Opinion
H051909
12-19-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE ACOSTA MUGAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 178058
BAMATTRE-MANOUKIAN, ACTING P. J.
I. INTRODUCTION
In 1995, defendant Jose Acosta Mugas was convicted by plea of lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions.
All further statutory references are to the Penal Code.
In 2023, defendant filed a petition to vacate his conviction on the ground that his prior trial counsel and the sentencing court failed to advise him of the adverse immigration consequences of his plea. (§ 1473.7, subd. (a)(1).) The trial court denied the petition after finding that defendant failed to show prejudicial error.
Defendant filed a notice of appeal from the trial court's order denying his petition to vacate his conviction. Defendant's appointed counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 that did not raise any issues and asked this court to conduct an independent review of the record. We notified defendant that pursuant to Delgadillo, he may submit a supplemental brief on his own behalf and that failure to do so may result in the appeal being dismissed as abandoned.
Defendant has filed a supplemental brief. For reasons that we will explain, we will affirm the trial court's order denying defendant's petition to vacate his conviction.
II. BACKGROUND
As defendant was convicted by plea, the summary of his offense is taken from the probation report, which was based on a police report.
In October 1994, defendant, who was 43 years old, planned to meet the victim's mother for a first date. A few days beforehand, defendant called the mother, but he ended up speaking to the 13-year-old victim because her mother was not at home. Defendant eventually picked up the victim, went to a store to rent an X-rated movie, and took her to his home to watch it. Defendant asked the victim if she wanted to do anything that she had seen in the movie, and the victim declined. While defendant was driving the victim to her home, he touched her genital area over her pants and tried rubbing her in in the same area a couple of times. He also pulled her hand to touch his penis over his clothing several times while she repeatedly pulled her hand away. Defendant called the victim several times thereafter.
The victim told her mother about the incident, and the police were contacted. The victim reported that in one of defendant's calls to her, he said that he was masturbating and he expressed a desire to have sex with her. During a recorded phone call with the victim, defendant stated that he was excited when he touched her between her legs, expressed his desire to have sex with her, and explained what he wanted to do. When the victim stated that she was only 13 years old, defendant responded that she was old enough to" 'get turned on.'" Defendant described some of the scenes from the X-rated movie that they had watched, and he asked if he could pick her up. The police were able to locate the store where defendant rented the movie and were able to verify that he rented the movie using his credit card. When defendant was interviewed by the police, he admitted knowing that the victim was 13 years old. He also admitted putting her hand on his crotch area while driving her home. Defendant further stated that he was holding the victim's hand when their hands rested on her crotch/leg area.
B. Defendant's Conviction
Defendant was charged by complaint in November 1994, with forcible lewd act on a child under the age of 14 (§ 288, former subd. (b)). In January 1995, the complaint was amended on motion of the prosecutor to add count 2 for lewd act on a child under the age of 14 (§ 288, subd. (a)). Defendant pleaded no contest to count 2 with the understanding that he would receive a three-year "[t]op" prison sentence, he would undergo a psychological evaluation under section 288.1 to assess his suitability for probation, and the remaining count would be submitted for dismissal at the time of sentencing. The trial court found that defendant's plea was "knowingly, intelligently, [and] voluntarily entered."
The probation report indicated that defendant was born and raised in the Philippines. He arrived in the United States in 1986, when he was about 35 years old. At the time of his conviction in 1995, he was 44 years old.
In April 1995, after receipt of the section 288.1 report, the trial court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions, including that he serve one year in county jail. Execution of the jail sentence was stayed for several months "for work furlough." (Capitalization omitted.) The remaining count was dismissed.
C. Defendant's First Petition to Vacate His Conviction
In July 2021, defendant, who was represented by new trial counsel, filed a petition under section 1473.7 to vacate his conviction on the ground that new evidence established that he was innocent. In support of the petition, defendant filed a declaration from the victim, who stated that when she was 13 years old, defendant "never touched [her] sexually" and that they "did not engage in any sort of sexual conduct." She indicated that they met again in 2014, and that they remained in contact thereafter. Defendant filed a copy of a marriage certificate reflecting that the pair married in April 2021. The prosecutor opposed the petition, and the trial court denied the petition.
D. Defendant's Second Petition to Vacate His Conviction
On October 6, 2023, defendant filed a second petition to vacate his conviction under section 1473.7. He was represented by the same attorney who handled the first petition to vacate the conviction. This time, the petition was on the ground that the sentencing court and defendant's original trial counsel failed to advise defendant of the adverse immigration consequences of his change of plea. (§ 1473.7, subd. (a)(1).) In a supporting declaration dated March 7, 2022, defendant stated, "At the time of my change of plea in this action in 1995, I recall no discussion of possible immigration consequences. I recall no discussion in court at the time I plead no contest, and recall no discussion of the immigration consequences at any time with my attorney, the public defender. I was never informed that I could be deported as a result of my change of plea. If I had known that a plea to this cha[r]ge would have affected my immigration status, I would have looked for a different way to resolve the matter."
The prosecutor (not the original prosecutor who appeared at defendant's change of plea hearing) filed opposition to the petition. The prosecutor contended that the petition was untimely, that defendant knew and understood the potential adverse consequences of his plea, and that he failed to show prejudicial error. On the latter point, the prosecutor contended that "this case was a slam dunk" and that defendant "did not have a viable defense at trial." In this regard, the prosecutor referred to the recorded phone call between the victim and defendant and his admissions to the police. The prosecutor argued that "[g]iven the lack of a viable defense . . . and given the impossibility of obtaining an immigration-neutral offer, [defendant] has failed to show that it is 'reasonably probable' that he would have rejected the People's offer and gone to trial."
The original prosecutor from defendant's change of plea hearing submitted a declaration, stating that he did not have a sufficient recollection of the change of plea hearing, which occurred more than 20 years ago. He stated, however, that during the no contest plea, he "filled out a felony voir dire checklist, checking off specific admonitions given by the court to the defendant. These were done at the time of the admonitions and when the admonitions were fresh in [his] memory and were made truthfully. It is also a document that attorneys in [his] office ma[d]e in the regular course of business, made at or near the time of the plea, in order to record and ensure that courts are providing the proper advisements to defendants at the time of their pleas." Attached to the declaration was the checklist. On the checklist, in a section entitled "consequences of plea" (capitalization omitted), there is a handwritten mark next to the phrase "Deportation, Exclusion, Denial Naturalization if not U.S. Citizen (PC 1016.5)." The original prosecutor also stated in his declaration, "In 1995, if the defense attorney representing defendant had asked me for an immigration-neutral offer, I would have declined to provide one based on my review of the case for public safety reasons."
E. The Hearing and the Order Denying the Second Petition
A hearing was held on defendant's petition on January 8, 2024. Defendant's trial counsel stated that he could not find anything in the case file to indicate that defendant was given an immigration advisement. Counsel stated that if defendant was called to testify, he would testify that "he was not advised of his immigration rights back in 1995." Counsel indicated that defendant and his wife were present and willing to testify if the trial court wanted to hear from them. The court responded that it was up to counsel to determine what evidence to present. Counsel indicated that defendant would not have anything to add beyond his declaration. The prosecutor contended that even if defendant was not aware of the immigration consequences, there was no prejudice. The prosecutor argued that the declaration from the original prosecutor indicated that there "would have been no alternative disposition." Further, "defendant received a huge benefit when he took his plea in 1995 by pleading to a probation eligible offense, a reduction down from a prison only offense, that 288(b)."
After a brief recess, the trial court denied defendant's petition. In a written order, the court stated that even if defendant had shown error, he failed to show the error was prejudicial. The court observed that defendant's declaration "says very little about the ties he had to this country at the time of his plea." The court observed that defendant was born and raised in the Philippines, was in his 40's at the time of his conviction, and had been in the United States for nine years at the time of his plea. The court further stated that it did not appear that defendant was married to a United States citizen or had any children who were United States citizens at the time of the conviction. The court thus determined that at the time defendant entered his no contest plea, "he had lived most of his life outside of this country, had only been here for 9 years, and does not appear to have had strong ties to anyone or any community here."
The trial court also found that defendant failed to establish that the conviction was "currently causing or has the potential to cause removal [or] the denial of an application for an immigration benefit, lawful status, or naturalization." In this regard, the court stated that it was "not clear what his immigration status was a[t] the time of his plea or whether he is subject to deportation or some other adverse immigration consequence as a result of this conviction." The court believed that defendant had "some sort of legal status in this country because his social security number is in some of the exhibits." The court thus stated that defendant's "immigration status at the time of his plea is not known and he has not shown that this conviction is currently causing or has the potential to cause his deportation."
Lastly, the trial court determined that defendant's petition was timely notwithstanding the prosecutor's argument to the contrary.
F. The Current Appeal
Defendant filed a notice of appeal from the trial court's January 8, 2024 order denying his second petition to vacate his conviction.
III. DISCUSSION
A. General Legal Principles Regarding Section 1473.7
"[S]ection 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is 'legally invalid due to prejudicial error damaging [their] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.' (Pen. Code, § 1473.7, subd. (a)(1); see id., subd. (e)(1) ....)" (People v. Espinoza (2023) 14 Cal.5th 311, 316 (Espinoza).) "The defendant must first show that he [or she] did not meaningfully understand the immigration consequences of his [or her] plea." (Id. at p. 319.) The defendant "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." (§ 1473.7, subd. (e)(1).)
"Next, the defendant must show that his [or her] misunderstanding constituted prejudicial error. '[P]rejudical error . . . 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.' [Citation.]" (Espinoza, supra, 14 Cal.5th at p. 319, citing People v. Vivar (2021) 11 Cal.5th 510, 529.) "To determine whether there is a reasonable probability a defendant would have rejected a plea offer if [the defendant] had understood its immigration consequences, courts must 'consider the totality of the circumstances.' [Citation.] 'Factors particularly relevant to this inquiry include the defendant's ties to the United States, the importance the defendant placed on avoiding deportation, the defendant's priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.' [Citations.] Also relevant are the defendant's probability of obtaining a more favorable outcome if [the defendant] had rejected the plea, as well as the difference between the bargained-for term and the likely term if [the defendant] were convicted at trial. [Citation.]
These factors are not exhaustive, and no single type of evidence is a prerequisite to relief." (Espinoza, swpra, at pp. 320-321.)
"Ties to the United States are an important factor in evaluating prejudicial error under section 1473.7 because they shed light on a defendant's immigration priorities. [Citation.] . . . Depending on the strength of a defendant's community ties, 'the prospect of deportation' may be' "an integral part"' or' "the most important part"' of the defendant's 'calculus in responding to certain criminal charges.' [Citation.] Community ties may be established by length of residence; immigration status; lack of connection to the country of origin; connections to family, friends, or the community; work history or financial ties; or other forms of attachment. [Citations.]" (Espinoza, supra, 14 Cal.5th at p. 321.)
"A defendant must provide '" 'objective evidence'"' to corroborate factual assertions. [Citation.] Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges the defendant faced. [Citations.]" (Espinoza, supra, 14 Cal.5th at p. 321.)
"We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he [or she] would have rejected the plea offer had he [or she] understood its immigration consequences. [Citation.]' "[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law."' [Citation.] When courts engage in independent review, they must give deference to the trial court's factual determinations if they are based on '" 'the credibility of witnesses the [superior court] heard and observed.'"' [Citation.] But when the trial court's 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. [Citation.] Because the trial court here conducted no evidentiary hearing, there is no basis for deference, and 'it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.' [Citation.]" (Espinoza, supra, 14 Cal.5th at pp. 319-320.)
B. Analysis
We understand defendant to contend in his supplemental brief that (1) he established prejudicial error; (2) he had sufficient ties to the United States at the time of his conviction, and his new trial counsel at the time of the petition to vacate the conviction did not advise defendant that he needed to mention these ties; and (3) his original trial counsel and the original prosecutor knew his immigration status at the time of his plea, and the trial court in denying his petition to vacate the conviction failed to consider the impact of his conviction in relation to federal immigration law.
Assuming, without deciding, that defendant did not meaningfully understand the immigration consequences of his plea (see § 1473.7, subds. (a)(1), (e)(1); Espinoza, supra, 14 Cal.5th at pp. 316, 320), we are not persuaded by defendant's contention that he established prejudicial error below. As the trial court observed, defendant's declaration provided "very little [information] about the ties he had to this country at the time of his plea." The court properly determined that at the time defendant entered his no contest plea, "he had lived most of his life outside of this country, had only been here for 9 years, and [did] not appear to have had strong ties to anyone or any community here."
In defendant's supplemental brief in this court, we understand defendant to contend that the trial court, in denying the petition to vacate his conviction, improperly relied on a "ruling by the Fifth Appellate District in People v. Espinoza" and a "ruling by the Fourth Appellate District in People v. Vivar," both of which "had already been reversed by the California Supreme Court." The trial court's written order, however, reflects that the trial court cited and relied on the California Supreme Court's decisions in Espinoza and Vivar, not the Court of Appeal decisions that had been reversed.
To the extent defendant contends that his showing of prejudice was the same as the defendant's showing in People v. Camacho (2019) 32 Cal.App.5th 998, we are not persuaded. In Camacho, among other facts, the defendant came to the United States when he was two years old, had remained in the country for decades, and at the time of the plea he was married to a United States citizen with a son who was also a United States citizen. (Id. at p. 1011.) In contrast, defendant in this case came to the United States when he was about 35 years old, and he suffered the lewd conduct conviction nine years later. Nothing in the record indicates that he was married to an American citizen at the time of his plea, and defendant does not claim to have any children who were American citizens at the time of the plea.
Defendant argues that certain statements by his trial counsel in the petition to vacate the conviction were "proof[] of prejudicial error." However, assertions by counsel in a petition or motion do not constitute evidence. (See Espinoza, supra, 14 Cal.5th at p. 321 [factual assertions must be corroborated by evidence, such as by declarations].)
Defendant contends that under section 1473.7, subdivision (e)(4), a "plain writing or recitation" stating that he did not understand or know the potential adverse immigration consequences of his plea at the time he pleaded guilty or no contest "is sufficient to prove prejudicial error." Contrary to defendant's contention, subdivision (e)(4) of section 1473.7 does not provide that such a statement by a defendant is sufficient to prove prejudicial error. This subdivision instead addresses the finding that the trial court, not a defendant, is required to make. Specifically, subdivision (e)(4) of section 1473.7 states, "When ruling on a motion . . ., the only finding that the court is required to make is whether the conviction 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."
We also understand defendant to dispute the strength of the prosecution's case against him, including whether the victim would be willing to testify against him. Defendant does not, however, address the recorded phone call where he apparently expressed excitement about touching the victim between her legs, expressed his desire to have sex with her, and expressed an understanding that the victim was only 13 years old.
Defendant also makes factual assertions about his ties to the United States. None of these assertions are supported by citations to the record on appeal. Even if we considered them, defendant fails to demonstrate error in the trial court's denial of the petition to vacate his conviction.
For example, defendant refers to his "ties to the United States" that occurred after he entered his plea, such as his need to take care of his "U.S. citizen wife." However, the relevant timeframe for evaluating defendant's ties to the United States is at the time of his 1995 plea. (People v. Mejia (2019) 36 Cal.App.5th 859, 866 [agreeing with the defendant's contention that the "key to [section 1473.7] is the mindset of the defendant and what he or she understood-or didn't understand-at the time the plea was taken"]; see Espinoza, supra, 14 Cal.5th at p. 319 [prejudicial error" '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' "].) The record reflects that defendant married his wife in 2021, which is well after he entered his plea in 1995.
Regarding the relevant timeframe, the record reflects that defendant arrived in the United States in 1986 when he was about 35 years old, and that he suffered the lewd conduct conviction nine years later in 1995. Defendant states in his supplemental brief that at the time of his 1995 conviction, his parents were still in the Philippines, and his parents "had no way of coming to the United States to be U.S. citizen[s]." Defendant did not own any real estate in the United States, and he had "decided . . . not to have any children who can be U.S. citizen[s] because [his] income was not enough to raise a child." Defendant himself acknowledges in his supplemental brief that he "did not have much ties other than being employed in [the United States] for 9 years and having a U.S. bank account."
We determine that defendant fails to demonstrate "prejudicial error" under section 1473.7, subdivision (a)(1), meaning" 'a reasonable probability that [he] would have rejected the plea if [he] had correctly understood its actual or potential immigration consequences'" (Espinoza, supra, 14 Cal.5th at p. 319). Accordingly, the trial court did not err in denying defendant's petition to vacate his conviction.
IV. DISPOSITION
The January 8, 2024 order denying defendant's petition to vacate his conviction under Penal Code section 1473.7, subdivision (a)(1) is affirmed.
WE CONCUR
DANNER, J. WILSON, J.