Opinion
H050623
04-22-2024
THE PEOPLE, Plaintiff and Respondent, v. MARIO AZCARRAGA RIVERA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. CC070734)
WILSON, J.
In 2000, defendant Mario Azcarraga Rivera pled guilty to three separate counts involving domestic violence in relation to his former girlfriend. In 2022, Rivera filed a motion to vacate his conviction pursuant to Penal Code section 1473.7 on the basis that as a noncitizen, he did not meaningfully understand the potential adverse immigration consequences associated with his plea. Following a contested hearing, the trial court denied Rivera's motion.
Undesignated references are to the Penal Code.
On appeal, Rivera claims the trial court erred in denying his motion by overlooking the language in section 1473.7 regarding relief from not just actual, but also potential adverse immigration consequences. In response, the Attorney General agrees that reversal is required but argues that the matter should be remanded for rehearing.
For the reasons stated below, we find that the trial court erred in not making an adequate finding under section 1473.7, and reverse and remand for rehearing with instructions.
I. Factual and Procedural Background
The following facts are derived from the probation report, which was attached as an exhibit to the People's opposition to Rivera's motion to vacate. As Rivera did not request for the record to be corrected or otherwise object to the probation report's inclusion, any confidentiality regarding the report is deemed waived.
On May 6, 2000, Campbell Police officers responded to a restaurant in Campbell after receiving reports of a fight. Shortly after their arrival, the officers observed Rivera exit the restaurant and enter his vehicle, which was parked outside. After approaching Rivera's vehicle to see if he had observed the fight, the officers saw him repeatedly punch the victim, P.B., in the face with a closed fist while her head was in his lap. Two of the officers removed Rivera from the vehicle, while P.B. exited the vehicle from the passenger's side and collapsed on the sidewalk. After paramedics arrived and transported P.B. to the hospital, it was discovered that P.B. had sustained substantial injuries all over her body.
We refer to the victim in the proceedings by his or her initials only to protect personal privacy interests pursuant to California Rules of Court, rule 8.90(b)(10) & (11).
P.B. indicated that she had been dating Rivera and went out with him that night to celebrate Cinco de Mayo. While at a restaurant, Rivera began flirting with a waitress. He told P.B. that he wanted to leave with the waitress. After P.B. asked him to drive her home, Rivera became angry and began punching her in the face, causing her to fall down. Rivera then kicked her in the head, face, and upper chest area; when P.B. attempted to run away, Rivera ran after her, caught her, and began punching her again. Rivera then dragged her by her hair to the vehicle, forced her into the vehicle, and slammed her head on the center console when she hesitated to say" 'I love you'" per his request.
Rivera then drove to Campbell, where he parked the vehicle and resumed punching P.B. in the head and face. P.B. was able to free herself, run out of the vehicle, and call 911 on her cell phone. Rivera chased after her and punched her in the face, causing her to fall. After kicking P.B. several times in the head, face, and upper body, Rivera then dragged her by her hair again to the vehicle, where he resumed punching her after she begged him not to hurt her.
Rivera told the officers that he and P.B. had been in a romantic relationship for the past eight years. Rivera and P.B. had gone out to a bar, where P.B. began talking about her ex-boyfriend and would not stop even when Rivera asked her to. P.B. and Rivera eventually got into an argument, which became physical when P.B. hit him. Rivera then began to hit her back when she refused to stop hitting him. Rivera admitted to grabbing P.B. by her hair but denied that he hit her.
B. Procedural History
1. Plea and Original Sentence
On August 23, 2000, the Santa Clara County District Attorney's Office filed an amended information charging Rivera with inflicting corporal injury on P.B. a cohabitant, resulting in a traumatic condition (§ 273.5, subd. (a); count 1); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2); and false imprisonment (§§ 236-237; count 3). For count 1, the information also alleged that Rivera personally inflicted great bodily injury on P.B. under circumstances involving domestic violence within the meaning of sections 12022.7, subdivision (d), and 1203, subdivision (e)(3). For count 2, the information further alleged that Rivera: (1) personally inflicted great bodily injury on P.B., which constituted a serious felony within the meaning of sections 667 and 1192.7; and (2) personally inflicted great bodily injury on P.B., a person not an accomplice to the offense, within the meaning of sections 12022.7, subdivision (a), and 1203, subdivision (e)(3).
On September 26, 2000, Rivera pled guilty to all three counts as charged and admitted to the enhancements. Rivera entered an unconditional plea to the information with no stipulated sentence apart from an agreement that a specific judge would handle sentencing. At the time of Rivera's plea, the trial court asked Rivera the following question: "If you were not a United States citizen, convictions of these offenses may have the consequence of your deportation, your exclusion from admission to the United States-if you thereafter left it-and/or your denial of naturalization pursuant to the laws of this country. [¶] Do you understand this?" Rivera responded "[y]es." The court also asked Rivera's counsel if he believed Rivera understood the potential consequences, to which counsel responded he did.
The trial court also asked Rivera if he understood that because he had entered an unconditional plea, he would have to prove unusual circumstances for the sentencing judge to grant him probation. The trial court advised Rivera that if the sentencing judge did not find unusual circumstances, he or she could sentence Rivera to the maximum possible sentence for the charges, which would be nine years in prison and three years of parole upon release. Rivera indicated he understood these consequences.
On October 30, 2000, the trial court sentenced Rivera to nine months in county jail and three years of formal probation.
2. Rivera's Motion to Vacate
On July 20, 2022, Rivera filed a motion to vacate his conviction pursuant to section 1473.7, subdivision (a)(1). In his motion, Rivera argued that his conviction under section 273.5 (count 1), an aggravated felony, was grounds for removal and denial of immigration relief. He also contended that because his conviction under section 245, subdivision (a)(1) (count 2) constituted a crime of moral turpitude, he was not only subject to mandatory removal, but also inadmissible under the Immigration and Nationality Act and therefore ineligible for adjustment in his immigration status. Rivera claimed that at the time of his plea, he did not receive any advisement that he could be subject to mandatory deportation, nor was he made aware of the actual or potential immigration consequences of his plea to the offenses as charged. While Rivera noted he most likely received a generic advisement in his plea form about potential immigration consequences (as required under section 1016.5), he claimed that such an advisement was insufficient because it did not indicate he could be deported, excluded, or denied naturalization as a mandatory consequence of his plea.
Under this section, a defendant who is no longer in custody may move to vacate a prior conviction or sentence on the basis that "[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 conviction or sentence." (§ 1473.7, subd. (a)(1).)
Rivera further argued that he was unaware of the complexities of immigration law, particularly the immigration consequences attached to a crime of domestic violence, aggravated felonies, and crimes of moral turpitude, all of which had only been clarified by further cases decided many years after his case was complete. He therefore claimed his guilty plea was "involuntary and unintelligent." Rivera noted that if he had been aware of such consequences, there was a reasonable probability that he would not have entered the guilty plea, based on his desire not to leave his family, including his daughter-a U.S.-born citizen-or his gainful employment if he were forced to return to Mexico.
In response, the prosecution argued that Rivera had failed to demonstrate he did not meaningfully understand the consequences of his plea. The prosecution noted that at the time of conviction, Rivera did not have substantial family and community ties to the United States as he had been living in the United States for less time than he had resided in Mexico, was separated from his wife, and did not live with his daughter. Rivera also did not contend that his counsel at the time misled him or provided him with inaccurate or incomplete advice regarding immigration consequences. The prosecution further contended that Rivera failed to establish prejudice as there was no evidence, he would have entered a different plea if properly advised.
3. Hearing on Motion to Vacate and Trial Court Decision
On September 22, 2022, the court held a hearing on Rivera's motion. The defense called Rivera to the stand, where he testified that he had not been informed his plea of guilty would make him inadmissible to the United States for the rest of his life or subject to other immigration consequences, and that he would not have taken the plea if he had been aware of such consequences. Rivera stated that as his goal was stay with his family and be safe, he would have been willing to negotiate a plea for more jail time. He also indicated that he would have, at a minimum, tried to obtain a deal that did not involve immigration consequences.
On cross-examination, Rivera indicated that he had been worried about potential immigration consequences at the time of his plea and believed he had discussed this with his attorney but could not remember if he had asked any questions of his attorney or the judge who took his plea. Rivera also believed his attorney may have informed him that by entering his guilty plea, he could be subject to removal; however, because his attorney told him it was a good offer, he agreed in order to stay in the United States and take care of his family.
At the conclusion of the hearing, the trial court denied Rivera's motion. In making its ruling, the court noted that Rivera argued that he did not understand his conviction could subject him to removal or other immigration consequences because of complexities in the law, which were not resolved until 2017. However, the court found that Rivera did not argue that "the law in effect at the time of his plea in 2000 rendered him removable or inadmissible or otherwise subject to potential or actual adverse immigration consequences. For instance, [Rivera] doesn't claim that he was unaware or misunderstood that his plea made him removable or inadmissible at [the time of his plea]." Further, his testimony confirmed he had received some immigration advisements when he entered his plea. Accordingly, the trial court found that Rivera did not demonstrate that there was any prejudicial error at the time of his plea "damaging his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence."
Rivera timely appealed.
II. Discussion
Rivera argues that the trial court erred in denying the motion on the basis that there was no prejudicial error at the time of his plea. Specifically, Rivera claims that his testimony and declarations clearly demonstrated that: (1) he was unaware of the potential negative immigration consequences he could face as a result of his plea; and (2) if he had been aware of these consequences, he would not have entered his plea and jeopardized his ability to remain with his family in the United States.
A. Legal Principles and Standard of Review
Under section 1473.7, a person who is no longer in criminal custody may move to vacate a conviction or sentence under certain circumstances, including on the basis that "[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 conviction or sentence." (§ 1473.7, subd. (a)(1).) Because the moving party must have completed his or her sentence prior to filing, these motions are often brought many years after the plea, as was the case here. (See People v. Vivar (2021) 11 Cal.5th 510, 526 (Vivar).)
A motion to vacate under section 1473.7 consists of a two-step analysis. By a preponderance of the evidence, "[t]he defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error." (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).) While section 1473.7 itself does not specifically define "prejudicial error," the California Supreme Court in Vivar noted that its meaning could be derived from the surrounding context. (Vivar, supra, 11 Cal.5th at p. 528.) Accordingly, the court determined that to show prejudicial error under section 1473.7, subdivision (a)(1), the defendant must demonstrate a reasonable probability that he or she would have rejected the plea if he or she fully understood its actual or potential immigration consequences. (Vivar, supra, 11 Cal.5th at p. 529.) The trial court must examine the totality of the circumstances in determining whether the defendant has demonstrated this reasonable probability, including the following factors: "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." (Id. at p. 530.)
We review a trial court's decision to grant or deny a motion under section 1473.7 under the independent review standard. (See Vivar, supra, 11 Cal.5th at pp. 524-528.) Under this standard, we" 'exercise [our] independent judgment to determine whether the facts satisfy the rule of law' [Citation.]" (Id. at p. 527.) But unlike de novo review, where we conduct an original appraisal of the facts, we do not "second-guess" any factual findings based on the trial court's own observations. (Ibid.) Instead, we give particular deference to any factual findings based on the trial court's personal observations of witnesses. (Id. at pp. 527-528.) However, if the facts are derived from written declarations or other documents, we are not required to exercise such deference as we are in the same position to interpret written records as the trial court. (Id. at p. 528.) Therefore, it is ultimately "for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (Id. at p. 528.)
B. Analysis
1. The Trial Court Erred in Not Making an Adequate Finding Under Section 1473.7
Rivera argues that the evidence presented at the hearing sufficiently demonstrated that he made a mistake or error in assuming that as a result of changing his plea there would not be any permanent immigration consequences. Consequently, the trial court erred in concluding Rivera "made no mistake" and that there was no "prejudicial error" pursuant to section 1473.7. The Attorney General believes the trial court committed error but that the error was based on the trial court's belief that the post plea federal court decisions (cited by Rivera at the hearing) were not changes to immigration law and therefore could not establish error at the time of Rivera's plea. We conclude that the trial court relied on an erroneous understanding of Rivera's argument and consequently did not make the required finding under section 1473.7.
When Rivera entered his plea in 2000, federal law already stated that crimes of domestic violence, crimes of moral turpitude, and aggravated felonies were deportable offenses. (See 8 U.S.C. § 1227(a)(2)(A)(i), (A)(iii), &(E)(i)). Federal law also stated that any alien convicted of a crime of moral turpitude, with certain exceptions, was inadmissible for a visa or admission to the United States. (8 U.S.C. § 1182(a)(2)(A)(i)(I).) Accordingly, the crimes for which Rivera was convicted were subject to deportation at the time of his plea itself. The federal cases cited by Rivera only clarified that the specific statutes he pled to constituted deportable crimes under the statute or rendered a defendant inadmissible for a status change. (See Carrillo v. Holder (9th Cir. 2015), 781 F.3d 1155, 1159 [holding that corporal injury against a spouse under section 273.5 constituted a crime of domestic violence that would render the defendant subject to deportation]; see also Safaryan v. Barr (9th Cir. 2020) 975 F.3d 976, 983-988 [confirming a previous Board of Immigration Appeals finding that assault by means likely to produce great bodily injury under section 245, subdivision (a)(1), constituted a crime of moral turpitude].) As noted by both parties," 'decisions of statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant.'" (United States v. Aguilera-Rios (9th Cir. 2014) 769 F.3d 626, 631.) Consequently, it is undisputed that as a result of pleading guilty to all counts and enhancements, Rivera faced potential adverse mandatory immigration consequences at the time of his plea itself.
In addition, case law demonstrates that a generic advisement about potential immigration consequences does not meet the requirements of section 1473.7 when the offenses in question carry mandatory immigration consequences. (See People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065-1066; see also People v. Soto (2022) 79 Cal.App.5th 602, 609.)
Section 1473.7 states in "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 conviction or sentence." (§ 1473.7, subd. (e)(4).) Prior to ruling on the 1473.7 motion, the trial court stated Rivera "doesn't claim that he was unaware or misunderstood that his plea made him removable or inadmissible at [the time of his plea]." In addition, the trial court determined that Rivera's argument appears to be "that it's the change in federal immigration law many years after his plea that now makes him vulnerable to adverse immigration-related consequences" and concluded that (1) Rivera had not shown "that he was operating under any error at the time of his plea" and (2) "the purported error did not arise until many years after his plea." Such conclusions demonstrate that the trial court believed that Rivera was seeking relief under section 1473.7 not because he did not meaningfully understand the immigration consequences at the time of his plea, but rather because he later became aware of changes or further clarifications to immigration law related to his convictions.
However, the evidence presented to the trial court belies the conclusion that Rivera was making such an argument. For example, Rivera's declaration stated:" [¶] ... [¶] 7. [a]t the time of my plea, I did not meaningfully understand that this conviction could become a permanent removable offense years after my plea and become disastrous from an immigration law perspective. ... [¶] 10. I did not previously consult an immigration attorney and did not understand what immigration consequences pleading guilty would have. ... [and] [¶] 12. [o]ne of the determinative factors in the decision to accept or reject a plea offer was not having immigration consequences." In addition, the trial court received testimony from Rivera that if he had known "there were bad immigration consequences from his plea" he would not have entered a guilty plea. Because the trial court appears to have relied on an erroneous understanding of Rivera's argument, it did not address this critical first step of the section 1473.7 analysis and make a finding of whether or not Rivera meaningfully understood the actual or potential immigration consequences "at the time" of his plea. Consequently, the trial court erred in not satisfying this requirement of section 1473.7. (§ 1473.7, subd. (e)(4).)
With the current record before this court, which included live witness testimony and the related ability to make a credibility determination, we do not believe it would be appropriate for us to proceed with an independent review of the trial court's denial of relief under section 1473.7, and will therefore remand for further hearing. (See Espinoza, supra, 14 Cal. 5th at pp. 325-326 [noting that in certain cases, remanding an erroneously denied section 1473.7 motion for reconsideration and further development of the record "may be advisable"]; see also People v. Alatorre (2021) 70 Cal.App.5th 747, 766 [suggesting that when a section 1473.7 motion is erroneously denied, a remand for reconsideration may be appropriate unless, as a matter of law, the motion is legally sufficient to demonstrate entitlement to relief].)
As the Attorney General notes, the trial court did not make any credibility determinations regarding Rivera's testimony, including his statements that his counsel did not discuss "aggravated felony" or "crime of moral turpitude" with him and never informed him that by entering his plea, he could be subject to removal from or inadmissible to the United States for the rest of his life. We acknowledge that the court was not required to make such specific findings under the express language of the statute. However, "[t]he more robust and inclusive a record, the greater the opportunity for effective persuasion and meaningful judicial review. And the 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.) Further, the focus of a section 1473.7 inquiry is not objective, but instead focuses 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." (People v. Mejia (2019) 36 Cal.App.5th 859, 871, quoting People v. Camacho (2019) 32 Cal.App.5th 998, 1009; see also People v. Jung (2020) 59 Cal.App.5th 842, 857.) Therefore, if a defendant testifies that he did not understand the immigration consequences of his plea at the time he entered it, it necessarily follows that the trial court must determine the credibility of such a claim in assessing whether the defendant has proven error.
Accordingly, we find that the appropriate remedy is to remand for the trial court to rehear the matter and assess the credibility of Rivera's statements regarding the claimed error consistent with further guidance in this opinion.
2. The Issue of Prejudicial Error
As we are remanding the matter for rehearing, we believe it may be of use to indicate what factors may be appropriate for the trial court to consider in addressing the issue of prejudicial error.
As stated earlier, in order to prevail under section 1473.7, "[a] defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error." (Espinoza, supra, 14 Cal.5th at p. 319.) To establish prejudicial error, the defendant must demonstrate a reasonable probability that he or she would have rejected the plea if he or she fully understood its actual or potential immigration consequences. (Vivar, supra, 11 Cal.5th at p. 529.) "A 'reasonable probability' 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (People v. Hardy (2021) 65 Cal.App.5th 312, 329.) The trial court must examine the totality of the circumstances in determining whether the defendant has demonstrated this reasonable probability, including the following factors: "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 immigrationneutral negotiated disposition was possible." (Vivar, supra, 11 Cal.5th at p. 529 .) "Also relevant are the defendant's probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. [Citation.]" (Espinoza, supra, 14 Cal.5th at pp. 320321.)
A defendant must provide objective evidence in order to support factual assertions regarding prejudicial error. (Vivar, supra, 11 Cal.5th at p. 529 .) Such evidence can consist of facts provided by declarations, contemporaneous notes or documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges faced. (See id. at pp. 530-531.)
In Espinoza, the California Supreme Court provided further guidance on what constitutes objective evidence relevant to the question of prejudicial error. With respect to community ties, the court noted that objective evidence includes "facts provided by a defendant's declaration or declarations from family members, friends, colleagues, community members, or other acquaintances. [Citations.]" (Espinoza, supra, 14 Cal.5th at pp. 321-322.) The court also noted that in evaluating whether "alternative, immigration-safe dispositions" were available at the time of the defendant's plea, relevant factors include "the defendant's criminal record, the strength of the prosecution's case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney's charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences." (Id. at p. 323.) The Espinoza court indicated that the above factors were not exhaustive, and "no single type of evidence is a prerequisite to relief." (Id. at p. 321.)
In reaching our decision, we do not express any position about whether Rivera can establish that he did not meaningfully understand the immigration consequences of his plea and if he did not, whether that misunderstanding constituted prejudicial error under section 1473.7.
III. Disposition
The trial court's order denying the motion to vacate is reversed, and the matter is remanded for rehearing consistent with our opinion.
WE CONCUR: Greenwood, P.J. Bamattre-Manoukian, J.