Opinion
D073212
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. MELCHOR KARL T. LIMPIN, Defendant and Appellant.
Lauren Cusitello for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD248200) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Lauren Cusitello for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
The facts of the underlying crimes are not in dispute and need not be discussed. They are set forth in the briefs filed by defendant and the People.
In 2013, the District Attorney for San Diego County filed an information charging defendant Melchor Karl T. Limpin with possession of methamphetamine for sale (Health & Saf. Code,§ 11387, count 1); failure to appear while on bail (Pen. Code, § 1320.5, count 2); possession of methamphetamine (§ 11377, subd. (a), count 3); and possession of narcotics paraphernalia (§ 11364.1, subd. (a), count 4). It was further alleged defendant committed counts 2 and 3 while he was released on bail within the meaning of Penal Code section 12022.1, subdivision (b).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Pursuant to a plea agreement entered on January 24, 2014, defendant pled guilty to counts 1 and 3. The agreement provided that defendant would serve 365 days in custody and that at sentencing, the prosecution would dismiss count 1 and agree to credit for time served if defendant provided proof that he had completed both an outpatient drug treatment program and courses suitable to take the CPA exam (conditions). A month before sentencing, defendant applied for U.S. citizenship, which was denied based upon his guilty plea.
Defendant did not complete the conditions of the plea agreement. At his November 5, 2014 sentencing, he was given credit for time served and granted three years of supervised probation. The charges were not dismissed. His probation ended on November 4, 2017.
On July 29, 2015, defendant received a notice to appear from immigration authorities. He subsequently was taken into federal custody based on his conviction.
On August 28, 2017, pursuant to Penal Code section 1473.7, defendant filed a motion to vacate his conviction and withdraw his guilty plea. Following a contested hearing, the motion was denied. A timely notice of appeal was filed.
DISCUSSION
Defendant contends the trial court erred when it denied his motion to vacate his conviction. The heart of his argument is that neither the court taking his plea nor defense counsel properly advised him of the immigration consequences of his guilty plea. We disagree and affirm the denial of his motion to vacate the plea.
At the outset, we note both the People and defendant agree that we are to apply an abuse of discretion standard of review in evaluating whether the trial court properly denied his motion to vacate the plea. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
Because of their agreement the standard of review is abuse of discretion, we need not resolve the People's concern that People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75-76, requires that we apply a de novo standard of review. --------
The plea form defendant signed reflects defendant initialed box number 7d, which stated that, if he was pleading guilty to an aggravated felony, which was defined on the back of the form, and was not a U.S. citizen, "then [he] will be deported, excluded from admission to the U.S., and denied naturalization." The parties agree that count 1 charged an aggravated felony. During the January 24, 2014 hearing at which he entered his plea, defendant stated he had gone over the form carefully with his attorney and understood the form. The court specifically told defendant: "If you are not a U.S. citizen, you will be deported, excluded from admission to the United States, and denied naturalization." He responded that he understood. Following his plea, defendant's sentencing was continued to allow him to comply with the two conditions (i.e., completion of both an outpatient drug treatment program and classes for the CPA exam). In return, the People agreed to dismiss count 1.
Defendant urges he was confused by the trial court's statement that "[t]he conviction doesn't take place until sentencing." He alleges he believed that, if the conviction on count 1 was dismissed, he could not be deported.
The initial problem with defendant's position is that he entered a guilty plea to count 1 on January 24, 2014. The guilty plea triggered deportation. The court's statement was no more than a notation that there would not be a conviction for count 1 if, on the date set for sentencing, defendant demonstrated he complied with the requirements of the plea agreement. Had defendant complied with the two requirements, the result would have been a dismissal of count 1. He did not comply and count 1 was not dismissed. He therefore stood convicted of the aggravated felony that resulted in deportation. Given this scenario, what he believed or did not believe about when the conviction was to take place is irrelevant. Relatedly, because defendant did not comply with the conditions that would have resulted in dismissal of count 1, no prejudice can be shown.
Defendant's argument that his attorney did not counsel him properly is also without merit. At the motion to vacate his plea, defendant's trial attorney testified. He stated he tried, without success, to negotiate a disposition that would shield defendant from deportation. He also stated that he discussed the change of plea form and expressly told defendant that if he pled guilty he could not become a citizen. He further stated that defendant asked if the plea would result in immediate deportation and he told defendant that, because there was not then an immigration hold on him, he probably would not be immediately deported. Importantly, he informed defendant that at the time of the plea he would be considered convicted for purposes of immigration law and even a conviction of count 3 would trigger deportation. Defendant's trial counsel gave defendant the name of an immigration attorney if he had any questions about the effect of his plea on his immigration status. Apparently, defendant retained private counsel then returned to his defense counsel. Defendant informed his attorney that he was not worried about immigration consequences. His attorney recommended he "stay under the radar."
Defendant testified he did not expect deportation if he complied with the terms of the agreement. However, he acknowledged reviewing the aggravated felony list with his attorney, telling his attorney that he was not worried about immigration, and he stated he reviewed the consequences of his plea with counsel as described on the change of plea form. As we have noted, defendant's expectations if he complied with the terms of the plea bargain do not assist his argument because he did not comply with those terms.
In denying defendant's motion to vacate his plea, the trial court made specific findings. Among them, it found defense counsel went over the aggravated offenses list with defendant and defendant understood for immigration purposes it meant he would be convicted immediately upon pleading guilty. The trial court concluded that, when defense counsel told him to "stay under the radar," counsel meant he should stay away from authorities who could deport him if they had contact with him. The court also noted defendant was not new to immigration proceedings.
On this record, we thus conclude the court properly exercised its discretion in denying defendant's motion to vacate his plea, as the record contains ample evidence to show he was fully apprised by defense counsel and the court of the consequences of his guilty plea.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.