo court also noted that the court's advisement to the defendant about "possible" immigration consequences militated against a finding the defendant was not prejudiced, especially since he had been assured by counsel that he would not suffer any immigration consequences. (Id. at p. 80.) With respect to the defendant's willingness to take the matter to trial, the court stressed that: "'Shortly after [the defendant's] plea and conviction, [the deputy] was caught up in a corruption scandal and charged in federal court with numerous crimes of moral turpitude involving alleged "suspects."'" (Id. at p. 71 & fn. 3.)
The decision in Bautista predates section 1473.7; relied on section 1016.5, the court's duty to inform a defendant of immigration consequences of his plea; and concerned, in relevant part, a petition for writ of habeas corpus in which the defendant claimed his counsel provided constitutionally ineffective assistance of counsel by failing to advise him about the immigration consequences of his plea and did not attempt to negotiate a plea to a nondeportable offense. (Bautista, supra, 115 Cal.App.4th at pp. 232, 237, 242.) Defendant's trial counsel declared that when his motion to quash the search warrant and suppress the evidence failed, "his strategy shifted to negotiation of a plea bargain with the most lenient sentence possible." (Id. at p. 238.) Counsel declared that he knew the defendant was not a citizen, that the offense to which the defendant pled was deportable, and that he advised the defendant he would be deported unless Immigration and Naturalization Service failed to place a hold on him. (Ibid.) He did not attempt to negotiate a plea to a greater but nondeportable offense because it never occurred to him. (Id. at pp. 238, 241.)
The defendant in Bautista included an affidavit from an attorney with extensive experience representing immigrants in criminal court who opined that the defendant's plea counsel provided prejudicial ineffective assistance of counsel by failing to attempt to negotiate a plea to a nondeportable offense. (Bautista, supra, 115 Cal.App.4th at pp. 239-240 & fns. 7-8.) The defendant, who was being deported due to the offense, declared he would not have pled as he did if he had known there were potential ways to minimize or avoid immigration consequences. (Id. at pp. 240-241.) The Bautista court, which was not reviewing a decision of a lower court but rendering an original, first ruling on the issue, stated that "considering the relatively innocuous facts about the crime . . . , the disparate effects of the sentences . . . , and the facts that [the defendant] had no record of criminal convictions except this case, was a permanent resident of the United States, and had his entire family here . . . , [the defendant] may have been prejudiced by the attorney's failure to investigate, advise, and utilize defense alternatives to a plea of guilty to an 'aggravated felony.'" (Id. at p. 242, italics added.) Thus, the court issued "an order to show cause to the trial court for a reference hearing to take evidence and resolve factual issues relating to defendant's legal advice at the time of his plea." (Ibid.)
Defendant argues: "Counsel never advised [defendant] he could plead to a nondeportable offense, which would have avoided deportation entirely while allowing him to accept responsibility for his actions at an early stage in the proceedings." There is simply no evidence that defendant could have pled to a nondeportable offense. Indeed, as the People point out, it would appear a virtual certainty that no such plea would have been offered due to the strength of the evidence against him and that had defendant taken the matter to trial, he would have been convicted for multiple offenses for which he would have spent more time in jail and would have remained deportable. There is simply no evidence in the record that the prosecution was willing to agree to an immigration-safe disposition. (See People v. Perez (2018) 19 Cal.App.5th 818, 830.) As the court in People v. Olvera, supra, 24 Cal.App.5th 1112 noted, Bautista's analysis focused on the notion that there was a viable claim the prosecutor would have acquiesced to the defendant pleading to a more serious, but nondeportable offense. (People v. Olvera, supra, at p. 1118.) Indeed, in distinguishing Bautista, the court in Olvera observed that its defendant did "not identify any immigration-neutral disposition," like the defendant in Bautista who offered an expert declaration that alternative, nondeportable dispositions would have been available which he opined would have been accepted by the prosecutor. (People v. Olvera, supra, at p. 1118.)
Prior to the United States Supreme Court's opinion in Padilla v. Kentucky (2010) 559 U.S. 356, there was no federal, Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. (See Chaidez v. United States (2013) 568 U.S. 342, 353.) Indeed, most courts had determined that no such duty existed at all. (Ibid.) Courts which had recognized ineffective assistance of counsel claims respecting immigration advice limited their holdings to misadvice by counsel, declining to address the issue of whether neglecting solely to advise defendants affirmatively of immigration consequences could also result in a finding of ineffective assistance of counsel. (Padilla v. Kentucky, supra, at pp. 369-370.)
In Chaidez, the court determined that Padilla had had the effect of "'break[ing] new ground'" or "'impos[ing] a new obligation'" with respect to requiring counsel to advise defendants of immigration issues, effectively changing such issues from collateral consequences of pleas to direct consequences. (Chaidez v. United States, supra, 568 U.S. at pp. 352-353.) Thus, since Padilla created a new affirmative obligation on trial counsel to understand and accurately explain the immigration consequences of a plea to a defendant before the entry of that plea where no such duty had existed before, that obligation could not be applied retroactively to cases that were final at the time the opinion in Padilla was issued. (Chaidez v. United States, supra, at pp. 344, 347-358.)
In In re Resendiz (2001) 25 Cal.4th 230, the California Supreme Court, in a case in which the defendant's counsel informed the defendant that he would have no problems with immigration due to his plea, held "that affirmative misadvice regarding immigration consequences may, depending on the circumstances of the particular case, constitute ineffective assistance of counsel." (Id. at p. 235 [abrogated in Padilla to the extent that it would limit ineffective assistance of counsel claims to affirmative misadvice].) Nevertheless, the court concluded that the defendant had suffered no prejudice because he failed to persuade the court that it was "reasonably probable he would have forgone the distinctly favorable outcome he obtained by pleading, and instead insisted on proceeding to trial, had trial counsel not misadvised him about the immigration consequences of pleading guilty." (In re Resendiz, supra, at p. 254.) Thus, California law at the time of defendant's plea, pursuant to Resendiz, did not establish any duty on all defense counsel to advise defendants about immigration consequences above and beyond affirmatively misadvising them.
We are not persuaded that there was any general obligation for a criminal defense attorney, in 2002, to discuss the immigration consequences of a guilty plea. In 2002, prior to Padilla, the Sixth Amendment did not require counsel to investigate immigration consequences or research immigration law when advising pleading defendants. (See Chaidez v. United States, supra, 568 U.S. at pp. 352-353.) Thus, because prior counsel did not affirmatively misadvise defendant with respect to the immigration consequences of the plea, she cannot be held to have rendered constitutionally ineffective assistance of counsel even if she had failed to advise defendant of the immigration consequences of the plea or had failed to attempt to negotiate an immigration consequence-free plea agreement. Moreover, as discussed above, substantial evidence supports the court's determination that counsel did discuss the immigration consequences of the plea with defendant.
Furthermore, this case is distinguishable from both Ogunmowo and Bautista. Unlike defense counsel in Ogunmowo, there is no evidence, including in defendant's declaration, that defendant's prior counsel affirmatively misadvised defendant of the immigration consequences of his plea. (Ogunmowo, supra, 23 Cal.App.5th at pp. 70, 73, 77-78, 80.) Moreover, the strength of the evidence in this case reflects little probability defendant would have obtained a more favorable result at trial, unlike the case in Ogunmowo where the investigating officer was "'caught up in a corruption scandal and charged in federal court with numerous crimes of moral turpitude involving alleged "suspects."'" (Id. at p. 71 & fn. 3.) Here, the victim followed defendant and identified him to the arriving officer; she identified him at an infield show-up; defendant was apprehended with identity, bank, and government issued cards belonging to the victim. Finally, unlike the court in Ogunmowo, we are not tempted to render factual findings that defendant's declaration should be taken at face value, particularly when such findings would conflict with prior counsel's testimony and the lower court's findings. (Id. at pp. 78-81.) Indeed, here, prior counsel's testimony, which the court credited, established that she did advise defendant about the immigration consequences of the plea. Substantial evidence supports the court's reliance on prior counsel's testimony.
Unlike Bautista, defendant did not include an affidavit from an attorney with extensive experience representing immigrants in criminal court opining that defendant's plea counsel provided prejudicial ineffective assistance of counsel by failing to attempt to negotiate a plea to a nondeportable offense. (Bautista, supra, 115 Cal.App.4th at pp. 239-240 & fns. 7-8.) Unlike Bautista, defendant did "not identify any immigration-neutral disposition," and did not offer an expert declaration opining that alternative, nondeportable dispositions would have been available and acceptable by the prosecutor. (People v. Olvera, supra, 24 Cal.App.5th at p. 1118.) Unlike Bautista, we are reviewing a decision of a lower court, not rendering an original, first ruling on the issue. (Bautista, supra, at p. 242.)
Moreover, unlike Bautista, we would not characterize the facts of defendant's offense as "relatively innocuous." (Bautista, supra, 115 Cal.App.4th at p. 242.) Defendant utilized a gun in his commission of the offense, threatened the victim's life, and injured the victim. Furthermore, the Bautista court only concluded that defendant "may have been prejudiced by the attorney's failure to investigate, advise, and utilize defense alternatives to a plea of guilty to an 'aggravated felony.'" (Ibid.) Thus, it did not hold that defendant had been prejudiced, but issued "an order to show cause to the trial court for a reference hearing to take evidence and resolve factual issues relating to defendant's legal advice at the time of his plea." (Ibid.) Here, the court already took evidence and resolved factual issues relating to defendant's legal advice at the time of the plea; the court ruled that defendant had been properly advised of the immigration consequences of his plea. Substantial evidence supports that ruling. B. Legal Invalidity
To the extent this court does not find ineffective assistance of counsel in failing to advise defendant of the immigration consequences of his plea, defendant argues in his supplemental brief that, under the lesser standard of legal invalidity, his motion to withdraw the plea should be granted. We disagree.
"To obtain relief, [a defendant] must show by a preponderance of the evidence that the plea was legally invalid due to a prejudicial error. The statute defines error as one that damaged his ability to meaningfully defend against the actual or potential adverse immigration consequences of his plea. To show prejudice, [a defendant] must establish that he would not have entered the plea if he had known it would render him deportable. In assessing the latter element, courts should look to 'contemporaneous evidence to substantiate a defendant's expressed preferences.' [Citation.]" (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.)
First, defendant is still required to demonstrate some error that resulted in his inability to understand or defend against the immigration consequences of his plea. (People v. DeJesus, supra, 37 Cal.App.5th at p. 1133.) Thus, his contention that his own inability alone, unrelated to any error, is enough to warrant vacating his conviction is unavailing.
Second, defendant's reliance on the recent decision in People v. Camacho (2019) 32 Cal.App.5th 998, 1006-1012, review denied June 12, 2019, for the proposition that his plea was legally invalid, is unavailing. We find Camacho distinguishable.
The court in Camacho observed that: "The Legislature has clarified that the moving party need not establish ineffective assistance of counsel. [Citation.] It follows therefore, that even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that 'counsel's representation "fell below an objective standard of reasonableness"' . . . '"under prevailing professional norms,"' . . . ." (People v. Camacho, supra, 32 Cal.App.5th at p. 1008.) The court held: "Defendant was required only to show that one or more of the established errors were prejudicial and damaged his 'ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea . . . .' [Citation.]" (Id. at p. 1009.) The court held that "defendant's declaration and testimony showed not only counsel error, but also included 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. The trial court made no express or implied credibility determination for or against defendant, as the ruling was based upon a finding that defendant had not demonstrated ineffective assistance of counsel or prejudice under Padilla, and therefore impliedly under the guidelines of Strickland. However, defendant's claims of error were supported by his former attorney's undisputed testimony that he told defendant only that the charge could subject him to deportation . . . ." (Ibid.)
Strickland v. Washington (1984) 466 U.S. 668.
In contradistinction to the trial court in Camacho, the trial court here made credibility findings and those findings were against defendant. Here, the court implicitly discredited defendant's declaration that counsel did not advise him of the immigration consequences of his plea and explicitly credited prior counsel's testimony that she did go over those consequences with defendant. Thus, defendant's claims of error were not supported, but were contradicted by his prior counsel's testimony. Moreover, the trial court in Camacho did not rule on the merits of the defendant's section 1473.7 motion; instead, the court denied the defendant's motion as premature because no deportation proceedings had been initiated against him. (People v. Camacho, supra, 32 Cal.App.5th at pp. 1003-1004.) Here, the trial court ruled against defendant on the merits.
Likewise, unlike plea counsel in Camacho, defendant's prior counsel advised defendant that the plea would subject him to immigration consequences, not that it simply could have those results. (People v. Camacho, supra, 32 Cal.App.5th at p. 1009.) Finally, as discussed above, substantial evidence supports the court's finding that prior counsel committed no error pertaining to her advisement of the immigration consequences of defendant's plea. Thus, defendant has failed his burden of proving prejudicial error which damaged his ability to meaningfully understand the adverse consequences of his plea. The court did not err in denying his motion.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.