Opinion
E076424
10-18-2021
THE PEOPLE, Plaintiff and Appellant, v. JESUS OLIVIA ORTEGA, Defendant and Respondent.
Jason Anderson, District Attorney, and John A. Slezak, Deputy District Attorney, for Plaintiff and Appellant. Hill & Piibe, Alary E. Piibe for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FWV09455, Corey G. Lee, Judge.
Jason Anderson, District Attorney, and John A. Slezak, Deputy District Attorney, for Plaintiff and Appellant.
Hill & Piibe, Alary E. Piibe for Defendant and Respondent.
OPINION
MILLER ACTING P.J.
The People appeal from the trial court's order granting defendant and appellant Jesus Olivia Ortega's Penal Code section 1473.7 motion to vacate his guilty plea and conviction. The People argue the trial court erred by granting defendant's motion because he had not met the requirements entitling him to relief. Specifically, the People claim defendant failed to show any prejudicial error resulting in a legal invalidity of his 1996 conviction for possession of a controlled substance for sale (Health & Saf. Code, § 11378), as required under Penal Code section 1473.7. The People maintain that the trial court erred (1) factually and legally in concluding a fact-specific oral warning was necessary but not given in this case, because the plea agreement was missing the interpreter's signature; (2) finding the missing interpreter's signature created a reasonable possibility the immigration consequences were not translated; and (3) relying on defendant's declaration in support of his motion to vacate and disregarding the probation officer's report and the court's minute order of the sentencing hearing.
We conclude that defendant established he did not meaningfully understand or knowingly accept the immigration consequences of his guilty plea and would not have pleaded guilty if he did. We also find that the trial court did not err in relying on defendant's declaration and there is no evidence to suggest the court disregarded any documents presented by the parties. We thus conclude the trial court did not err in granting defendant's motion to vacate and affirm the order.
FACTUAL AND PROCEDURAL HISTORY
The general background is taken from defendant's declaration and other exhibits in support of his motion to vacate his guilty plea. The factual background of the underlying offense is taken from the police report.
A. GENERAL BACKGROUND
Defendant is a citizen of Mexico who was born in August 1975. He entered the United States illegally in June 1990 when he was approximately 15 years old and has resided in the United States for about 31 years. Defendant is not married and lives with his three children who are all citizens of the United States. Defendant was gainfully employed from 1994 through 2009 for a construction company and has a third grade education.
In 1992, defendant's father filed a family petition for the family to be lawful permanent residents; defendant's application was a derivative beneficiary of that petition. In May 1995, the National Visa Center sent defendant's mother a notice explaining that her and her children's visas (including defendant's) were not yet current, but would be processed when visas became available. Defendant's parents are now lawful permanent residents and his five siblings are all citizens of the United States. In 1996, defendant's grandparents were the only immediate family members who still resided in Mexico.
B. FACTUAL BACKGROUND OF UNDERLYING OFFENSE
On February 18, 1996, following information from a confidential informant that there was a large quantity of methamphetamine in the residence, officers went to the residence. While outside the residence and looking though a bedroom window, an officer saw defendant exit a bedroom and walk into a hallway.
Officers knocked on the residence and via a Spanish-speaking officer obtained consent to search the residence from the home's occupant who rented the home. As the officer obtained consent to search the home, defendant, who was 20 years old at the time, and three male adults entered the living room. The officer then spoke to defendant and the male adults who showed the officer which room they slept in. The officer obtained consent from the male adults to search the room.
A short while later, a police canine found one pound of methamphetamine packaged in green plastic wrap under the master bedroom bathroom sink. One of the female occupants informed the officer that she slept in the master bedroom with the kids and her mother and that sometimes the male adults in the home used the bathroom when the other bathroom was occupied. The female occupants denied knowledge of the drugs in the home. Upon questioning by the officer, defendant stated that he was in the master bedroom sleeping prior to the officers knocking on the door and that he had returned to the master bedroom to get some shoes that were under the master bedroom bathroom sink.
One of the officers suspected defendant had probably placed the packaged methamphetamine in the bathroom as he had seen defendant exit the master bedroom when he entered the residence. Defendant denied placing the packaged methamphetamine under the bathroom sink. After the officer informed defendant that if he did not determine who placed the drugs under the sink, he would have to arrest whoever slept in the master bedroom, defendant responded that he did not want any of his family to go to jail and that he had placed the drugs under the sink. Defendant explained that he was holding the drugs for someone else and that he suspected the package contained illegal drugs but was not sure. Defendant was thereafter placed under arrest.
C. PROCEDURAL BACKGROUND
On February 21, 1996, a felony complaint was filed, charging defendant with one count of possession for sale of a controlled substance (Health & Saf. Code, § 11378).
Defendant was arraigned on February 21, 1996, with bail set at $50,000. At that time, defendant was advised that "if he is not a citizen [of the United States], a conviction of the offense with which he is charged may lead to his deportation, exclusion from admission to this country, or denial of naturalization." It is unknown whether a Spanish speaking interpreter was present at the arraignment.
On March 5, 1996, 11 days later, defendant entered into a plea in which he agreed to plead guilty to the drug offense and in return he would be placed on probation with a jail sentence between 180 to 270 days. Prior to pleading guilty, defendant initialed and signed a plea form. In pertinent part, defendant initialed paragraph 6c, which stated, "If I am not a citizen of the United States, I could be deported, or excluded from admission to the United States, or denied naturalization." Defendant was represented by counsel and also initialed paragraph 17b, which stated, "I cannot read/understand English, but I have had the assistance of an interpreter to read this form to me and I now understand all of the contents of this form." Defendant's court-appointed attorney signed the plea form, which confirmed that he had "personally read and explained the contents of the" plea form to defendant. However, the interpreter did not sign or date the plea form to confirm that its contents were actually read to defendant in the Spanish language.
After executing the plea form, defendant appeared before the trial court for taking of the plea. Defendant at that time was assisted by a Spanish interpreter. In response to the court's query of whether the interpreter had gone over the plea form with him and translated the form from English to Spanish, defendant responded, "Yes." Defendant also replied "Yes" to the court's questions whether he had initialed the boxes on the plea form and signed the plea form. The court then asserted "That indicates to me, Sir, that you read and considered each and every constitutional right, the other rights and the consequences of your plea which are [ ] forth on this document." The court did not orally advise defendant of the immigration consequences of pleading guilty. In response to the court's question of whether he had any questions about his constitutional rights or the consequences of his plea, defendant stated, "No, that is fine." After the court explained the plea agreement to him, defendant pleaded guilty to possession of a controlled substance for sale and the matter was referred to the probation department for a report. The court found defendant understood the charges, the possible penalties, the constitutional rights, and the consequences of pleading guilty and that defendant entered the plea freely, voluntarily, knowingly, and intelligently.
The probation department submitted a probation report on March 19, 1996. Defendant denied being involved in narcotics trafficking to the probation officer. He explained a friend had used the bathroom about an hour and half before the officers arrived and when the friend left, he told him that he had left a package in the bathroom which he would retrieve at a later time. Defendant also informed the probation officer that "he wish[ed] to be released as soon as possible so that he may return to his job . . . to help support his mother and sister, with whom he live[d]." Defendant stated that he was in the United States illegally and that he had no work permit. Subsequently, the probation officer informed defendant of "his immigration status, the fact that there is an INS (Department of Immigration and Naturalization Services) hold upon him and that terms and conditions of probation would reflect his illegal alien status."
On March 25, 1996, defendant was placed on probation for a period of three years and ordered to serve 270 days in county jail on various terms and conditions, including the immigration term.
On February 14, 2017, defendant was served with a notice to appear in removal proceedings by the United States Department of Homeland Security as a person "present in the United States without being admitted or paroled" pursuant to section "212[, subdivision ](a)(6)(A)(i) of the Immigration and Nationality Act."
On October 22, 2020, defendant filed a motion to vacate his guilty plea and conviction under Penal Code sections 1016.5 and 1473.7. In regard to section 1473.7, defendant asserted that he did not meaningfully understand the mandatory immigration consequences of his plea and that there is a reasonable probability he would not have accepted the plea had he known the immigration consequences. Instead, he would have requested his counsel to seek an alternative plea or go to trial. In support, defendant attached his declaration, copies of his children's birth certificates, copies of his parents' green cards, copies of his siblings' United States citizen certificates, an employment verification document, the 1992 approved family petition, court documents related to this case, immigration court deportation documents, and his criminal record.
All future statutory references are to the Penal Code.
On November 24, 2020, the People filed opposition to defendant's motion to vacate. The People argued defendant was adequately advised of the immigration consequences and that he cannot show prejudicial error because his assertions in his declaration were not supported by an explanation or corroborating evidence. In support, the People attached the police report from this case, court documents related to this case, and the probation officer's report.
A hearing on the motion was held on December 4, 2020. The trial court considered the parties' motions, arguments by counsel, and admitted the documents submitted by the parties, including defendant's declaration, over the People's objections, as credible evidence of his own state of mind at the time his plea was taken. Defendant was present at the hearing and available for questioning by the People, but the People did not question him. Rather, the parties submitted on the filed documents and arguments by counsel. Defendant's counsel explained that defendant was not facing removal because of his conviction, but because of his unlawful presence in the United States and that his conviction was preventing him from seeking relief from removal by either cancellation of removal or adjustment of his status to that of a lawful permanent resident. Following argument, the trial court took the matter under submission.
On December 11, 2020, the trial court granted defendant's motion pursuant to section 1473.7 because defendant had established by a preponderance of the evidence his conviction was legally invalid due to prejudicial error. The court explained: "So I have carefully gone over the exhibits and considered the arguments made by counsel. And in this case, based on the preponderance of the evidence standard, the Court agrees that the moving party has established by a preponderance of the evidence for 1473.7(a)(1) . . . [¶] [defendant] was convicted of Health & Safety Code 11378 on March 5th, 1996. It appears he was just 20 years old at the time. . . . He had no prior record indicating that the plea process where he's advised of his rights and consequences was very new to him. [Defendant] states in his Declaration that he had been in the United States at the time just six years and he did not speak English well. He states that had he understood he would lose the opportunity to become a legalized⸺to become legalized in the United States as his family, both parents, and siblings are now LPR's and U.S. citizens, he would have never plead guilty, and thus, he did not meaningfully understand what he signed up for.
The trial court did not rule on the motion under section 1016.5, specifically stating, "There was a motion filed [under] [ ] [section] 1016.5 but I'm not making a ruling on that."
"To corroborate this said Declaration, [defendant] provided documentation showing that he and his family were in the process of being petitioned by his father who was an LPR since 1990. The father had petitioned his wife, [defendant]'s mother, in 1992 to become an LPR. And based on a May 31st, 1995, National Visa Center document, the petition was still pending and defendant and his six siblings were also listed as applicants. The mother eventually received her LPR status in 1999. Petitions for his siblings presumably were also approved later as some of them became U.S. citizens as shown by the citizenship documents in the exhibit. . . .
"So at the time the defendant plead on March 5th, 1996, the defendant was already petitioned and it appears that the National Visa Center was in the process of reviewing the petition, and this tends to show less of a likelihood that the defendant knew the immigration consequences of pleading to the Health and Safety Code 11378 on March 5th, 1996. [¶] Also corroborating [defendant]'s claim, a copy of the plea agreement, as provided by both parties, clearly lacks a signature by a Certified Spanish Language Interpreter attesting that she or he interpreted to the defendant everything on the plea form which contains an advisal regarding immigration consequences of his plea.
"The transcript of the change of plea . . . also corroborates [defendant]'s claim. The transcript indicates that a Spanish Language Interpreter interpreted what the Court was saying to [defendant] and vice versa. In the transcript, the Court took the plea by generally asking whether the plea document was translated from English into Spanish, and whether he initialed each box on the form that goes over his constitutional rights . . . and consequences of his plea. [Defendant] stated that he did and that he had no questions. Although an oral warning is not required and a signing of a waiver is sufficient, the fact that a specific oral warning was not given in this case is relevant considering that the plea agreement itself is missing the interpreter's signature creating a reasonable possibility that the immigration consequence was not translated, despite the interpreter stating orally that everything in general was translated and the defendant agreeing.
"This is important especially because the law is clear that all three warnings, specifically deportation, exclusion from admission to the United States, or denial of naturalization, that must be given with substantial compliance. [¶] . . . [¶] . . . [¶] The People argue that the probation report in Exhibit 7 of the People's papers states that [defendant] was informed of his immigration status, that there is an immigration hold based on his undocumented status, but this was not a consequence of his conviction. Regardless, this information is provided after the change of plea.
"So based on all this, considering everything together in totality of the circumstances, the Court finds that there is a reasonable probability and that more likely than not that the defendant would not have plead guilty if he meaningfully understood the immigration consequences. [¶] In addition, [defendant] has established that the conviction is currently causing or has the potential to cause denial of application for immigration benefit, lawful status, or naturalization. . . ."
On December 31, 2020, the People filed a motion for reconsideration of the court's order granting defendant's motion to vacate. Defendant subsequently filed opposition to the People's motion.
Following a hearing, on January 15, 2021, the trial court denied the People's motion to reconsider its order. The court noted that it did not see any new facts, circumstances, or law to grant the motion and stood by its decision to grant defendant's section 1473.7 motion. The court explained that it was not granting defendant's motion "only based on the defendant's declaration" that the People assert is "self-serving of independent objective evidence." The court reiterated that it based its decision on defendant's declaration, which it found credible and supported by other contemporaneous evidence, such as the lack of signature by the interpreter, lack of specific advisal by the court of the immigration consequences, evidence showing defendant was in the process of being a lawful permanent resident, defendant's age of 20 years old and having been in the country for just about six years when he pleaded guilty, and defendant's lack of prior convictions.
The court concluded "[a]ll of these factors, including additional factors . . . mentioned in the December 11th hearing, were considered by this Court in determining that there is reasonable probability that the defendant [would] not [have] pleaded guilty had he known that the guilty . . . plea would result in mandatory or adverse immigration consequences. [¶] Therefore, this Court found that prejudicial error existed by preponderance of the evidence such that it damaged the defendant's ability to meaningfully understand and knowingly accept the actual or potential adverse immigration consequences of the plea of guilt or no contest." The People subsequently appealed.
DISCUSSION
The People argue the trial court erred in granting defendant's section 1473.7 motion to vacate his guilty plea and conviction because defendant was correctly informed of his immigration consequences under sections 1016.5 and 1473.7. The People also assert defendant failed to prove any prejudicial error because he did not show with contemporaneous objective evidence that he would not have pleaded guilty, and would instead have defended against the charges, if he had been adequately advised of the immigration consequences. The People fault the trial court with relying on defendant's declaration and disregarding the sentencing order and probation report.
Because the trial court did not rule on defendant's motion under section 1016.5, we will not address any arguments related to this section.
A. STANDARD OF REVIEW
Our Supreme Court recently clarified the standard of review for motions brought pursuant to section 1473.7, subdivision (a)(1). In People v. Vivar (2021) 11 Cal.5th 510 (Vivar), the Supreme Court endorsed the independent standard of review to determinations under section 1473.7, subdivision (a)(1). (Vivar, at pp. 523-525.) "A standard of independent review-the same standard governing our review of these claims on habeas corpus-is most consistent with section 1473.7's purpose: to offer relief to those persons who suffered 'prejudicial error' but are 'no longer imprisoned or restrained' and for that reason alone are unable to pursue relief on habeas corpus. [Citation.]" (Id. at p. 525.)" '[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 should be mindful that' "[i]ndependent review is not the equivalent of de novo review . . . ."' [Citation.] An appellate court may not simply second-guess factual findings that are based on the trial court's own observations. [Citations.]" (Id. at p. 527, italics omitted.) In other words, we should give particular deference to factual findings based on the trial court's personal observations of witnesses. (Id. at pp. 527-528.) Where "the facts derive entirely from written declarations and other documents, however, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, '[t]he trial court and this court are in the same position in interpreting written declarations' when reviewing a cold record in a section 1473.7 proceeding. [Citation.] Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (Id. at p. 528.)
Former section 1473.7, which became effective on January 1, 2017, allowed "[a] person no longer imprisoned or restrained" to file a motion to vacate a conviction or sentence if "[t]he conviction or sentence 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 plea of guilty or nolo contendere." (Stats. 2016, ch. 739, § 1.) "Courts routinely interpreted the new statute to mean that in order to vacate a conviction, a person had to prove an ineffective assistance of counsel (IAC) claim under well-established standards. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland)." (People v. Mejia (2019) 36 Cal.App.5th 859, 861 (Mejia); People v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho).)
The Legislature, however, amended the statute, effective January 1, 2019, "to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute's implementation." (Stats. 2018, ch. 825, § 1, subd. (b); Camacho, supra, 32 Cal.App.5th at p. 1007; Mejia, supra, 36 Cal.App.5th at p. 869.) Of significance here, a sentence was added to subdivision (a)(1) stating, "[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (Stats. 2018, ch. 525, § 2; Mejia, at pp. 862, 869; Camacho, at p. 1006; see People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.) A new subdivision (e)(4) directed, "When ruling on a motion under paragraph (1) of subdivision (a), 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 plea of guilty or nolo contendere." (Stats. 2018, ch. 825, § 2, subd. (e)(4).)
Under the amended section 1473.7, a defendant is no longer required to prove an ineffective assistance of counsel claim in order to obtain relief. (Mejia, supra, 36 Cal.App.5th at p. 871; Camacho, supra, 32 Cal.App.5th at p. 1008.) Thus, a defendant no longer must prove that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. (Camacho, at p. 1008.) This means too that courts are not limited to the standard for prejudice used in ineffective assistance of counsel claims-"a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland v. Washington (1984) 466 U.S. 668, 694)-when ruling on motions brought under section 1473.7. (Camacho, at p. 1009.)
"Rather, a superior court is required to make a finding of legal invalidity if the defendant simply proves by a preponderance of the evidence a '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 plea of guilty or nolo contendere.' (§ 1473.7, subd. (a)(1).)" (Mejia, supra, 36 Cal.App.5th at p. 871, italics omitted.) "[T]he 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.]" (Mejia, at p. 871, italics omitted, quoting Camacho, supra, 32 Cal.App.5th at p. 1009.)
As our Supreme Court recently explained, 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. When courts assess whether a petitioner has shown that reasonable probability, they 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." (Vivar, supra, 11 Cal.5th at pp. 529-530.) "[W]hen a defendant seeks to withdraw a plea based on inadequate advisement of immigration consequences," he or she must corroborate "such assertions with' "objective evidence." '" (Id. at p. 530.)
"The probability of obtaining a more favorable result at trial is one factor to consider in evaluating prejudice, but it is not necessarily the determinative factor." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78 (Ogunmowo); People v. Martinez (2013) 57 Cal.4th 555, 559 (Martinez).) As the United States Supreme Court explained in Lee v. United States (2017) __U.S.__[137 S.Ct. 1958, 1967], "it could be reasonably probable that a defendant 'would have rejected any plea leading to deportation-even if it shaved off prison time-in favor of throwing a "Hail Mary" at trial,' where 'avoiding deportation was the determinative factor for [the defendant].'" (Ogunmowo, at p. 78, italics omitted; accord, Mejia, supra, 36 Cal.App.5th at p. 871; Camacho, supra, 32 Cal.App.5th at pp. 1010-1011.)" '[C]ommon sense . . . recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. [Citation.] When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive.' (Lee v. United States, supra, [__] U.S.__ .)" (Mejia, at p. 872; Camacho, at pp. 1010-1011.)
As Camacho discussed, our Supreme Court has found that"' "[c]riminal convictions may have 'dire consequences' under federal immigration law [citation] and that such consequences are 'material matters' [citation] for noncitizen defendants faced with pleading decisions." [Citation.] "[A] deported alien who cannot return 'loses his job, his friends, his home, and maybe even his children, who must choose between their [parent] and their native country . . . .'" [Citation.] Indeed, a defendant "may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges" [citation], such as when the defendant has family residing legally in the United States.'" (Camacho, supra, 32 Cal.App.5th at p. 1010, quoting Martinez, supra, 57 Cal.4th at p. 563.)
C. ANALYSIS
In Mejia, supra, 36 Cal.App.5th 859, the defendant was charged in 1993 with three felony counts related to possession for sale of cocaine or cocaine base. (Id. at p. 862.) He pleaded guilty and initialed an immigration advisement on the plea form stating he understood that if he was not a United States citizen the conviction" 'may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.'" (Id. at p. 863, italics omitted.)
In 2017, the defendant brought a motion pursuant to section 1473.7 to have his convictions vacated. (Mejia, supra, 36 Cal.App.5th at p. 863.) He submitted a declaration in which he stated his former attorney (by that time deceased) had told him he had no choice but to take the plea deal, never asked about his immigration status or explained that pleading guilty would lead to deportation, and told him to sign all the boxes on the plea form. (Ibid.) The defendant declared that he would have fought the charges or tried to negotiate an immigration-neutral plea if he had known that pleading guilty to the charges would lead to deportation. (Id. at pp. 863-864.) An evidentiary hearing was conducted at which the defendant testified that his prior attorney did not discuss the possible immigration consequences of his plea and that he would not have accepted the negotiated plea and pleaded guilty if he had known it would harm him in the future. (Id. at pp. 864-865.) The trial court denied the motion, treating the defendant's claim as one based on ineffective assistance of counsel and concluding that the defendant" 'failed to make a sufficient showing that he would have declined the plea and risked going to trial had he been more fully apprised of its immigration consequences.'" (Id. at p. 865, italics omitted.)
The Court of Appeal reversed, agreeing with the defendant that the "key" to section 1473.7 is not what the defense attorney said or did not say about the immigration consequences of the plea, but is" 'the mindset of the defendant and what he or she understood-or didn't understand-at the time the plea was taken.'" (Mejia, supra, 36 Cal.App.5th at p. 866.) The court concluded that the defendant's undisputed testimony at the evidentiary hearing established he did not meaningfully understand or knowingly accept the immigration consequences of his guilty plea and would not have pleaded guilty if he did. (Id. at p. 872.) The court stated, "[the defendant] plainly established his own 'error' within the meaning of section 1473.7, subdivision (a)." (Ibid.)
As to prejudice, the Mejia court concluded there was contemporaneous evidence to substantiate the defendant's claim he would not have accepted the plea agreement if he had known the immigration consequences of pleading guilty. (Mejia, supra, 36 Cal.App.5th at p. 872.) This contemporaneous evidence included the defendant's own life story (he had been living in the United States for eight years, since he was 14 years old; at the time of the guilty plea, he had a wife and an infant son, as well as his mother and siblings, here; he had no remaining family ties in Mexico), and the preliminary hearing transcript, which left uncertainties as to the strength of the prosecution's evidence. The court also noted that, given the circumstances that the defendant had no criminal history and his guilty plea was a plea to the court, it was likely that even after trial, the court would have sentenced him to probation with local time in custody, or a lower prison term. (Id. at pp. 872-873.)
More recently in People v. Jung (2020) 59 Cal.App.5th 842 (Jung), overruled in part on other grounds in Vivar, supra, 11 Cal.5th at p. 526, fn. 4, the court relied on Mejia to conclude the defendant met her burden of proving prejudicial error under section 1473.7, based mostly on her declaration demonstrating her misunderstanding and providing substantiating contemporaneous evidence of her ties to this country. (Jung, at pp. 846, 858.) The court concluded that the defendant "did not meaningfully understand the immigration consequences of her pleas" (id. at p. 858), even though counsel testified that he thoroughly advised all his clients about plea consequences and would have advised the defendant that her guilty plea would lead to her deportation (id. at p. 849). The court stressed that "[t]he question" presented by section 1473.7 "was not what [counsel] told [the defendant], but what [the defendant's] understanding was about the immigration consequences of her pleas." (Jung, at p. 858, italics added.) The defendant satisfied section 1473.7 by showing her"' "own error in . . . not knowing that [her] plea would subject [her] to mandatory deportation and permanent exclusion from the United States." '" (Jung, at pp. 858-859, italics omitted.) The trial court erred by focusing "on whether a third party caused [the defendant] to suffer prejudice rather than considering [the defendant's] mindset when pleading guilty." (Id. at p. 859.)
Turning to this case, we find the record demonstrates defendant did not meaningfully understand or knowingly accept the immigration consequences of his guilty plea. In support of his section 1473.7 motion, he submitted a declaration stating that he was arrested in February 1996 and had an attorney to represent him. He said he pleaded guilty based on his attorney's advice. Defendant also stated that he was never asked about his immigration status or advised about the consequences the plea deal would have to his immigration status. He asserted that he "was misled into believing that the relevant considerations were limited to the custody aspects of the proposed plea." He asserted that had he known his plea would prevent him from applying for legalization "and lead to deportation with no ability to return to the United States," he "would not have accepted" his attorney's recommendation to plead guilty to a violation of Health and Safety Code section 11378. Instead, he would have asked his attorney "to seek an alternative plea that would not have such serious immigration consequences." We note that, in ruling on the motion, the trial court found defendant's declaration to be credible. An "appellate court does not reassess witness credibility but defers to the trial court's credibility determinations." (Jung, supra, 59 Cal.App.5th at p. 853.)
We disagree with the People's argument that the trial court "erred in accepting and relying on defendant's self-serving and unfounded declaration." First, this court has found no case law or language in the statute that supports the exclusion of a defendant's declaration when bringing a section 1473.7 motion. Second, the Legislature specifically provided that the hearing on the section 1473.7 motion could be conducted outside the presence of the defendant. (§ 1473.7, subd. (d).) Moreover, defendant here was available at the hearing for cross-examination. As such, the People had the opportunity to cross-examine defendant, but chose not to do so. The trial court properly considered defendant's declaration in support of his motion.
Such result is supported by Vivar and other cases. Defendants routinely submit, and courts consider, declarations in support of section 1473.7 motions. (E.g., Vivar, supra, 11 Cal.5th at pp. 527-528; Jung, supra, 59 Cal.App.5th at p. 846; Ogunmowo, supra, 23 Cal.App.5th at pp. 78-79.) The California Supreme Court found that independent review by the appellate court was proper because a majority of these motions are based on a cold record. (Vivar, at p. 528.) Although the California Supreme Court did not address the issue involved here, it recognized that the trial courts may only have a declaration in deciding a section 1473.7 motion and implied that live testimony was not necessary. (Ibid.)
Further, the admission of defendant's declaration is supported by Code of Civil Procedure section 2009, which states: "An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute." Code of Civil Procedure section 1102 makes civil rules of evidence applicable to criminal actions.
We reject the People's objection to the declaration on hearsay grounds. The declaration here did not contain hearsay, which is defined in Evidence Code section 1200 as statements made by someone other than the witness testifying, and that are offered to prove the truth of the matter stated. "The hearsay rule is not implicated where the issue is whether certain things were said or done, and not whether those things were true or false. In such event, the out-of-court statement or conduct has independent legal significance (whether or not the content is true and despite the declarant's credibility) and is admissible nonhearsay to prove the words were spoken or the act was done. [Citations.]" (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2020) ¶ 8:1042, italics omitted.)
In any event, the trial court cannot grant the section 1473.7 motion based solely on a defendant's declaration." 'Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.'" (Ogunmowo, supra, 23 Cal.App.5th at p. 78, italics omitted.) The trial court must consider any other contemporaneous evidence along with the declaration in deciding a section 1473.7 motion. (See Vivar, supra, 11 Cal.5th at p. 530; People v. Bravo (2021) __Cal.App.5th__[2021 Cal.App.LEXIS 824, *16-21].)
Here, as noted by the trial court, defendant's declaration was supported by other contemporaneous and objective evidence. In support, defendant had attached the plea form which was not signed by the interpreter, the 1992 petition for defendant to become a lawful resident, documents showing his family's lawful status in the United States, his employment status, immigration court deportation documents, the court's minute order of the plea hearing, and his criminal record. The contemporaneous evidence established that in 1996, defendant did not meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea of guilty. (See Jung, supra, 59 Cal.App.5th at pp. 857-858 [court explained the defendant's age of 21 years old and close family ties to the United States substantiated defendant's credible declaration that she did not understand the plea form she initialed and signed].)
Defendant provided contemporaneous evidence to substantiate his claim that he would not have accepted the plea agreement if he had known it would result in deportation or exclusion from the United States. In his declaration, defendant said he entered the United States in June 1990, about six years prior to pleading guilty in 1996, and that both his parents and five siblings lived in the United States. He declared, with supporting evidence, that both his parents are lawful permanent residents of the United States and that his siblings are all United States citizens. Defendant claimed that he was a derivative beneficiary of a family petition filed in 1992 and that he understood in 1996 he would become a legal resident of the United States. A copy of a travel visa petition, showing defendant's name as one of his father's children, was attached in support of the motion to vacate. Defendant declared, with a supporting letter, that in 1996 he was gainfully employed from 1994 until 2009 and that his entire immediate family was in the United States. He explained that returning to Mexico at age 20 with no job, no family, no future, and no place to live was not a realistic option for him and that he would have never pleaded guilty and done anything to avoid from being deported, even going to trial. Defendant lived in the United States with his three children, who are all United States citizens, and was attempting to become a legal resident. He did not believe that pleading guilty would prevent him from legalizing his immigration status. Remaining in the United States was extremely important to him since his entire family is here, he had lived here for more than 30 years, and he had an established life here. Additionally, it appears defendant could have fought the charge of possession of a controlled substance for sale based on the police report and defendant's repeated denials of committing the offense or having knowledge the package contained illegal drugs. Further, this offense was not the type of offense that would have subjected defendant to a lengthy prison sentence, especially since defendant had no prior criminal record, had he declined the negotiated disposition and been convicted by a jury. The above evidence supports a finding that there was a reasonable probability that defendant would not have pleaded guilty had he known the guilty plea would result in mandatory and dire immigration consequences. (Mejia, supra, 36 Cal.App.5th at p. 871.)
In their reply brief, the People argue the court "erred by admitting unfounded and inadmissible speculation and hearsay that [d]efendant was part of a petition for residency," namely an incomplete and unauthenticated letter dated May 31, 1995, from the National Visa Center to defendant's father. The People forfeited this claim for failing to object in the court below. (See People v. Dykes (2009) 46 Cal.4th 731, 756.) In addition, because the People did not raise this argument in their opening brief, it is untimely, and we need not consider it. (See People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before].)
The People argue that the trial court erred in disregarding the probation report, which had advised defendant of his immigration hold, and the court's minute order of the sentencing hearing, which noted the immigration terms of probation. There is no evidence in the record to support this contention. The trial court admitted all of the evidence submitted by the parties and repeatedly stated that it based its decision on the totality of the circumstances. Even if the court disregarded the probation report and the minute order of the sentencing hearing, reliance on these two documents does not aid the People that defendant meaningfully understood or knowingly accepted the actual or potential adverse immigration consequences of his plea of guilty. Defendant was interviewed by the probation officer and informed of his immigration hold after he had accepted his guilty plea. Likewise, the sentencing hearing occurred after he had pleaded guilty.
The People claim that the trial court erred factually and legally in concluding that a fact-specific oral warning was necessary but not given in this case, because the plea agreement was missing the interpreter's signature, and that the court erred in concluding the missing interpreter's signature created a reasonable possibility the immigration consequences were not translated. Although the court erred in deducing the deficient signature of the interpreter created a reasonable possibility the immigration consequences were not translated (in light of the overwhelming evidence to the contrary), the court's reliance on the lack of the interpreter's signature in the plea form was one of the many factors the court considered in evaluating defendant's section 1473.7 motion. As noted previously, the court cited numerous factors in concluding that defendant would not have pleaded guilty had he known the guilty plea would result in mandatory or adverse immigration consequences and that prejudicial error existed such that it damaged defendant's ability to meaningfully understand and knowingly accept the actual or potential adverse immigration consequences of the plea. These factors included defendant's own life story and ties to the United States, the strength of the prosecution's evidence against defendant, defendant's lack of a criminal history, and the likeliness that even after trial, defendant would have received probation or a lower prison term.
Defendant presented evidence he came to the United States when he was 15 years old and had lived here ever since. His entire family, including his three children, lived here, and he had no connection to Mexico; thus, he would have taken his chances going to trial "(even if only to figuratively throw a' "Hail Mary" ')" if he knew the conviction would lead to deportation. (See Mejia, supra, 36 Cal.App.5th at pp. 870-873; see also Camacho, supra, 32 Cal.App.5th at pp. 1011-1012.)
We conclude defendant satisfied the test for prejudicial error set forth in Mejia and approved by our Supreme Court in Vivar. He showed by a preponderance of the evidence that he did not "meaningfully understand" he would be deported as a result of his guilty plea, and that he would not have pleaded guilty had he known of that consequence. Exercising our independent review while deferring to the trial court's credibility determinations and factual findings, we conclude defendant did meet his burden for relief under section 1473.7. Consequently, the trial court did not err in granting defendant's motion to vacate the conviction as invalid due to prejudicial error. (§ 1473.7, subd. (e).)
DISPOSITION
The order granting the section 1473.7 motion to vacate the conviction is affirmed.
We concur: FIELDS J., RAPHAEL J.