Opinion
E072952
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE BARAJAS RAMIREZ, Defendant and Appellant.
Reynaldo C. Pulido for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Christine Bergman, Alan L. Amann, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FRE02876) OPINION APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed. Reynaldo C. Pulido for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Christine Bergman, Alan L. Amann, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 1998, defendant and appellant Jose Barajas Ramirez, a citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to possession of hydriodic acid with the intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(2)). In return, defendant was sentenced to a two-year suspended term and placed on formal probation for a period of 36 months on various terms and conditions of probation. Approximately two years later, defendant admitted to violating several of his probationary terms and was sentenced to the suspended term of two years with credit for time served.
In 2014, defendant was placed into removal proceedings by the federal government. Subsequently, in 2018, defendant filed a motion to vacate his conviction pursuant to Penal Code section 1473.7, arguing his trial counsel was ineffective when it incorrectly advised him of his immigration consequences, and that he did not meaningfully understand the immigration consequences of his plea. Following an evidentiary hearing, the trial court denied defendant's motion to vacate his guilty plea.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues the trial court erred in denying his section 1473.7 motion to vacate his guilty plea. We find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of the underlying offense is taken from the probation officer's report.
Defendant is a citizen of Mexico and a legal permanent resident of the United States. He had been living in the United States for over 37 years and has three children who were born in the United States.
On January 30, 1998, a California Highway Patrol officer conducted a traffic stop on a vehicle that had made an unsafe lane change. The officer made contact with the driver, later identified as defendant, who appeared very nervous. After observing defendant's behavior for some time, the officer received defendant's consent to search the vehicle. Using a drug-detecting canine, the officer located 20 gallons of hydriodic acid used for manufacturing methamphetamine. The street value of one gallon of hydriodic acid was $1,500.
On June 11, 1998, defendant pleaded guilty to possession of hydriodic acid with the intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(2)). Prior to pleading guilty, defendant signed and initialed a plea form. In relevant part, defendant initialed the paragraph stating, "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest)." He also initialed the statement that he was freely and voluntarily entering the plea of guilty "[a]s a result of plea bargaining after discussing with [his] attorney the possibility of [him] being convicted on other or more serious charges and risking the possibility of a longer sentence, and/or" because the district attorney and the court had agreed to release him on a Vargas waiver pending the sentencing hearing and because he would receive, in place of a six-year prison sentence, a two-year suspended sentence, three years' probation, and one year in county jail.
People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).
Defendant further initialed the statements declaring he had sufficient time to discuss his intent to plead guilty and the consequences of pleading guilty with his attorney and that his attorney had explained "everything" on the plea form to him. He also initialed the statement that he had "sufficient time to consider the meaning of each statement" on the plea form and that he had "personally" placed his initials "on certain boxes" on the plea form to signify that he "fully" understood and adopted as his "own each of the statements which correspond to those boxes."
The plea form was signed by defendant, which indicated he had the assistance of an interpreter to read the plea form to him and that he understood "all the contents of [the plea] form." The plea form was also signed under penalty of perjury by defendant's Spanish interpreter, indicating the interpreter had translated the contents of the entire plea form from English to Spanish "in the presence of and directly to [defendant]." Defendant's trial counsel, Mark Cantrell (Cantrell), also signed a statement in the plea form stating that Cantrell had "personally read and explained the contents" of the plea form to defendant.
On September 16, 1998, defendant was sentenced to a two-year suspended term and placed on formal probation for a period of 36 months on various terms and conditions of probation. One of defendant's probationary terms required defendant to "[n]ot remain in, or reenter, the United States without proper written authorization by the Department of Immigration and Naturalization Services" and that "[u]pon reentering the United States, report forthwith to the probation officer with written proof of said authorization" (immigration term).
On September 15, 2000, defendant admitted to violating five of his probationary terms (not including the immigration term). Thereafter, defendant's probation was terminated, and he was sentenced to the suspended term of two years with 592 days of credit for time served. On October 23, 2014, the U.S. Department of Homeland Security (DHS) notified defendant that he was subject to removal due to his drug conviction and sentence.
On May 22, 2018, after retaining counsel, defendant filed a motion to vacate his conviction pursuant to section 1473.7. Defendant argued that his trial counsel had failed to properly advise him of the immigration consequences of his plea and, as a result, prejudiced his ability to meaningfully understand, defend against, or knowingly accept the potential consequences of his plea.
On September 4, 2018, the People filed an opposition to defendant's motion, arguing the laches doctrine should apply and that defendant failed to show he suffered prejudice. In support, the People attached a declaration from Cantrell. Cantrell stated that while he did not have a "verbatim recollection" of his conversation with defendant regarding the immigration consequences of the plea, it was his custom and practice to explain such consequences to his clients. Cantrell was "certain beyond any possible doubt" that he explained those consequences to defendant. He further attested that "drug trafficking type charges almost certainly will have [such] consequence[s]," which included possible "deportation, exclusion from future admission to the United States, and denial of naturalization." Cantrell also noted defendant had initialed the paragraph in his plea form indicating he (defendant) understood his plea could result in deportation or denial of admission or naturalization.
The trial court held an evidentiary hearing on defendant's motion on January 4, 2019. At that time, the trial court heard testimony from defendant and Cantrell. Defendant testified that he had "one or two" conversations with Cantrell regarding immigration consequences and that Cantrell "'insisted'" that a guilty plea would not result in deportation or otherwise affect his immigration status. Defendant claimed that Cantrell offered him assurance that he was not going to be deported because Cantrell informed him "they were going to give [him] a year in the County." Defendant asserted that he took the plea because Cantrell "didn't want to defend [him] all the way to trial with a jury" as Cantrell wanted additional money, a plea would have allowed him to avoid the use of an "electric vest," and Cantrell convinced him that the plea would not affect his immigration status. Defendant further testified that, prior to the plea, he was afraid and worried of being deported but that "[he] was more afraid of being punished for something [he] didn't do, not really more to be deported." Defendant clarified that he was not afraid of being deported after Cantrell told him he would not be deported. Defendant claimed that he remembered signing the plea agreement form, but that no one had read the terms in the plea form to him.
Defendant believed that if he took his case to trial, he was required to wear an electric vest, which he understood could cause him to have a heart attack if he by mistake received an electric shock from it.
In lieu of his declaration attached to his motion, defendant declared that Cantrell had informed him several times that his conviction would not affect his immigration status and that he would not be subject to deportation. He recalled asking Cantrell if the conviction would affect his immigration status because he was worried about losing his "'green card.'" He claimed that he did not want to take the plea because he "'was worried about [his] legal status in this country'" and that he "'wanted to take the case to trial,'" but Cantrell "'insisted and finally convinced [him] that the case would not cause [him] to be deported.'" He also averred that his attorney's actions damaged his "'ability to meaningfully understand, defend against, and/or knowingly accept the actual or potential adverse consequences of [his] plea.'" Defendant also asserted that had his attorney properly advised him, he would have "'pushed even harder to take the case to trial'" since that is what he wanted to do, but Cantrell "'convinced [him] that this case would not affect [his] immigration status. And that is why [he] did not take this to trial.'"
Defense counsel withdrew defendant's declaration attached to his motion and the trial court struck the declaration. --------
On cross-examination, defendant acknowledged signing the plea form and claimed that he had pleaded guilty because Cantrell had asked him for more money to take the case to trial. Defendant insisted that he wanted to go to trial, despite facing a maximum sentence of six years in state prison and having the benefit of being released from custody for several months pending sentencing on a Vargas waiver because he wanted to prove his innocence. He claimed not to remember his probation condition prohibiting him from entering or remaining in the United States without authorization. Defendant professed that had he known of the immigration consequences of his plea, he would have rejected the plea and taken his case to trial.
Cantrell, who had been a criminal defense attorney since 1994, testified that he was appointed to represent defendant as a member of the conflict panel in San Bernardino County and that he had never asked for fees from a client "much less additional fees" to take the case to trial. He added that "there is no circumstance whatsoever of where [he] would deny someone the right to have a jury trial if he wanted a jury trial. Even if he told me he was guilty, it would make no difference whatsoever. That is not my call."
Cantrell stated that he was "absolutely positive beyond a reasonable doubt" that he had informed defendant of the immigration consequences of his plea. He explained: "If you don't mind me making a metaphor, I am just as sure that I advised him of the various and sundry immigration consequences as I am that I was wearing socks that day. Okay? I have never gone into court without wearing socks. I don't specifically remember putting on socks that day. And I don't specifically remember this gentleman, giving him a discussion. But I always do that because it is absolutely required that he understand that. [¶] And I always have him sign that box. Whether they are a citizen or not, I have them sign the box. And I explain what the consequences are. Even people that tell me they are a citizen, I tell them the same thing because, if they are lying to me, they need to know the consequences. So I am absolutely positive beyond a reasonable doubt that I told him."
Cantrell further testified that he always informed noncitizen client defendants that there was a risk of immigration consequences from a conviction, including denial of admission or naturalization and even deportation, and that he "perhaps even belabor[ed] the point" with defendants who were suspected of drug trafficking, as the immigration authorities at that time took the position that such defendants could be deported. Cantrell also asserted that he would not have advised defendant (or any client) that serving time in county jail instead of prison could reduce or eliminate the possibility of immigration consequences because he had no basis to believe that to be the case. Cantrell explained that "[w]hat triggers the risk is the conviction, not where you spend your custody time." He further stated that he had never advised a client that he had removed the possibility of deportation as part of a plea bargain, and that he had never told a client there were negotiations with a state trial court which included a recommendation of non-deportation for a defendant because a state court cannot control immigration consequences. Cantrell also asserted that in a charge involving possession with intent to manufacture, he had never insisted the client plead guilty or convinced a client the charge would not cause a deportation.
At the close of evidence, the trial court provided both sides an opportunity to provide additional legal arguments and continued the matter.
On March 29, 2019, the trial court denied defendant's motion, finding defendant had failed to meet his burden. The court explained that defendant's claim Cantrell had told him he would not face deportation conflicted with Cantrell's testimony that he would have never so advised a client and found Cantrell "to be the more credible witness." The court also noted that defendant had significantly benefitted from the plea agreement in that, instead of a six-year prison term, he received "probation with a two-year suspended sentence."
On May 28, 2019, defendant filed a timely notice of appeal and a request for certificate of probable cause. The request for certificate of probable cause was granted on June 12, 2019.
III
DISCUSSION
Defendant argues the trial court erred in denying his section 1473.7 motion to vacate his guilty plea when it found Cantrell's testimony "'more credible'" because the testimonies were not mutually exclusive. We find defendant's contention lacks merit.
A. Standard of Review
Appellate courts apply a de novo standard of review to rulings on section 1473.7 motions. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo); see People v. Olvera (2018) 24 Cal.App.5th 1112, 1116 (Olvera).) The appellate court in Ogunmowo explained: "De novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant's constitutional right. [Citation.] A defendant's claim that he or she was deprived of the constitutional right to effective assistance of counsel 'presents a mixed question of fact and law,' and we accordingly review such question independently. [Citations.] We accord deference to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel's deficient performance and resulting prejudice to the defendant. [Citations.]" (Ogunmowo, at p. 76.)
We apply this de novo standard of review in assessing the trial court's denial of defendant's section 1473.7 motion in which he argued his conviction was legally invalid because his defense counsel rendered ineffective assistance of counsel by failing to adequately inform him of the immigration consequences of his plea, and he was prejudiced as a result. (Ogunmowo, supra, 23 Cal.App.5th at p. 76.)
We defer to the trial court's factual findings if supported by substantial evidence. (Ogunmowo, supra, 23 Cal.App.5th at p. 76; Olvera, supra, 24 Cal.App.5th at p. 1116.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not reweigh the evidence or reevaluate witness credibility. (People v. D'Arcy (2010) 48 Cal.4th 257, 293 (D'Arcy).)
B. Section 1473.7
Section 1473.7, which became effective on January 1, 2017, provides in pertinent part: "A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence [if] . . . [¶] (1) [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." (§ 1473.7, subd. (a)(1).) The statute "allows a defendant, who is no longer in custody, to challenge his or her conviction based on a mistake of law regarding the immigration consequences of a guilty plea or ineffective assistance of counsel in properly advising the defendant of the consequences when the defendant learns of the error postcustody." (People v. Perez (2018) 19 Cal.App.5th 818, 828 (Perez).) The burden is on the defendant to show, by a preponderance of the evidence, that he or she is entitled to relief. (Id. at p. 829.) "There is no requirement in the statute that the defendant had to have pled guilty after the effective date of the statute." (Id. at p. 828.) Consequently, although defendant entered his plea in 1998, he may seek to avail himself of the relief afforded by section 1473.7.
Effective January 1, 2019, section 1473.7, subdivision (a)(1), was amended by the Legislature to provide: "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (Stats. 2018, ch. 825, § 2; § 1473.7, subd. (a)(1); see People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.) The statute further provides that all motions "shall be entitled to a hearing." (§ 1473.7, subd. (d).) In addition, the trial court must specify the basis for a grant or denial of the motion. (§ 1473.7, subd. (e)(4).) An order granting or denying the motion is appealable. (§ 1473.7, subd. (f).)
C. Analysis
Defendant contends Cantrell was ineffective for misadvising him on the immigration consequences of his plea. He also asserts that Cantrell's testimony did not contradict defendant's testimony he was misadvised by Cantrell to accept the plea because it would not affect his immigration status. Defendant also argues that "[i]t is reasonable to believe that both [his and Cantrell's] statements could be true and that they do not contradict one another."
As previously noted, a defendant may obtain relief under section 1473.7 without demonstrating his attorney was constitutionally ineffective. (See § 1473.7, subd. (a)(1).) But where the motion to vacate is based on an attorney's constitutionally deficient performance, section 1473.7 does not relieve defendant of his burden to show counsel was ineffective under the Strickland v. Washington (1984) 466 U.S. 668 (Strickland) test. (See Ogunmowo, supra, 23 Cal.App.5th at p. 75 [to show entitlement to relief under section 1473.7 based on ineffective assistance of counsel, defendant must satisfy Strickland test]; accord, Olvera, supra, 24 Cal.App.5th at pp. 1116-1117; People v. Tapia (2018) 26 Cal.App.5th 942, 951 (Tapia).)
"Ineffective assistance of counsel that damages a defendant's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to relief under section 1473.7." (Ogunmowo, supra, 23 Cal.App.5th at p. 75.) Thus, to obtain relief under section 1473.7 based on a claim of ineffective assistance, defendant had to prove "that (1) counsel's representation fell below an objective standard of reasonableness, as judged by 'prevailing professional norms' [citation], and, (2) 'but for counsel's unprofessional errors, the result of the proceeding would have been different' [citations]; that is, 'a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial' [citation]." (Olvera, supra, 24 Cal.App. 5th at pp. 1116-1117.)
"We note the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain. 'It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence . . . .'" (In re Alvernaz (1992) 2 Cal.4th 924, 938, quoting Strickland, supra, 466 U.S. at p. 689.)
Here, substantial evidence shows that defendant failed to meet his burden of establishing by a preponderance of the evidence any prejudicial error on Cantrell's part that damaged his ability to understand, defend against, or knowingly accept the immigration consequences of his plea. (§ 1473.7, subds. (a)(1) & (e)(1).) He claims that he had met his burden of proof by attacking Cantrell's testimony and the trial court's finding Cantrell "'more' credible " than defendant. We remind defendant that this court does not reweigh the evidence or reevaluate witness credibility. (D'Arcy, supra, 48 Cal.4th at p. 293.)
At the hearing on the petition, defendant testified that he was misadvised by Cantrell, that Cantrell told him several times his conviction would not affect his immigration status, and that he wanted to take the case to trial but Cantrell insisted and convinced him the case would not cause him to be deported. The only evidence he offered that was relevant to his claims was his self-serving testimony. However, "[a]n allegation that trial counsel failed to properly advise a defendant is meaningless unless there is objective corroborating evidence supporting appellant's claimed failures." (People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) Thus, defendant's claims require "corroboration and objective evidence because a declaration [or testimony] by defendant is suspect by itself." (Id. at p. 224.) Moreover, "courts should not disturb a plea merely because of subsequent assertions by a defendant claiming his lawyer was deficient. The reviewing court should also assess additional contemporaneous evidence." (Ibid.) Defendant has presented no such corroborating evidence here.
Substantial evidence shows that Cantrell informed defendant of the immigration consequences of the guilty plea, that defendant was aware of the immigration consequences of his guilty plea, and that he understood those consequences. Cantrell testified that he was "absolutely positive beyond a reasonable doubt that [he] told [defendant]" of the immigration consequences of his plea—not only because it was his custom and practice to so advise his clients, but because defendant in particular had been charged with a drug offense, which entailed an increased risk of deportation. Cantrell's testimony also undermined defendant's claims of misadvisement. For example, defendant claimed that he was informed that serving time in county jail instead of prison would reduce the risk of deportation or other consequences. Cantrell, however, testified that he never would have so advised defendant because "[w]hat triggers the risk is the conviction, not where you spend your custody time." Similarly, defendant asserted that Cantrell "'insisted'" that he take the plea deal because he could not pay Cantrell more money to take the case to trial. Yet, Cantrell testified that he had been appointed to represent defendant, and as such did not ask defendant for money at all, let alone additional fees to take the case to trial.
Cantrell's testimony was substantially corroborated by defendant's plea form. Specifically, defendant initialed the provision in the plea form that stated, "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest)." And two witnesses—defendant's Spanish interpreter, and Cantrell—signed statements in the plea form which verify that the entire form, including the immigration consequences provision, had been personally read, translated, and explained to defendant. (See Perez, supra, 19 Cal.App.5th at pp. 829-830 [per section 1473.7, defendant failed to show lack of "meaningful[ ] understand[ing]" of immigration consequences because plea form, defense counsel, and trial court described those consequences and defendant stated that he understood them].) The record affirmatively shows defendant meaningfully understood the immigration consequences of his plea. (See Perez, at p. 830.)
Ultimately, the trial court found Cantrell more credible, defendant's self-serving testimony alleging Cantrell's deficiencies were not corroborated by anything else in the record, and substantial evidence supports the court's finding. Because defendant failed to meet his burden of proof to establish the elements of section 1473.7, subdivision (a)(1), the trial court did err in denying his motion. (See Tapia, supra, 26 Cal.App.5th at p. 956; see also Lee v. United States (2017) 137 S.Ct. 1958, 1961 ["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."].)
IV
DISPOSITION
The order denying defendant's motion to vacate his conviction pursuant to section 1473.7 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.