Opinion
H043692
05-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO SANCHEZ PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 167510)
In 2015 defendant Armando Sanchez Perez moved under Penal Code section 1016.5 to vacate a 1993 guilty plea to assault with a deadly weapon, based on his assertion that he had not been advised of the immigration consequences of the plea. The trial court denied the motion, based on its finding that defendant had shown no prejudice from the absence of the required advisements. On appeal, defendant contends that the trial court abused its discretion in denying his motion, by relying on an erroneous assumption that there actually were no adverse immigration consequences to the plea. We find no abuse and therefore must affirm the order.
Defendant apparently has had multiple aliases, including the one used throughout the proceedings below, Ismael Hernandez Torres.
All further statutory references are to the Penal Code except as otherwise specified.
Background
After a preliminary hearing in September 1993, defendant was charged by information with (1) assault with a deadly weapon in violation of section 245, subdivision (a)(1), with the personal use of a dangerous weapon, a baseball bat (§ 667, 1192.7); (2) false imprisonment (§ 236/237); and (3) possession of a dangerous weapon, a billy (former § 12020, subd. (a)).
On December 13, 1993, defendant pleaded guilty to count 1 and admitted the weapon enhancement. The court thereafter suspended imposition of sentence and granted defendant formal probation for three years, conditioned on service of 180 days in jail.
Less than four months later, however, the probation officer sought revocation of defendant's probation for failure to report, failure to provide a valid address, and four alleged Municipal Code violations. On August 25, 1994, defendant admitted violating his probation. The court then reinstated probation on modified terms, including 10 months in jail.
On January 11, 1996 probation was again revoked for defendant's failure to report and a new allegation of giving false identification to a peace officer (§ 148.9). A bench warrant was issued that day and served on August 28, 1997. In addition to the 1996 allegations, the probation department reported that defendant had recently pleaded guilty to violating section 381, subdivision (a), by possessing Toluene with intent to inhale. This time the trial court imposed a two-year prison sentence.
On February 24, 2015, defendant filed the motion at issue in this appeal, to vacate his December 1993 guilty plea under section 1016.5. Accompanying the motion was a declaration in which defendant (identifying himself as Ismael Hernandez Torres) averred that when he pleaded guilty to the assault charge he was never advised of the immigration consequences of his plea. Addressing prejudice, he stated, "If I [had] been advised that my guilty plea [would] render me deportable or excludable from the U.S. I would have gone to trial or would have tried to negotiate a plea bargain with the District Attorney."
It is apparent that defendant's 1993 plea was in fact the result of a plea bargain. The People surmised that defendant meant that he would have tried to negotiate "an immigration[-]neutral" outcome.
The People initially responded that defendant's motion was untimely, but the court rejected that argument; the statute contained no time bar, the court pointed out, nor could defendant be faulted for failing to object if he never received the mandatory advisement in the first place. The People then focused on prejudice, explaining that defendant's negotiated plea had enabled him to avoid three felony convictions and a prison commitment of potentially several years. Given the clear evidence of guilt—including consistent preliminary hearing testimony by both the victim and the police officer who witnessed the assault—the People argued that "it is not reasonably probable [that] Defendant would have foregone [sic] the favorable outcome he obtained by pleading guilty to one felony charge." On the contrary, the People maintained, it was "very likely that Defendant would have been found guilty of all three felonies."
On June 9, 2016, after receiving written and oral arguments on the motion, the court concluded that defendant had failed to show that if he had been advised of the immigration consequences, he would not have entered his guilty plea. Defendant filed his notice of appeal the same day. His appeal is proper under section 1237, subdivision (b). (People v. Totari (2002) 28 Cal.4th 876, 887.)
Discussion
Section 1016.5 was added to the Penal Code in 1977 to ensure that defendants considering a guilty or no contest plea are properly advised of the immigration consequences of such a plea. Subdivision (a) contains the language required by this section: "Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." If the court fails to give this advisement and the plea "may have the consequences for the defendant of deportation . . . ," the court must, upon the defendant's motion, vacate the judgment to allow the defendant to withdraw the plea and plead not guilty. (§ 1016.5, subd. (b); see People v. Patterson (2017) 2 Cal.5th 885, 898-899 [inadequate advisement of certain deportation compels remand for good-cause hearing notwithstanding section 1016.5 advisement].)
Notwithstanding the mandatory language of the statute, it is settled that a defendant who moves to vacate a guilty plea under section 1016.5 must show "not only that the trial court failed, at the time of that plea, to advise him as provided by the statute and that there exists, at the time of the motion, more than a remote possibility that his conviction will have one or more of the specified adverse immigration consequences (§ 1016.5, subd. (b)), but also that, properly advised, he would not have pleaded [guilty or] no contest in the first place." (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).
"Whether defendant was prejudiced by the trial court's incomplete advisements is a factual question, appropriate for decision by the trial court in the first instance." (Zamudio, supra, 23 Cal.4th at p. 210.) The court must examine " ' "the entire cause, including the evidence," ' " to determine whether it is reasonably probable that the defendant would not have pleaded guilty or no contest if properly advised. (Ibid.) "To that end, the defendant must provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised. It is up to the trial court to determine whether the defendant's assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances." (People v. Martinez (2013) 57 Cal.4th 555, 565 (Martinez); see also People v. Araujo (2016) 243 Cal.App.4th 759, 763 [court may reject a defendant's self-serving statement that he or she would not have pleaded guilty had there been the advisement.]) " 'The choice . . . that [the defendant] would have faced at the time he was considering whether to plead, even had he been properly advised, would not have been between, on the one hand, pleading guilty and being deported and, on the other, going to trial and avoiding deportation.' [Citation.] The defendant thus must convince the court [that] he or she would have chosen to lose the benefits of the plea bargain despite the possibility or probability [that] deportation would nonetheless follow." (Martinez, supra, 57 Cal.4th at p. 565.) This is "a factual question, appropriate for decision by the trial court in the first instance." (Zamudio, supra, 23 Cal.4th at p. 210.)
We review the trial court's decision to grant or deny a section 1016.5 motion for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192; People v. Chien (2008) 159 Cal.App.4th 1283, 1287.) It is defendant's burden on appeal to show such abuse. " ' "[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.' " ([Citation.]) 'The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citation.]" (People v. Asghedom (2015) 243 Cal.App.4th 718, 724; see also People v. Limon (2009) 179 Cal.App.4th 1514, 1518 [abuse of discretion in denying section 1016.5 motion exists upon "exercise of a court's discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice"].)
Viewing the record in light of these principles, we cannot find an abuse of discretion here. The transcript of the June 2016 hearing on the motion does not establish that the court's decision was based on its assumption that there was in fact no adverse immigration consequence to his plea, given that his sentence was confined to six months in jail. In their written and oral arguments the parties debated whether defendant, a Mexican citizen, would have been deportable and excludable under the federal Immigration and Nationality Act. The parties and the court specifically discussed the applicability of 8 U.S.C. section 1182, subdivision (a)(9) (providing a conditional exemption for maximum six-month sentences) and 8 U.S.C. section 1182, subdivision (a)(2)(A)(ii)(II) (providing exemption for crimes for which the maximum penalty is one year and the sentence was for six months or less).
Although the court indicated interest in this question and asked the parties to address it in their arguments, it appears to have considered the question of actual consequences as only part of its colloquy with counsel regarding whether defendant would have pleaded guilty had he received the section 1016.5 advisement. Defendant's attorney pointed out that "it does not matter that a term of only six months was imposed," because (under 8 U.S.C. section 1182, subdivision (a)(2)(A)(ii)(II)) the "maximum possible sentence for the offense" must also be considered. At the hearing defense counsel also argued that the issue was a red herring: "Because really there is only one question. The question is what would he have done if he had been told that maybe there would be a consequence . . . So I personally don't think it matters whether there was actually a consequence or not. Because that is not what the court is required to notify the defendant of." (Italics added.)
Notwithstanding the energy the parties devoted to the question of the actual immigration consequences of defendant's plea, the court eventually confined that issue to whether "the certainty of the consequence would factor into the convincibility of the assertion that [defendant] would have done something different." Even assuming this factor was salient in determining prejudice from the lack of advisement, there were other circumstances before the court that we presume it considered. The court appeared to accept defense counsel's point that defendant was young at the time of the offense, and that he was "devoted to his family" because he kept returning to "the same place where the authorities know him." The court also had before it the District Attorney's argument that defendant had obtained a substantial benefit from the plea bargain: the offense to which defendant pleaded in 1993 was a felony, which was rendered a strike within the meaning of the Three Strikes law based on defendant's admission that he had personally used a deadly weapon. The District Attorney thus argued that defendant was unlikely to have rejected the benefit he was offered—dismissal of two counts and no prison time—for a trial that could have resulted in a significant prison term along with the possibility of deportation, especially since it would have featured testimony from both the victim and the police officer who witnessed the attack. These facts were not beyond the permissible scope of the trial court's consideration. (See Martinez, supra, 57 Cal.4th at p. 568 [approving consideration of "seriousness of the charges in relation to the plea bargain" among other factors in determining whether defendant would have rejected the plea bargain had he received the immigration advisement].) The court could also have inferred, as do the People, that defendant repeatedly demonstrated a "preference for quick resolution of legal troubles in exchange for his release from custody." The probation report prepared for sentencing on defendant's 1993 crime indicated that defendant was "willing to cooperate with any orders of the Court for probation."
Defendant's actual age at the time of the offense was never established in these proceedings. Like the variability in his aliases, his reported birthdate on court documents ranged from May 5, 1974 to March 3, 1975, to May 5, 1976.
In addition to multiple criminal convictions and probation violations, between 1994 and 2004 defendant repeatedly "voluntarily returned" to Mexico and twice was deported. At the time of his motion in February 2015, he was serving a 27-month sentence in the federal penitentiary for illegal reentry (8 U.S.C. § 1326.)
The trial court itself, in holding defendant to answer the 1993 charges, commented that the blow defendant struck was aimed at the victim's head, and "but for the grace of God" the result could have been more serious. --------
It was for the trial court to determine the credibility of defendant's bare assertion that he would not have pleaded guilty more than a decade earlier had he been advised of the immigration consequences. Whether we would have reached the same factual conclusion is not relevant. Because the trial court's decision was not "so irrational or arbitrary that no reasonable person could agree with it" (People v. Carmony (2004) 33 Cal.4th 367, 377), we may not substitute our judgment for that of the trial court. Accordingly, we must uphold its denial of defendant's motion.
Disposition
The order is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
GROVER, J.