Opinion
A152509
09-27-2018
THE PEOPLE, Plaintiff and Respondent, v. FELIPE ROJAS LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR181288)
Felipe Rojas Lopez moved to withdraw his no contest plea and vacate his convictions (Pen. Code, § 1018), claiming trial counsel rendered ineffective assistance by failing to negotiate a plea that would "mitigate . . . immigration consequences." The trial court denied the motion. On appeal, Lopez claims the court "misinterpreted the law and the evidence presented." We affirm.
Undesignated statutory references are to the Penal Code. Some of our factual summary comes from the probation report. Lopez is also known as Felipe Lopez-Rojas or Felipe Lopez Rojas-Pascual.
FACTUAL AND PROCEDURAL BACKGROUND
Lopez, a native of Mexico, came to the United States in 2001. In September 2016, he and his wife were in the process of getting divorced. On the evening of September 6, Lopez's wife got into a truck with her friend, Jose. Lopez saw his wife getting into the truck and was angry because he "still love[d]" her. Lopez had a key to his wife's sport utility vehicle (SUV). Without his wife's permission, Lopez drove the SUV and followed Jose's truck. When Jose parked, Lopez drove the SUV "directly at" Jose's truck and "slammed head-on" into it. Lopez caused major damage to both vehicles, and emotionally traumatized his wife. Lopez was arrested; he admitted taking his wife's SUV and ramming it into Jose's truck. The prosecution charged Lopez with two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and alleged the charges were serious felonies (§ 1192.7, subd. (c)).
In December 2016, Lopez pled no contest to two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and one count of vehicle theft (Veh. Code, § 10851). Lopez's understanding was the felonies would be non-strike offenses, and that he would receive probation. Lopez signed a written plea form and initialed next to the statement: "I understand that, if I am not a United States citizen, a plea of guilty or no contest could result in my deportation, exclusion from admission to this country, or denial of naturalization." Lopez's attorney (trial counsel) signed the plea form next to the statement: "I have gone over this form . . . with my client. I have explained each of the defendant's rights to the defendant and answered all of the defendant's questions about this form and the plea[.] I have discussed the facts of the case with the defendant and have explained the . . . charges, the elements of the offense(s), any possible defenses, and the consequences of the plea[.]"
At the plea hearing, the court confirmed with Lopez that an interpreter had read him the plea form, and that Lopez understood the form and signed and initialed it. Lopez said he had adequate time to discuss the plea with trial counsel, and that he had no questions about the plea form. At the January 2017 sentencing hearing, the court suspended imposition of sentence and placed Lopez on probation. The court observed "it is quite fortunate for . . . Lopez that he was not convicted of a strike 245 assault with a deadly weapon." In March 2017, Lopez was taken into custody by federal immigration authorities and removal proceedings were initiated. Lopez was "charged as inadmissible to the United States" and an "Immigration Judge" made a formal finding that Lopez was "deportable."
Motion to Withdraw Plea and Opposition
In July 2017, Lopez moved to withdraw his plea and vacate his convictions (§ 1018). Lopez claimed he was denied "effective representation of counsel prior to and during his plea" because trial counsel "did not have adequate knowledge and failed to take basic measures to negotiate a mitigated plea" that "would have avoided . . . immigration consequences." According to the motion, trial counsel "discussed the immigration consequences" with Lopez before the change of plea hearing and advised him "that his best deal was to take the plea . . . , knowing that he would likely suffer immigration consequences." Trial counsel, however, did not advise Lopez of "alternative plea options that might mitigate the immigration consequences. . . . [Trial counsel] focused solely on getting the best deal for the criminal consequences and did not attempt to mitigate the immigration consequences." Lopez argued he was prejudiced by trial counsel's deficient representation.
Lopez offered declarations from two immigration attorneys, one of whom averred Lopez could have avoided "serious immigration consequences" by pleading guilty to crimes that did not involve moral turpitude, such as dissuading a witness or false imprisonment. In his declaration, Lopez asserted trial counsel told him he "may or may not have problems with immigration based on the convictions. . . . [Trial counsel] said if he was able to negotiate probation, then [Lopez] would not be taken directly into Immigration Custody. [Trial counsel] did not explain why the conviction might result in immigration problems or what the problems might be." Lopez accepted the plea because he believed if he received probation, he might "avoid being taken into ICE custody." Lopez stated that had he "known that the case would constitute a deportable offense under immigration law, [he] would have definitely insisted that [his] attorney negotiate an alternate plea that would mitigate the immigration consequences."
Attorney Jennifer M. Sheetz's declaration averred she spoke with trial counsel and attached a letter she wrote to trial counsel memorializing the conversation. According to the letter: (1) trial counsel knew Lopez was a non-citizen but did not consult with an immigration attorney before Lopez entered his plea; (2) trial counsel advised Lopez he would likely suffer immigration consequences as a result of the convictions; (3) trial counsel tried to negotiate the plea to avoid strike offenses and obtain a probation disposition; and (4) trial counsel told Lopez that if he was not satisfied with the consequences of the plea, Lopez could seek advice from another lawyer or take his case to trial.
In opposition, the prosecution argued Lopez had not demonstrated good cause to withdraw the plea, nor entitlement to relief under section 1016.5, because trial counsel advised Lopez of the likely immigration consequences of the plea, and Lopez signed a plea form stating those consequences.
"Section 1016.5(a) requires a trial court, before accepting a plea of guilty or no contest, to explain to a defendant that if the defendant is not a citizen of this country, conviction of the charged offense 'may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization . . . .' " (People v. Arriaga (2014) 58 Cal.4th 950, 957.)
Hearing and Order Denying the Motion
At a hearing on the motion, Sheetz argued Lopez was "misadvised" about the immigration consequences of his plea, and that trial counsel "failed to conduct minimal research into potential other plea options and what the actual immigration consequences would be so that he might consider those in deciding whether or not to [plead] at the time." In response, the prosecutor—who had handled "the case from the beginning"—argued Lopez had not shown good cause to withdraw the plea. The prosecutor described the plea negotiations: "I worked extensively with [trial counsel] to try to negotiate this case. There were lots of things that were discussed on how it could be negotiated for a plea deal. And part of that was a request multiple times to offer misdemeanors to the defendant. [¶] Given the conduct, given the dangerousness of the behavior, given all of those things, I didn't feel that was appropriate. I did take immigration consequences into consideration in negotiating the plea deal that was given." The prosecutor added, "And I did read in the . . . motion about the alternative charge that this defendant could have possibly pled to. And those may be possibilities, but I think that it would have required quite a bit of legal fiction. I don't think they were appropriate. And they were never something that I would have offered in this case even taking immigration consequences into consideration." The prosecutor told Sheetz: "I felt that the case had been resolved the best way that it could be given the serious nature and the fact that [Lopez] had been charged with two strikes. And I had taken a plea to something far, far less in contemplation of both his immigration status, as well as the issues of the victim at the time the plea was taken."
The court denied the motion. It determined Lopez had been advised by the court of the potential immigration consequences, and that Lopez had not established good cause to withdraw the plea.
DISCUSSION
Lopez contends the court erred by denying his motion to withdraw the plea and vacate his convictions. "[W]ithin six months after an order granting probation if entry of judgment is suspended, a trial court may permit a defendant to withdraw a guilty plea for 'good cause shown.' [Citation.] 'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea' under section 1018 [citation], and section 1018 states that its provisions 'shall be liberally construed . . . to promote justice.' A defendant seeking to withdraw a guilty plea on grounds of mistake or ignorance must present clear and convincing evidence in support of the claim." (People v. Patterson (2017) 2 Cal.5th 885, 894.) We review the denial of a section 1018 motion for abuse of discretion. (People v. Perez (2015) 233 Cal.App.4th 736, 741.)
A defendant may establish good cause to withdraw a plea under section 1018 by showing he was unaware the plea would result in deportation. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798.) Where "the accused entered his plea of guilty without knowledge of or reason to suspect severe collateral consequences"—such as the possibility of deportation—the trial court may "properly conclude that justice require[s] the withdrawal of the plea." (Ibid.) The rule from Giron does not assist Lopez because he was aware of the immigration consequences when he entered his plea. As demonstrated by the motion to withdraw and supporting declarations, trial counsel "discussed the immigration consequences" with Lopez before the change of plea hearing, and Lopez signed a plea form advising him the convictions would render him subject to removal. The court properly denied the motion because there was no evidence—and certainly no clear and convincing evidence—that Lopez was ignorant of the immigration consequences of the plea. (See People v. Breslin (2012) 205 Cal.App.4th 1409, 1416; People v. Nance (1991) 1 Cal.App.4th 1453, 1456-1457.)
Lopez argues he was entitled to withdraw his plea because trial counsel was ineffective for failing to "negotiate a plea . . . that would have mitigated the immigration consequences." To "challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.) Lopez's claim fails because he cannot establish prejudice—that he would have pled not guilty and taken his case to trial. In his declaration, Lopez stated that had he "known that the case would constitute a deportable offense under immigration law, [he] would have definitely insisted that [his] attorney negotiate an alternate plea that would mitigate the immigration consequences." Tellingly, Lopez did not aver he would have pled not guilty and insisted on going to trial. The reality is that Lopez was not likely to insist on taking his case to trial because there was compelling evidence against him, including his admission of guilt. "In determining whether . . . a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court . . . may consider the probable outcome of any trial." (In re Resendiz (2001) 25 Cal.4th 230, 254, abrogated on another point as state in Padilla v. Kentucky (2010) 559 U.S. 356.) Lopez's plea allowed him to avoid two strike convictions and assured him of a probation disposition, the best feasible resolution trial counsel could obtain. (See People v. Hernandez (1979) 96 Cal.App.3d 856, 865 [no abuse of discretion in denying motion to withdraw plea; "this was a most beneficial disposition for defendant, the one he wanted, bargained for and received—the district attorney later referred to it as 'too good to pass up' "].) The court did not err by denying Lopez's motion to withdraw the plea and vacate his convictions.
Assuming Lopez had averred he would have insisted on going to trial if properly advised, the trial court would have been entitled to reject that assertion as "not supported by an explanation or other corroborating circumstances." (People v. Martinez (2013) 57 Cal.4th 555, 565; In re Alvernaz, supra, 2 Cal.4th at p. 938.) --------
Lopez's ineffective assistance claim is premised on the speculative assumptions that an immigration-neutral plea could have been negotiated and that the prosecution would have agreed to such plea. That Lopez hypothetically could have pled to a "non-deportable offense[s]" such as intimidating a witness or false imprisonment is not persuasive, because the prosecutor unequivocally stated she would not have agreed to a plea with lesser immigration consequences. (See In re Resendiz, supra, 25 Cal.4th 230, 253-254 [noting absence of evidence the prosecutor would have agreed to a plea that would have avoided adverse immigration consequences]; People v. Olvera (2018) 24 Cal.App.5th 1112, 1118 [counsel not ineffective; defendant failed to "identify any immigration-neutral disposition to which the prosecutor was reasonably likely to agree"]; People v. Tapia (2018) 26 Cal.App.5th 942, 944 [rejecting ineffective assistance claim premised on alleged failure to advise defendant of immigration consequences of the plea].)
According to Lopez, trial counsel is ineffective unless he investigates his client's immigration status, researches federal immigration law, and advises his client regarding the specific immigration consequences. Our Supreme Court has held otherwise: "We are not persuaded that the Sixth Amendment imposes a blanket obligation on defense counsel, when advising pleading defendants, to investigate immigration consequences or research immigration law." (In re Resendiz, supra, 25 Cal.4th at pp. 249-250.) To support this argument, Lopez relies on People v. Soriano (1987) 194 Cal.App.3d 1470 and People v. Barocio (1989) 216 Cal.App.3d 99, but these cases do not assist him. In Soriano, the trial attorney testified she was not aware of the immigration consequences of the defendant's guilty plea and had she known of the immigration impact, she would have " 'tried to negotiate the case differently.' " (Soriano, at p. 1480.) In Barocio, the trial attorney's declaration stated he was unaware of the immigration consequences of the plea and conceded he did not discuss them with the defendant. (Barocio, at pp. 109-110.) Here, there is no evidence that trial counsel was unaware of the immigration consequences of Lopez's no contest plea.
DISPOSITION
The order denying Lopez's motion to withdraw the plea and vacate his convictions is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.