Opinion
D075748
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO CASILLAS RUBALCABA, Defendant and Appellant.
Richard G. Cenci for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette Martinez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD155540) APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. Richard G. Cenci for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Rodolfo Casillas Rubalcaba pled guilty to one count of selling or furnishing a controlled substance to a minor in 2001 and was deported as a result. Approximately 18 years later, he filed a motion asserting that his attorney failed to inform him of the potential immigration consequences of his plea and asking the superior court to vacate his conviction pursuant to Penal Code section 1473.7. The superior court denied the motion.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, Rubalcaba claims that the superior court erred because the evidence that the People submitted in response to his motion was insufficient as a matter of law to establish that Rubalcaba was properly informed of the immigration consequences of his guilty plea, the superior court was biased, and the superior court did not conduct a proper analysis under section 1473.7. We disagree and affirm the order denying Rubalcaba's motion.
FACTUAL AND PROCEDURAL BACKGROUND
Rubalcaba was born in Mexico. He became a lawful legal permanent resident of the United States in 1993, when he was approximately 24 years old.
In October 2000, the People charged Rubalcaba with two counts of sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); counts 1 and 2), one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 3), and one count of soliciting a minor to use or sell methamphetamine (Health & Saf. Code, § 11380, subd. (a); count 4), together with a number of enhancement allegations. Rubalcaba faced up to 24 years in prison if convicted on all counts.
On the advice of his counsel, Rubalcaba accepted a plea agreement and pled guilty to one count of soliciting a minor to use or sell a controlled substance, and an associated allegation that the minor was more than four years younger than him (Health & Saf. Code, § 11380.1, subd. (a)(1) & (3)). As stipulated in the agreement, Rubalcaba was sentenced to seven years in prison.
Contemporaneous with his change in plea, Rubalcaba signed a change of plea form that included the following provision: "I understand that if I am not a citizen of the United States a plea of Guilty or No Contest can or will result in removal or deportation, exclusion from admission to this country, and denial of naturalization." Rubalcaba placed his initials in a box next to this disclosure. He also placed his full signature under an attestation that read, "I declare under penalty of perjury that I have read, understood, and initialed each item above and any attached addendum, and everything on the form and any attached addendum is true and correct." Rubalcaba's attorney also signed the form, indicating that he had "personally read and explained to the defendant the entire contents of this plea form," and an interpreter signed the form indicating that he had translated the entire contents of the form to Rubalcaba.
In April 2001, an immigration officer contacted Rubalcaba in prison and told him that he would be placed on an immigration hold after he completed his sentence. In July 2004, the United States Department of Justice issued a notice stating that an immigration judge had ordered that Rubalcaba be deported to Mexico upon his release.
In January 2019, Rubalcaba filed a motion to vacate his guilty plea and conviction pursuant to section 1473.7. In an attached declaration, he asserted that his attorney never asked him about his immigration status and failed to advise him of the potential adverse immigration consequences of his plea and that, as a result, he was unable to meaningfully understand, defend against, or knowingly accept the immigration consequences of the plea agreement. Rubalcaba stated that he had sought the advice of another attorney prior to entering his guilty plea and that attorney informed him that he would be facing up to 24 years in prison if he did not accept the plea agreement, but did not explain the immigration consequences of a guilty plea.
In addition, Rubalcaba declared that he did not speak English and that his attorney had told him that he would be signing the change of plea form in order to obtain the promised sentence, and that he would be out in four years with good behavior. Rubalcaba stated that he "did not have any knowledge, either specific or general, of what consequence [his] controlled substance plea would have on [his] immigration status," and "did not have the opportunity to choose whether immigration consequences or criminal sentence concerns were more important." Finally, he declared that he would have proceeded to trial if he had known about the adverse immigration consequences of the proposed plea agreement.
In response, the People submitted a copy of the signed change of plea form and argued that the form directly contradicted Rubalcaba's assertions that his attorney had not advised him, and that he therefore had no knowledge, of the immigration consequences of the plea.
The superior court held a hearing on the motion on March 26, 2019. After considering the papers and the arguments of both parties, the court found that Rubalcaba had not met his burden pursuant to section 1473.7 to establish by a preponderance of the evidence that he was unaware of the immigration consequences of pleading guilty, and that he would not have pled guilty if he had understood those consequences. The court proceeded to deny the motion.
Rubalcaba appeals.
DISCUSSION
Section 1473.7, subdivision (a) allows individuals who are no longer imprisoned or restrained to move to vacate a conviction or sentence on the ground 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 plea of guilty or nolo contendere," or because of newly discovered exculpatory evidence. The trial court "shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a)." (Id. subd. (e)(1).)
A defendant requesting relief under section 1473.7 bears the burden of establishing, by a preponderance of evidence, that there is a reasonable probability that he or she would not have entered into the plea agreement if he or she had meaningfully understood the associated adverse immigration consequences. (People v. Camacho (2019) 32 Cal.App.5th 998, 1011-1012 (Camacho); People v. Mejia (2019) 36 Cal.App.5th 859, 866 ["[t]he key to the statute is the mindset of the defendant . . . at the time the plea was taken"].) "A fact is proved by a preponderance of the evidence if . . . it is more likely than not that the fact is true." (People v. Gonzales (2017) 16 Cal.App.5th 494, 500.)
The superior court found that Rubalcaba did not meet his burden to establish that he was entitled to relief pursuant to section 1473.7. We agree.
As the superior court pointed out, the form that Rubalcaba signed when he entered his guilty plea directly undermines his assertions that he was not advised of, and was not aware of, the immigration consequences of his guilty plea. (See People v. Perez (2018) 19 Cal.App.5th 818, 829 (Perez) [burden not met where record belies defendant's assertion that he did not understand the immigration consequences of his plea].) Rubalcaba initialed the change of plea form next to a statement indicating that his guilty plea could or would result in removal or deportation in the event that Rubalcaba was not a United States citizen. Rubalcaba was not a citizen of the United States at the time of the plea and does not allege that he had any reason to believe that he was.
Rubalcaba contends that he did not understand the change of plea form because he did not speak English, and that his attorney committed prejudicial error by failing to inform him of the immigration consequences of the plea. The change of plea form contradicts these assertions, as well. The form contains a sworn statement from Rubalcaba's attorney indicating that the attorney had personally explained the entire contents of the form to Rubalcaba—which would have included the immigration provision—and a sworn statement from an interpreter indicating that he had translated the entire form to Rubalcaba.
Rubalcaba argues his declaration, together with the exhibits establishing that he was deported, was sufficient to meet his burden, and that the People did not provide sufficient evidence to rebut that evidence. We disagree. The change of plea form, itself, was sufficient to rebut Rubalcaba's uncorroborated, self-serving declaration. As discussed, that form indicates on its face that Rubalcaba's attorney did inform him, and that he was thus aware, of the immigration consequences of his plea. Moreover, Rubalcaba, his attorney, and the interpreter signed the form contemporaneously with the entry of the plea. By contrast, Rubalcaba signed his declaration approximately 18 years later, in the context of supporting his own motion to vacate his guilty plea and conviction, and did not provide any corroborating evidence to support the assertions contained in his declaration. (See Perez, supra, 19 Cal.App.5th at p. 830 [trial court properly considered record contemporaneous to plea]; In re Alvernaz (1992) 2 Cal.4th 924, 938 [defendant's self-serving statement insufficient in and of itself to meet burden of proof].)
Rubalcaba acknowledges that the court in Perez, concluded that a similar change of plea form belied the defendant's declaration. (See Perez, supra, 19 Cal.App.5th at pp. 829-830.) However, he asserts that Perez is distinguishable because the trial court in that case also relied on the transcript from the original change of plea hearing, during which the trial court pointed out the immigration consequences of the plea, Perez's attorney confirmed that he had discussed those consequences with Perez, and the court allowed Perez additional time to confer with his attorney at the time of his plea. (Id. at pp. 822-823, 830.) Although the superior court in this case did not have the benefit of a transcript reflecting the original change of plea hearing, the section 1473.7 hearing was before the same judge who originally accepted Rubalcaba's plea, the court recalled that its practice would have been to admonish the defendant that he would be deported as a result of the plea, and defense counsel conceded "based upon the record, one could assume that that occurred." Regardless, the change of plea form itself indicates that Rubalcaba's attorney explained, and that Rubalcaba stated that he understood, the immigration consequences of his guilty plea. Thus, while there are some differences in the facts of Perez and those of the present case, the records in each case similarly undermine the subsequent self-serving statements made by the defendants.
Rubalcaba also relies on Camacho, and contends, like the defendant in that case, that he would not have signed the plea agreement if he had been aware of the potential immigration consequences of a guilty plea. In Camacho, the defendant conceded that the court had informed him that his guilty plea could lead to deportation but explained that his attorney had subsequently told him that "everything would be fine" and that he believed the plea agreement would not put him at risk of deportation because it did not require that he serve any time in prison. (Camacho, supra, 32 Cal.App.5th at pp. 1001-1002.) Further, Camacho demonstrated that he had strong ties to the United States in that he had lived here since he was two years old and had a wife and two young children who were United States citizens. (Id. at p. 1001.)
By contrast, Rubalcaba was facing significant jail time with or without the plea agreement, there is no indication his attorney indicated that "everything would be fine," and Rubalcaba had moved to the United States at the age of 24, approximately seven years before he entered his plea, and likely still had significant ties to Mexico. He presented no evidence that he had family in the United States. Given these facts, Rubalcaba's assertion that he would not have accepted the plea agreement if he had understood the immigration consequences lacks the corroborating circumstances that existed in Camacho. (See Camacho, supra, 32 Cal.App.5th at pp. 1011-1012; see also Lee v. United States (2017) 137 S.Ct. 1958, 1968-1969 [strong connections to United States, including care of elderly naturalized parents, made it reasonable to accept defendant's assertion that he would have gone to trial if he had known the immigration consequences of his plea].)
In his reply brief, Rubalcaba asserts, "The United States was his home. His family and work was here." He offers no evidentiary support for these assertions. --------
Finally, Rubalcaba asserts that the court was biased against him because the judge who ruled on his motion to vacate his conviction is the same judge who had originally accepted his guilty plea. Rubalcaba also claims that the court incorrectly analyzed the motion under section 1016.5, instead of section 1473.7. We are not persuaded by either assertion.
Section 1016.5 requires that the court advise the defendant, before accepting a guilty plea, that the conviction associated with the plea may result in deportation. (§ 1016.5, subd. (a).) In the event that the court fails to provide the required advisement, the court must vacate the conviction and allow the defendant to withdraw his or her plea upon request. (§ 1016.5, subd. (b).) Section 1473.7 entitles a defendant to similar relief, but based on a showing that a prejudicial error—typically an error by the defendant's attorney—damaged the defendant's ability to meaningfully understand the immigration consequences of his or her plea, regardless of whether the court provided the advisement required by section 1016.5. (See, e.g., Camacho, supra, 32 Cal.App.5th at pp. 1001-1002 [defendant entitled to relief under § 1473.7 despite the court advising him of the immigration consequences of his plea].)
In this case, the superior court acknowledged the difference between the two statutes and clearly stated that Rubalcaba had not met his burden under section 1473.7. Rubalcaba nevertheless contends that the superior court was instead focused on section 1016.5, and that the court was biased by its own previous ruling, because the court indicated that its standard practice was to admonish all defendants regarding the immigration consequences of any change in plea. However, the court raised this point in conjunction with a discussion about the sworn statements of Rubalcaba and his attorney in the change of plea form that contradicted Rubalcaba's declaration. Considering the entire discussion in context, it is apparent that the court considered its own admonition only insofar as it further belied Rubalcaba's assertions that his attorney had not discussed, and that he was not aware of, the immigration consequences of the plea. That analysis is relevant to section 1473.7, and not section 1016.5. Thus, the record indicates that the superior court conducted an appropriate analysis under section 1473.7. Rubalcaba provides no other evidence or argument to support his assertion that the court was biased.
We conclude that the record supports the superior court's conclusion that Rubalcaba failed to meet his burden to establish that he is entitled to relief under section 1473.7.
DISPOSITION
The order is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.