Opinion
F084804
09-27-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANGEL OJEDA, Defendant and Appellant.
J. M. Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ian P. Whitney and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County, No. 00CM8965 Michael J. Reinhart, Judge.
J. M. Malik, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ian P. Whitney and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FRANSON, J.
Joseph Angel Ojeda appeals from the denial of his motion under Penal Code section 1473.7, subdivision (a)(1) to vacate his 2000 plea of no contest to two counts of violating section 266c. After being sentenced and serving his prison term, Ojeda was deported to Mexico in 2003.
Unlabeled statutory references are to the Penal Code.
In January 2022, Ojeda filed his motion to vacate his plea on the ground the conviction was "legally invalid due to prejudicial error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [the] conviction or sentence." (§1473.7, subd. (a)(1).) The trial court denied the motion, concluding Ojeda had not met his burden of proving prejudicial error. Ojeda appealed.
We conduct an independent review to determine whether Ojeda established the requisite error in his understanding and prejudice. (People v. Espinoza (2023) 14 Cal.5th 311, 319-320 (Espinoza); People v. Vivar (2021) 11 Cal.5th 510, 526 (Vivar).) Our independent review of the cold record included an evaluation of the factual assertion in Ojeda's declaration that he "did not have any knowledge either specific or general of any potential adverse immigration consequences of [his] plea." This assertion is not credible because it is contradicted by statements about immigration consequences made at Ojeda's change of plea hearing. Weighing this credibility determination and other favorable and unfavorable inferences that may be drawn from the totality of the circumstances, we find Ojeda failed to carry his burden of proof. (See § 1473.7, subd. (e)(1) [preponderance of the evidence].) In other words, Ojeda did not show it was more likely than not that he lacked a meaningful understanding of the adverse immigration consequences of his plea.
We therefore affirm the order denying the section 1473.7 motion.
BACKGROUND
Ojeda was born in Sinaloa, Mexico in January 1954. He was raised by his maternal grandmother and her husband, had no contact with his biological father and, at the time of his plea, did not know his biological mother's whereabouts. Ojeda reported to a probation officer that he received no formal education and was illiterate.
In 1969, when Ojeda was 15 years old, he moved to the United States. In 1977, Ojeda married a woman who was a citizen of the United States. Sometime around 1980 to 1982, Ojeda became a lawful permanent resident. In 2000, at the time of Ojeda's plea, their two sons were approximately 18 and 13 years old and their daughter was 21 years old.
After he came to the United States, Ojeda worked as a farm laborer and earned minimum wage. Prior to his arrest and plea, he had been employed with the same farm labor agency for the previous six years, sometimes working in tomato fields.
Before Ojeda entered the plea that is being challenged by his section 1473.7 motion, he had some experience with California's criminal justice system. In January 1979, he was arrested in Monterey County and charged with vehicular manslaughter under section 192.3, subdivision (a). In November 1980, Ojeda was sentenced to three years of probation with 180 days in jail on the manslaughter charge.
The Charges
A probation report describes the basis for the charges brought against Ojeda. In June 1998, the victim, A.R., and her younger sister went to visit a man, Ojeda's cousin, who represented himself to be a "curandero." The cousin advised A.R. that she was sick, would die the next month, and her only salvation was to have sex with him on three occasions. After further consultations, A.R. finally agreed to have sex with the curandero in order to save her life. Later that June, when A.R. returned to the curandero's home, he informed her that he would not be able to attend to her, but Ojeda would take care of her. Ojeda had sex with A.R. that day and again in July 1998.
A description of a "curandero" as a holy man, healer, and advisor is set forth in People v. Cardenas (1994) 21 Cal.App.4th 927, 931. The defendant in Cardenas held himself out to be a curandero, engaged in sexual relations with various females as part of their treatment, and was convicted of 70 counts of sexual misconduct. (Id. at p. 929.)
Ojeda's cousin also had sex with A.R.'s sister, who was a minor at the time. She reported the offense in September 2000, which resulted in the investigation of events involving A.R. In November 2000, both Ojeda and his cousin were arrested and booked into the Kings County Jail.
On November 15, 2000, a complaint was filed in Kings County Superior Court charging Ojeda with unlawfully inducing a woman to engage in a sexual act by obtaining her consent through false representations made with the intent to create fear and that did induce fear (§ 266c; counts 1, 2) and conspiracy with another to commit a violation of section 266c (§ 182, subd. (a)(1); count 3).
The Plea
At a November 30, 2000 hearing, Laurence E. Meyer, Ojeda's court-appointed attorney from the Kings County Public Defender's Office, informed the trial court that a plea agreement had been reached and stated the terms. The court asked Meyer if he had "fully explained the consequences of the guilty plea along with the rights and defenses to Mr. Ojeda." Meyer answered, "Yes." The court also asked Ojeda a series of questions to confirm that he understood the consequences of his plea, including the maximum possible penalty, victim restitution, the trial rights he was giving up, the possibility of parole and probation, and the need to register as a sex offender under section 290. That series of questions and answers included the following exchange between the trial court, Ojeda, the deputy district attorney (deputy DA), and Meyer. Ojeda was assisted by a certified Spanish language interpreter.
Ojeda's moving papers included a March 2022 printout from the State Bar of California's Web site that listed Laurence Edward Meyer, State Bar No. 135552, as being admitted in September 1988 and becoming inactive on January 31, 2020. At the hearing on the section 1473.7 motion, the trial judge stated he was dead.
"THE COURT: And there may be a victim restitution in addition thereto; do you understand that?
"[O]EDA]: Yes.
"THE COURT: And the maximum fine on this matter is $10,000.00, [deputy DA]?
"[DEPUTY DA]: That's my understanding, your Honor.
"THE COURT: At this time, also, you could be fined up to $10,000.00 plus penalty assessment of $17.00 on every $10.00 or portion thereof; is that correct?
"[O]EDA]: I didn't understand that, no.
"THE COURT: That you could be fined up to $10,000.00 plus penalty assessments on this matter of $17.00 on every $10.00 or portion thereof. In other words, a $10.00 fine I have to put 17 on, makes it 27. If it's a $5.00 I have to add $17,00, makes it $22.00, and there is - it's $17.00 would be $27,000.00. I think.
"MR. MEYER: Maximum fine.
"[O]EDA]: Yes."
When the trial court reached the issue of registration as a sex offender under section 290, the court asked counsel if registration was required. The deputy DA stated he did not think registration was required or it could be, at the court's discretion. Meyer then stated: "We can skip all that. It is." The court relied on Meyer's representation that registration was mandatory, stating:
"THE COURT: All right, thank you. [¶] At this time, Mr. Ojeda, do you understand you must register pursuant to 290 of the Penal Code? That means within ten days of getting out of jail you must register with the chief of police or sheriff's office and every year at your birthday within five days before and after you must register with the chief of police as a sexual violator. Do you understand that? And that is a lifetime commitment.
"[O]EDA]: Yes.
"THE COURT: And that's a new violation of - that makes it a felony. You can go back to state prison on that for three years."
"[O]EDA]: Yes.
"THE COURT: All right. So you understand that?
"[O]EDA]: Yes."
Later in the plea colloquy, the trial court asked Ojeda the following two questions related to immigration consequences:
"THE COURT: And do you understand that if you're an alien exclusion from admission to the United States, deportation or denial of naturalization or amnesty may result from a conviction in this matter?
"[O]EDA]: Yes.
"THE COURT: Do you also understand - currently I understand the law is that if you're sentenced to 12 months in any county jail or any state prison facility it's a mandatory hearing regarding deportation in this matter?
"[O]EDA]: Yes."
After the deputy DA stated the factual basis for the plea, Meyer stated: "Your Honor, he's pleading no contest pursuant to People versus West." After further questions and answers, the trial court accepted Ojeda's plea of no contest to two counts of violating section 266c. The third count for conspiracy was dismissed.
People v. West (1970) 3 Cal.3d 595. In In re Alvernaz (1992) 2 Cal.4th 924, our Supreme Court described a West plea as "a plea of nolo contendere, not admitting a factual basis for the plea." (Id. at p. 932.) Such a plea allows a defendant to take advantage of a plea bargain while still asserting his or her innocence. (People v. Rauen (2011) 201 Cal.App.4th 421, 424; see North Carolina v. Alford (1970) 400 U.S. 25, 3738 [federal equivalent of a West plea].)
Ojeda remained in custody pending sentencing. A probation officer interviewed Ojeda at the jail before finalizing a probation report. The report described Ojeda's account of his personal history, including that he came to the United States in 1969 and that he became a lawful permanent resident around 1980. The report does not explicitly state the probation officer and Ojeda discussed deportation upon release from prison or any other immigration consequences of the conviction or potential sentences. The report, however, referred to the immigration consequences of the plea by stating: "The defendant will suffer the normal adverse consequences associated with this felony conviction, including being stripped of his legal residency status. However, given the nature and circumstances of his crimes, the consequences are justified." The report is silent as to whether the adverse immigration consequences were mentioned during the probation officer's interview with Ojeda.
The probation report stated that Ojeda "is hoping the Court will extend him leniency and provide him with the opportunity on probation to prove [to] the Court he is a good person." It also stated he concluded the interview "by stating he wishes to be released from custody in order to be with his family."
The probation report concluded the aggravating circumstances outweighed the mitigating circumstances. The report recommended that probation be denied and that Ojeda be imprisoned for the upper prison term of four years on count 1 and an additional one year on count 2.
Sentencing
On January 3, 2001, the sentencing hearing was held. Ojeda was present, was represented by Meyer, and was assisted by a certified interpreter. The trial court considered the probation report, defense counsel's statement in mitigation, the letters of support for Ojeda, the deputy DA's sentencing brief, and the arguments of both counsel.
The trial court agreed with the probation report's recommendation and sentenced Ojeda to the upper term of four years in prison on count 1 and a consecutive one year in prison on count 2, for a total aggregate term of five years in prison. The court also stated that Ojeda "will be on parole for three years after release from prison. Any parole violation time either because he has absconded or was in custody will not be counted toward the parole period. [¶] It's further ordered the Immigration and Naturalization Services be advised of the defendant's conviction status." Two restitution fines were imposed; one was stayed and required to be paid only if Ojeda's parole was revoked after his release from custody.
When Ojeda was released from prison, removal proceedings were instituted against him. On July 2, 2003, an immigration judge ordered Ojeda removed from the United States to Mexico. A supplemental brief filed by Ojeda in the trial court states he was deported again in 2009, but we have located no evidence in the appellate record supporting this factual assertion.
Motion to Vacate
In January 2022, Ojeda's daughter retained Attorney Richard Cenci after learning Cenci's office represented noncitizens attempting to obtain relief from convictions that exposed them to adverse immigration consequences. In April 2022, Cenci filed a motion to vacate Ojeda's plea pursuant to section 1473.7, subdivision (a)(1). The motion was supported by declarations from Cenci and Ojeda. On a procedural point, Ojeda's declaration asked, "the court to allow me to appear over the phone or by Zoom, or in the alternative, to allow Mr. Cenci to appear on my behalf."
In June 2022, a deputy DA filed an opposition to the motion, contending the motion was untimely and Ojeda was aware of the immigration consequences before entering his plea. The opposition argued the motion was untimely because Ojeda was ordered removed in 2003 and, as a result of his conviction and sentence over 20 years ago, Ojeda "had a reasonable time [] after his deportation hearing to move to vacate his plea through the appropriate channels."
Two days after the opposition was filed, Ojeda's attorney filed supplemental points and authorities in support of the section 1473.7 motion. Relying heavily on People v. Alatorre (2021) 70 Cal.App.5th 747, Ojeda argued that his motion was timely because there was no unreasonable delay in bringing the motion under section 1473.7, which became effective on January 1, 2017, and was amended effective January 1, 2019.
On July 28, 2022, the trial court held a hearing on Ojeda's motion to vacate his plea. Ojeda was not able to attend the hearing because he was in Mexico and not allowed back in the country. The deputy DA argued that Ojeda was informed of the immigration consequences when he was advised at the change of plea hearing that deportation, exclusion from admission to the United States, and denial of naturalization may result from the conviction. The deputy DA also stated: "The other problem I have with this declaration is that, frankly, I think it's inadmissible hearsay. I can't cross-examine a declaration." After hearing argument from the attorneys, the court found Ojeda had not met his burden of proving a prejudicial error occurred. As a result, the court denied the motion.
The trial court correctly overruled this hearsay objection. The California Supreme Court has referred to the use of declarations in support of a section 1473.7 motion. For instance, the court stated that objective evidence supporting a section 1473.7 motion "includes facts provided by declarations." (Espinoza, supra, 14 Cal.5th at p. 321.) It also stated: "In addition to submitting declarations, both parties are entitled to request an evidentiary hearing." (Id. at p. 325.) In Vivar, supra, 11 Cal.5th at page 528, the court stated that deference to a trial court's findings is not appropriate whether "the facts derive entirely from written declarations and other documents,"-that is, when the appellate court is "reviewing a cold record." (Id. at p. 528.) These statements establish that declarations are an appropriate method of presenting evidence in support of a section 1473.7 motion and imply that a declaration itself is not inadmissible hearsay. We note that this approach to presenting evidence relating to a postconviction motion under section 1473.7 usually is the way evidence is presented to support or oppose motions in civil proceedings. (See Code Civ. Proc., § 2009 [affidavits may be used to support a motion]; Cal. Rules of Court, rule 3.1306(a) ["Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown"]; Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1436 ["Ordinarily, discovery motions are resolved by declaration"].)
In August 2022, Ojeda appealed. In October 2022, this court issued an order appointing counsel to represent Ojeda on appeal. The appellate briefing was completed in May 2023.
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES
In 2016, "lawmakers considered the problem faced by [defendants] who were unaware of the immigration consequences posed by a plea entered many years earlier" and adopted section 1473.7 to make relief available "to certain immigrants who accepted pleas without understanding the immigration-related consequences of such decisions." (Vivar, supra, 11 Cal.5th at pp. 523, 528.) To obtain relief under section 1473.7, subdivision (a)(1), a defendant must establish five things, two of which involve the substantive merits of the motion.
First, the defendant must show he "is no longer in criminal custody." (§ 1473.7, subd. (a).) Here, it is undisputed that Ojeda was released from prison in 2003 and there is no evidence he was still on parole or probation when he filed the motion in 2022.
Second, the defendant must show "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).) It is undisputed that Ojeda was deported to Mexico in 2003 because of his convictions under section 266c.
Third, the motion must satisfy the timeliness provisions contained in subdivision (b) of section 1473.7. Here, the trial court addressed the motion's merits without discussing timeliness. Similarly, the respondent's brief does not explicitly address timeliness. In view of our decision on the merits, there is no need to address whether the motion should have been deemed untimely.
Fourth, the defendant must show he made an error when he entered the plea. (§ 1473.7, subd. (a)(1).) More specifically, that error must be shown to have damaged the defendant's "ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence." (Ibid.) The key to this element is "the mindset of the defendant and what he or she understood-or didn't understand-at the time the plea was taken." (People v. Mejia (2019) 36 Cal.App.5th 859, 866.) "[T]he inquiry into a defendant's state of mind may often involve the weighing of credibility and circumstantial evidence." (Espinoza, supra, 14 Cal.5th at p. 325.)
Fifth, the defendant must demonstrate the error was prejudicial. (§ 1473.7, subd. (a)(1).) The test for prejudice is whether there was "a 'reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.'" (Espinoza, supra, 14 Cal.5th at p. 316.)
In this appeal, the parties dispute whether Ojeda established the last two elements which relate to the motion's substantive merits. The standard of proof is the preponderance of the evidence. (§ 1473.7, subd. (e)(1).)
Appellate courts conduct an independent review when determining whether a defendant has demonstrated a prejudicial error. (Vivar, supra, 11 Cal.5th at p. 526.) Under this standard of review, an appellate court exercises its independent judgment to determine whether the facts satisfy the applicable rule of law. (Id. at p. 527.) Although an appellate court must give deference to the superior court's factual findings based on the credibility of witnesses heard and observed by the superior court, there is no basis for deference where, as here, the trial court has not taken live testimony at an evidentiary hearing. (Ibid.) As a result," 'it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.'" (Espinoza, supra, 14 Cal.5th at p. 320.)
II. OJEDA'S MISUNDERSTANDING
Ojeda's declaration in support of his motion stated that (1) he never had any conversation with his attorney about the negative immigration consequences of his plea; (2) when he entered the plea, he "did not have any knowledge either specific or general of any potential adverse immigration consequences of [his] plea of guilty to a violation of [section 266c]"; (3) his attorney did not discuss how his plea to the felony was a deportable child abuse offense for immigration purposes, was an aggravated felony, and was a crime involving moral turpitude, resulting in permanent removal from the United States; and (4) the only thing he was told by his attorney "before going to court was that I was getting a chance, to sign, and to not say anything. I thought I was getting to go home." As to his state of mind, Ojeda's declaration asserted he "did not meaningfully understand, could not defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] conviction because [his] attorney never investigated nor advised [him] about the specific and serious immigration consequences of my plea."
A.R. was not a minor at the time of the first offense. Therefore, Ojeda was not convicted of "sexual abuse of a minor" for purposes of the definition of "aggravated felony" contained in section 1101(a)(43) of the title 8 of the United States Code. The parties agree the convictions under section 266c were crimes involving moral turpitude and a sentence of one year or longer rendered Ojeda deportable. (8 U.S.C. § 1227(a)(2)(A)(i).)
Other evidence relevant to Ojeda's understanding of the immigration consequences of his plea is contained in the transcripts of the plea and sentencing hearings. At the plea hearing, the trial court gave Ojeda an advisement that compiled with section 1016.5, asked if Ojeda understood, and received an answer of "Yes." Next, the court asked Ojeda if he understood that if he was sentenced to 12 months in jail or prison, "it's a mandatory hearing regarding deportation in this matter." Ojeda answered "Yes." At the sentencing hearing, the court ordered that the Immigration and Naturalization Services be advised of Ojeda's conviction status. The transcript of that hearing does not show any reaction by Ojeda to this order.
The transcript of the plea hearing directly contradicts the statement in Ojeda's declaration that, when he entered the plea, he "did not have any knowledge either specific or general of any potential adverse immigration consequences of [his] plea." Ojeda was advised of potential immigration consequences in accordance with section 1016.5 and, more specifically, was advised that a sentence of 12 months would result in a mandatory immigration hearing. This contradiction undermines the credibility of the declaration and Ojeda's assertion that he and his attorney had no conversations about immigration consequences.
We are aware of decisions concluding the generic advisement in section 1016.5, which uses the words "may have," is insufficient to establish the defendant understood the mandatory immigration consequences of the conviction. (E.g. Espinoza, supra, 14 Cal.5th at p. 320; People v. Lopez (2022) 83 Cal.App.5th 698, 712 ["advisement that appellant may face certain adverse immigration consequences was insufficient to inform appellant that the conviction would subject him to mandatory deportation and permanent exclusion from the United States"]; People v. Soto (2022) 79 Cal.App.5th 602, 609; People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065.)
Because Ojeda's court-appointed attorney is dead, he is unavailable to support or contradict Ojeda's assertion that they never discussed immigration consequences. We recognize that a defendant "seeking relief under section 1473.7 is not required to provide the declaration of plea counsel" or "submit contemporaneous documentation from the time of the plea." (Espinoza, supra, 14 Cal.5th at p. 325.) Instead, courts must consider the totality of the circumstances, which involves a case-by-case evaluation of the record. (Ibid.)
In Espinoza, the totality of the circumstances supporting the defendant's assertion of his lack of understanding included his conduct long after the plea was entered. In concluding the record established the defendant lacked a meaningful understanding of the immigration consequences of his plea, the Supreme Court stated:
"[H]e took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status. (See People v. Alatorre[, supra, ] 70 Cal.App.5th 747, 770 ['It goes without saying that someone who understood his criminal conviction made him automatically deportable would not voluntarily contact immigration authorities and advise them of his presence in the country.'].)" (Espinoza, supra, 14 Cal.5th at p. 320.)
In contrast to Espinoza, Ojeda has presented no evidence of conduct after the plea supporting the inference that he did not understand the adverse immigration consequences of his conviction and sentence.
After considering the totality of the circumstances, including the state of the law at the time the plea was taken and Ojeda's lack of credibility on certain matters, we find that Ojeda has not carried his burden of proving it was more likely than not that he lacked a meaningful understanding of the adverse immigration consequences of his plea. Based on this finding, we do not address the element of prejudice.
DISPOSITION
The order denying the section 1473.7 motion is affirmed.
WE CONCUR: HILL, P. J., SMITH, J.