Opinion
E080642
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. EDDIE MARTINEZ, Defendant and Appellant.
Arturo Burga for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct.No. SWF005029, Albert J. Wojcik, Judge.
Arturo Burga for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Eddie Martinez contends the trial court erred in denying his motion under Penal Code section 1473.7 to vacate his 2003 plea-bargain conviction for unlawful sexual intercourse with a minor, i.e., statutory rape. (§ 261.5, subd. (c), hereafter § 261.5(c).) The minor, his girlfriend, is now his wife.
All further undesignated statutory references are to the Penal Code unless the context indicates otherwise, such as a reference to federal immigration legislation in a case quotation.
Defendant argues his conviction made him deportable at the time of his plea, yet he was not advised as much. He contends that the fact that "a noncitizen was unaware of the actual, as opposed to possible, consequences of his guilty plea" supports setting aside his conviction so he can withdraw the plea. Put another way, he asserts that because he was not aware he faced "mandatory removal and other disastrous immigration consequences" for a conviction under section 261.5(c), the trial court erred in denying his section 1473.7 motion.
Notwithstanding the foregoing, the sole ground on which defendant asserts adverse immigration consequences from his 2003 conviction is his contention that it may be considered an "aggravated felony" as "sexual abuse of a minor." (8 U.S.C. § 1101(a)(43)(A).) The United States Supreme Court, however, holds squarely that violation of section 261.5(c) does not constitute an aggravated felony as sexual abuse of a minor under the relevant immigration statutes, including title 8 of the United States Code section 1101(a)(43)(A). (Esquivel-Quintana v. Sessions (2017) 581 U.S. 385, 391 (Esquivel-Quintana).) As defendant acknowledges, we engage in independent review of a trial court's grant or denial of a motion made pursuant to section 1473.7. Defendant does not show reversible error under that standard, and we therefore affirm the trial court's ruling.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant's appeal turns on the legal rules related to whether section 261.5(c) is an offense with immigration consequences, as resolved in Esquivel-Quintana, we limit our background discussion accordingly.
Defendant in his moving papers below to vacate his 2003 plea conviction stated he was arrested that year for violating "Penal Code 261.5(c) while I was with my friend at the time, who happens to be now my wife and the mother of my three children." According to defendant's declaration, he had "just turned 18 years old." The arresting officer's police report reflects that defendant admitted he knew the minor, his girlfriend, was 15 years old. The officer's report also reflects that he confirmed with the minor that she and the defendant were dating, and further indicates they had intercourse in defendant's vehicle for a brief period before she changed her mind, defendant complied with her request to stop, and they were getting dressed when the officer approached the vehicle. The officer arrested defendant at the scene and he was charged with unlawful sex with a minor more than three years his junior. (§ 261.5(c).)
The date of birth defendant provided in his declaration supporting his motion indicates that he was 19 years old at the time he was arrested.
Defendant pled guilty to the charge on August 14, 2003. On his change of plea form, under "consequences of plea," he initialed paragraph six, which provided: "If I am not a citizen of the United States, I understand that this conviction 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." He also initialed next to the following acknowledgment: "I have had an adequate time to discuss with my attorney (1) my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses I may have to the charges against me."
The clerk's transcript for defendant's change of plea hearing reflects that he was advised of the "charges and consequences of [his] plea." The minutes further state that the court found defendant entered his plea freely and voluntarily and that he "knows and understands [his] constitutional rights, [the] nature of [the] charges and consequences of [his] plea." Pursuant to his plea terms, defendant was placed on probation for three years with the condition that he serve 270 days in jail.
Defendant's motion to vacate his plea in June 2022, nearly 19 years later, stated the basis for his motion, including what happened next after his jail term: "Mr. Martinez is a citizen of Mexico who has been living in the United States since 1999. When he was 19 years old [in 2003], he was arrested because he was caught having sex with his girlfriend, who at the time was a minor of the age of 15. Th[e] minor . . . married Mr. Martinez in 2008 and they have three children together. Mr. Martinez has no criminal history other than this case. [¶] Mr. Martinez was represented by the office of the public defender for the County of Riverside who advised him to plead guilty to PC 261.5 as a plea deal. Mr. Martinez was young and inexperienced with the law, so he plead guilty as his public defender advised him to."
The motion continued: "After completing his sentence, Mr. Martinez was picked up by Immigration and Customs Enforcement (ICE) who then placed him in removal proceedings. Mr. Martinez was not aware of the immigration consequences of pleading guilty to California Penal Code 261.5(c) and is therefore requesting this court to vacate his conviction."
The prosecutor opposed the motion and, following briefing and argument, the trial court denied it at the hearing on the motion. The court noted defendant initialed his plea form next to the statement, "I have had adequate time to discuss with my attorney my rights, consequences of the plea, and the defenses." The court also pointed out that defendant initialed paragraph 6 under "consequences of the plea," which provided, "If I am not a citizen of the United States, I understand that this conviction 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."
The court further noted that the "attorney's statement" on the form was signed as well as the "interpreter's statement." The court commented that defendant "was represented by someone who I have known for twenty years or more, who is a very competent defense attorney." The court also indicated familiarity with the interpreter, who had "appeared in front of me hundreds of times [and] does a very competent job." Commenting to defense counsel that "[t]he real key is did your client understand this," referencing defendant's plea form, the court stated "it appears to me that he had knowledge because this form was read to him. The interpreters read them the forms. It was read to him, and he initialed the forms."
Denying the motion, the court stated, "I am not convinced that he was unaware that there could be potential serious consequences." The court concluded: "There's insufficient evidence to support an error . . . regarding knowledge. Denied. Motion denied."
DISCUSSION
Defendant contends the trial court erred in denying his motion, while the Attorney General as respondent argues that in our independent review on appeal, we should affirm the ruling. Specifically, respondent argues defendant did not meet his burden under section 1473.7 to demonstrate "prejudicial error" from any misunderstanding he may have had about the immigration consequences of his plea. We agree with respondent.
I. Governing Law and Standard of Review
Section 1473.7 provides that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction" if it "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 conviction or sentence." (Id. subd. (a)(1).) The moving party has the burden of establishing by a preponderance of the evidence that he or she is entitled to relief. (Id. subd. (e)(1).)
The requisite error or legal invalidity "may, but need not," include a finding of ineffective assistance of counsel (IAC). (§ 1473.7, subd. (a)(1); see People v. Mejia (2019) 36 Cal.App.5th 859, 869-871 [reviewing statute's amendment history clarifying that IAC is not required].) Instead, "the focus of the inquiry in a section 1473.7 motion is on the 'defendant's own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.' [Citation.]" (Id. at p. 871, original italics; see, e.g., People v. Alatorre (2021) 70 Cal.App.5th 747, 769 ["the 'error' is that the petitioner subjectively misunderstood the immigration consequences of the plea"].)
Thus, to prevail on a motion under section 1473.7, a defendant must satisfy two elements. "The defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error." (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).) Prejudicial error in this context "means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences." (People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar).) If the defendant meets his or her burden of establishing prejudicial error, the court must grant the motion and allow the defendant to withdraw the plea. (Id. at p. 523.)
An express predicate for "prejudicial error" warranting relief under section 1473.7 is that it must relate to "the actual or potential adverse immigration consequences of a conviction or sentence." (§ 1473.7, subd. (a)(1).) The defendant's burden to obtain relief under the statute includes establishing those consequences. (See People v. Coca (2023) 96 Cal.App.5th 451, 460 (Coca).) Hence in Coca, because the defendant's conviction there was "not an aggravated felony" under federal immigration law, she "did not carry her burden under section 1473.7[, subdivision] (e)(1) of demonstrating that the conviction had the potential of subjecting her to removal." (Coca, at p. 460 [receiving stolen property conviction did not constitute an aggravated offense for immigration purposes].)
The issues raised by a section 1473.7 motion, "while mixed questions, are predominantly questions of law." (Vivar, supra, 11 Cal.5th at p. 524.) As such, we apply an independent standard of review to evaluate whether a defendant is entitled to relief. (Espinoza, supra, 14 Cal.5th at p. 319; Vivar, at p. 527.)
Under this standard, "'an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.'" (Vivar, supra, 11 Cal.5th at p. 527.) The appellate court must give deference to the trial court's factual findings if they are based on "'"the credibility of witnesses the [superior court] heard and observed."'" (Ibid.) However, "courts reviewing such claims generally may '"reach a different conclusion [from the trial court] on an independent examination of the evidence . . . even where the evidence is conflicting."'" (Ibid.) In cases where the trial court's factual findings "derive entirely from written declarations and other documents," the trial court and the reviewing court "'are in the same position,'" and no deference is owed. (Id. at p. 528.) Accordingly, in determining whether the trial court erred in denying a motion to vacate a conviction, "it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (Ibid.)
II. Analysis
Our analysis begins with federal law. "The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U.S.C. § 1101 et seq., . . . [¶] . . .allows the Government to deport various classes of noncitizens, [including] those who are convicted of certain crimes while in the United States, . . . [8 U.S.C.] § 1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for certain forms of discretionary relief from removal, like asylum (if he has a well-founded fear of persecution in his home country) and cancellation of removal." (Moncrieffe v. Holder (2013) 569 U.S. 184, 187 (Moncrieffe).)
Cancellation of removal can include adjusting an individual's immigration status to that of "an alien lawfully admitted for permanent residence" if certain criteria are met, including continuous physical presence in the country for 10 years and where "removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States." (8 U.S.C. § 1229b(b)(1)(A) &(D); see also 8 U.S.C. § 1255(i)(2)(A) [setting out conditions for adjustment of status "of certain aliens physically present in the United States"].) As the high court has explained, however, "if a noncitizen has been convicted of one of a narrower set of crimes classified as 'aggravated felonies,' then he is not only deportable, [citation] but also ineligible for these discretionary forms of relief. [Citations.]" (Moncrieffe, supra, 569 U.S. at p. 187, fn. omitted.)
Defendant contends he established adverse immigration consequences from his section 261.5(c) conviction because it "was an aggravated felony at the time of [his] plea and resulted in his deportation." Respondent argues defendant did not establish he was deported because of his criminal conviction rather than for another reason. (See, e.g., 8 U.S.C. §§ 1227(a)(1)(B) [authorizing deportation for unlawful presence in United States], 1185 [entry unlawful except in compliance with cross-border travel controls].) In any event, respondent relies on Esquival-Quintana as having settled that section 261.5(c) is not an aggravated felony within the meaning of federal immigration law. Respondent is correct that Esquival-Quintana resolves the matter.
The INA identifies "sexual abuse of a minor" as an aggravated felony (8 U.S.C. § 1101(a)(43)(A)), but does not expressly define what constitutes the offense. (Esquivel-Quintana, supra, 581 U.S. at p. 388.) In Esquivel-Quintana, the Board of Immigration Appeals (Board) upheld a removal order based on the immigration judge's conclusion that violation of section 261.5(c) amounts to sexual abuse of a minor and is therefore an aggravated felony for purposes of federal immigration law. (Esquivel-Quintana, at p. 388.) The Board reasoned that because California's bar on statutory rape embodied in section 261.5(c) requires "'a meaningful age difference between the victim and the perpetrator'"-namely, three years-that qualified "[i]n its view" as an aggravated felony. (Esquivel-Quintana, at pp. 388-389.)
Section 261.5(c) criminalizes "unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator." The statute defines a minor as a nonspouse who is under 18 years old. (§ 261.5, subd. (a).) The relevant statutory language was the same at the time of defendant's conviction in 2004. (Stats. 1999, c. 853, § 10.)
The Supreme Court granted certiorari and squarely rejected the notion that section 261.5(c) is an aggravated felony under the INA. The high court found no merit in the government's appeal for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 to the Board's interpretation of "sexual abuse of a minor." Instead, the court unanimously found the Board's construction of the phrase to have it reach section 261(c) was "unambiguously foreclose[d]" by "[t]he structure of the INA, a related federal statute, and evidence from state criminal codes." (Esquivel-Quintana, supra, 581 U.S. at pp. 397-398.)
The Supreme Court explained that the INA "makes aliens removable based on the nature of their convictions" and, under longstanding high court interpretative guidelines, a state law conviction "is . . . an 'aggravated felony' under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor." (Esquivel-Quintana, supra, 581 U.S. at p. 389-390, italics added.)
Thus, because the gravamen of section 261.5(c) lies in the age differential it proscribes, and the statute makes no reference to the age of the victim except that he or she must be under age 18, the relevant minimum "conduct criminalized under this provision would be . . . consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21." (Esquivel-Quintana, supra, 581 U.S. at p. 390.)
The court explained that "[i]f those acts do not constitute sexual abuse of a minor under the INA, then petitioner was not convicted of an aggravated felony and is not, on that basis, removable." (Ibid., italics added.)
As indicated ante, the court found from the structure of the INA and similar "context" that Congress did not intend such conduct to constitute sexual abuse of a minor. (Esquivel-Quintana, supra, 581 U.S. at p. 398.) Consequently, Esquivel-Quintana established "categorically" that "a conviction pursuant to [section 261.5(c)] is not an aggravated felony" under federal immigration law. (Esquivel-Quintana, at p. 391.) Defendant's contrary claim in his motion under section 1473.7 seeking to have his section 261.5(c) conviction vacated because it is an aggravated felony therefore fails.
Resisting this conclusion, defendant in his reply brief notes that while the Supreme Court held in Esquivel-Quintana that a conviction under section 261.5(c) does not qualify as an aggravated felony, the court indicated that that "the generic federal definition of 'sexual abuse of a minor' under [title 8 United States Code section] 1101(a)(43)(A)" could apply to state "statutory rape offenses" that "require[] the age of the victim to be less than 16." (Esquivel-Quintana, supra, 581 U.S. at p. 398.) Defendant's girlfriend was 15 years old at the time he committed statutory rape. On that basis, he argues he has demonstrated potential adverse consequences from his section 261.5(c) conviction because "[t]he Immigration Courts may well draw the conclusion that intercourse with a minor under age 16 is sex abuse of a minor for purposes of removal."
Not so. As Esquivel-Quintana explained, "to determine whether an alien's conviction qualifies as an aggravated felony," reviewing courts "'employ a categorical approach by looking to the statute . . . of conviction, rather than to the specific facts underlying the crime.'" (Esquivel-Quintana, supra, 581 U.S. at p. 389.) Thus, "the INA asks what offense the noncitizen was 'convicted' of [citation], not what acts he committed. '[C]onviction' is 'the relevant statutory hook'" (Moncrieffe, supra, 569 U.S. at p. 191, fn. omitted), rather than "the noncitizen's actual conduct." (Id. at p. 190.) Precisely because the elements of section 261(c) do not require that the victim was under 16 years old, "a conviction pursuant to it is not an aggravated felony under [title 8 United States Code section] 1101(a)(43)(A)." (Esquivel-Quintana, at p. 391.)
Left unmentioned by defendant is another subdivision of section 261.5- subdivision (d). That subdivision does criminalize "unlawful sexual intercourse with a minor who is under 16 years of age" (italics added), and did so at the time of defendant's conviction. (Stats. 1999, ch. 853, § 10.) But it could not conceivably be applied to defendant because it required (ibid.) and still requires that the adult perpetrator was 21 years of age or older. (§ 261.5, subd. (d).) Defendant was 19 years old at the time of his offense according to his declaration in his moving papers. Thus, his conduct could not then nor now have subjected him to a conviction for statutory rape in California that would qualify as an aggravated felony under federal law.
Section 261.5, subdivision (d), states: "A person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
Defendant also suggests without elaboration in his reply brief that "it is possible Penal Code section 261.5(c) would be charged as a deportable crime of child abuse, neglect or abandonment under INA 237(a)(2)(E)(i)." (Italics added.) That INA provision, codified in title 8 United States Code section 1227, makes crimes of domestic violence, stalking, "or a crime of child abuse, child neglect, or child abandonment . . . deportable." (8 U.S.C § 1227(a)(2)(E)(i).)
Defendant, however, makes no attempt to explain how a generic, nonsex offense would apply to his circumstances when the Supreme Court has held his specific statutory rape offense is not grounds for deportation. Defendant provides no authority and, other than his one-sentence assertion, no reasoned argument. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) When, as here, there is "no legal analysis at all," but "simply a conclusion, unsupported by any explanation," the appellant "forfeit[s] the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 410.) More specifically, in our independent review, defendant has not carried his burden under section 1473.7 of demonstrating potential adverse immigration consequences to warrant vacating his section 261.5(c) conviction. (Coca, supra, 96 Cal.App.5th at p. 460.)
Defendant argues he showed actual immigration consequences from his conviction in that he was deported following his 2003 jail term, but respondent is correct that defendant did not establish he was removed on that basis. Moreover, defendant's rationale is foreclosed by the terms of section 1473.7, subdivision (e)(1). That subdivision provides that in addition to establishing entitlement to relief by a preponderance of the evidence, the moving party "shall also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization." (Ibid., italics added.) This court has interpreted that provision to require a substantive showing of potential adverse immigration consequences. (Coca, supra, 96 Cal.App.5th at p. 460.)
Furthermore, even absent that express statutory requirement, defendant's reliance on his prior deportation would fail because the purpose of section 1473.7 is remedial to correct for a defendant's error in misunderstanding immigration consequences. Vacating defendant's section 261.5(c) conviction would do nothing to redress a prior removal that, under Esquivel-Quintana, cannot be founded on a section 261.5(c) conviction. Defendant does not argue that his deportation itself precludes him from seeking to adjust his immigration status, but rather that his conviction for an aggravated felony does so. To the contrary, however, because Esquivel-Quintana has eliminated any possible confusion over whether section 261.5(c) is an aggravated felony, defendant has not established the adverse immigration consequences necessary under section 1473.7 to vacate his section 261.5(c) conviction.
DISPOSITION
The trial court's ruling denying defendant's section 1473.7 motion is affirmed.
We concur: RAMIREZ, P. J., CODRINGTON, J.