Opinion
E071882
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL AGUAYO RUBALCABA, Defendant and Appellant.
Ricardo A. Figueroa for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR49176) OPINION APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge. Affirmed. Ricardo A. Figueroa for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
In 1993, defendant and appellant Jose Manuel Aguayo Rubalcaba pled guilty to one count of possession of cocaine for sale. (Health & Saf. Code, § 11351, count 1.) A trial court placed defendant on formal probation for three years under specified conditions. On January 1, 2017, Penal Code section 1473.7 went into effect. (Stats 2016, ch. 739, § 1.) It permits a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant's ability to understand the immigration consequences of the plea. (Pen. Code, § 1473.7.) On April 25, 2018, defendant filed a motion to vacate his conviction under Penal Code section 1473.7. The court denied the motion.
The record sometimes reflects defendant's name as simply Jose Manuel Aguayo. However, the motion at issue and the notice of appeal list his name as Jose Manuel Aguayo Rubalcaba.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends that the court erred in denying his motion under section 1473.7. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer's report.
On April 28, 1993, police officers went to defendant's residence to execute a search warrant. When they arrived, defendant was standing outside the front door, saw them, and yelled, "Narco," into the open door. A man slammed the front door shut. The officers gained entry into the residence and found 8.1 ounces of cocaine, Ziploc baggies, one-half pound of marijuana, a cell phone, and $105 in defendant's wallet. When questioned by the officers, defendant stated he purchased the cocaine earlier that morning and brought it to his residence with a scale. He advised that no one else in the fourplex residence was involved in narcotics trafficking. Defendant's girlfriend was questioned and stated that defendant told her he was going to start dealing drugs. Defendant was arrested. When he was interviewed at the jail, he said he was approached by someone named Carlos, who asked if he wanted to sell some drugs. On April 28, 1993, Carlos brought eight ounces of cocaine and one-half pound of marijuana to defendant's house. Defendant said Carlos asked him to take the drugs to another friend's house, so he was just holding the drugs at the time of his arrest. Defendant said he was not going to get anything in return for his involvement.
On April 30, 1993, the district attorney charged defendant with possession of cocaine for sale (Health & Saf. Code, § 11351, count 1) and possession of marijuana for sale (Health & Saf. Code, § 11359, count 2).
On July 6, 1993, defendant pled guilty to count 1, a factual basis was taken, and the court accepted the plea. The court referred the matter to the probation department for a presentence report.
We note the record on appeal does not appear to contain a copy of the plea agreement or transcript of the plea hearing.
On August 11, 1993, the probation department filed a presentence report stating that defendant did not have a prior criminal record, but he was an active participant in the current offense. Defendant reported that he was in the United States illegally. The probation department recommended placing him on probation for three years under specified terms. Term No. 18 was handwritten onto the report, stating: "If deported, do not enter U.S. illegally."
The court suspended imposition of sentence and placed defendant on formal probation for a period of three years. The court committed defendant to the custody of the sheriff to serve 365 days, with 158 days of presentence credits. On December 22, 1993, defendant was released to the United States Customs and Border Protection (border patrol), as he was a citizen of Mexico.
On February 23, 1994, the probation department filed an ex parte application and order, explaining that defendant was released to the border patrol on December 22, 1993, and requesting that the probation conditions be modified to include term No. 19, which stated that if defendant was expelled or deported, term No. 16 would be suspended during the period of expulsion or deportation. Term No. 16 required him to "report to the probation officer immediately or on release from custody for initial instructions and abide by all reasonable directives."
In or around March 29, 1996, it was alleged that defendant violated term No. 4 of his probation by failing to pay a fine of $2,970. The court suspended the fine, noting that defendant had been deported.
On April 28, 2003, defendant filed a motion to expunge his 1993 conviction under section 1203.4. On May 9, 2003, the court granted the motion and set aside his conviction. However, he apparently did not receive "full relief" as to the immigration consequences.
On April 25, 2018, defendant filed a motion to vacate his conviction under section 1473.7, alleging that his counsel failed to investigate and accurately advise him of the specific consequences of his plea and failed to bargain for an alternative disposition. Defendant alleged that he and his counsel never had a meaningful conversation about the case, the charges against him, the evidence, or the immigration consequences of his plea. His counsel never explained to defendant that a plea to the charge would mean a permanent bar to any future attempt to become a legal permanent resident, or that he could be deported at any time.
The hearing on the motion was continued several times. The court held the hearing on the motion on October 23, 2018. The prosecutor informed the court that defendant's plea counsel was now deceased. The court reviewed the probation department's presentence report and supplemental form indicating that defendant was previously released to the border patrol. The court asked defense counsel whether or not defendant was advised at the time of the plea that he could be deported. The court noted that everything in the record indicated that, not only was he advised, but the probation department "factored into the terms and conditions of probation so that he wouldn't have to comply when he would be deported, and then was turned over to the border patrol." Defense counsel replied that it was correct; however, the fact that defendant was taken by the border patrol did not mean he was advised of the consequences of the plea.
The court was "absolutely baffled" by counsel's argument and reiterated that, not only did the probation officer's report indicate defendant was here illegally, but the probation department factored in that if he got deported, he was going "to need to have something in there because everyone was expecting he was going to get deported because of it." The court noted that the term was discussed in court and was "handwritten in." The court thus failed to see how "in any rational sense" defendant could not have known he was going to be deported at that time. It further asked that if defendant somehow did not know, why he did not do something about it in 1993.
Defense counsel responded that it was not only the immediate deportation, but "that plea at the time was making him ineligible for any type of relief forever." Counsel further asserted that he did not think defendant was advised he was going to be deported and permanently barred from ever becoming a United States resident. Counsel confirmed with the court that he was referring to the standard in Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). However, the court stated that failure to make such advisements prior to Padilla was not ineffective assistance of counsel, as long as the advisements were in conformity with the standards of profession at the time. Even so, the court stated that all the evidence seemed to point to the idea that defendant knew he would be deported. The court said it had sympathy for defendant's current situation, but it had to make its determination based on the evidence, not on sympathy. Defense counsel stated his argument was not that defendant was not advised about the immediate immigration consequences (i.e., deportation), but that he was not advised his conviction was going to be a permanent bar for him to become a citizen or permanent resident. The court reiterated that the standard at the time was not that he had to be told he would be deported, as in Padilla. It further stated that this was not a misadvisement case or a case where defendant was just released in the United States and thought his conviction was "nondeportable" because he was so advised, and he was now suddenly finding out he was deportable. The court added that defendant had known for 20 years he was deportable because he was actually deported in 1993. It concluded that defendant was properly advised and was, in fact, deported at the time and had been aware of the consequences of his particular plea on his immigration status, when the plea was taken in 1993. Thus, based on the evidence, the court denied the motion.
ANALYSIS
The Court Properly Denied Defendant's Motion
Defendant argues the court erred in denying the motion to vacate his conviction under section 1473.7. He claims his plea counsel rendered ineffective assistance by failing to inform him of the immigration consequences of the plea, failing to investigate the impact of the plea on his immigration status, and failing to explore any alternate disposition of the case. Defendant asserts that his counsel simply advised him to waive his rights and enter a guilty plea. He claims that if he had been advised about the immigration consequences of his plea, he would have rejected the prosecution's offer and gone to trial. He also contends the court's reliance on the statements made in the probation report was misplaced, as those statements were not relevant to the question of whether defendant was properly advised by his plea counsel before or at the time he entered his guilty plea. He points out that he entered his plea on July 6, 1993, while the probation report was written on August 4, 1993, and filed with the court on August 11, 1993. The People contend that defendant has failed to establish any error. We agree with the People.
A. Standard of Review
"We independently review the order denying the motion to vacate which 'presents a mixed question of fact and law.' [Citations.] We defer to the trial court's factual determinations if supported by substantial evidence, but exercise our independent judgment to decide whether the facts demonstrate deficient performance and resulting prejudice." (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.) Ultimately, "we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm." (People v. Geier (2007) 41 Cal.4th 555, 582.)
B. Defendant Has Failed to Establish He is Entitled to Relief
Section 1473.7, which became effective on January 1, 2017, provides that a person who is no longer imprisoned may move to vacate a judgment if the "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).) Thus, a defendant is required to demonstrate that he or she suffered prejudicial error. (Ibid.) "The 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)." (§ 1473.7, subd. (e)(1).)
"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. [Citation.] To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75 (Ogunmowo); see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) We note that in 2018, the following language was added to section 1473.7, subdivision (a)(1): "[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (See People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.)
In the instant case, defendant contends his trial counsel's performance was defective under Padilla, supra, 559 U.S. 356. In Padilla, the defendant, a lawful permanent resident, pled guilty to drug charges involving the transportation of a large amount of marijuana in his tractor-trailer. Before the defendant pled guilty, his counsel failed to advise him that he would face deportation after pleading guilty and, in fact, told him he " ' "did not have to worry about immigration status since he had been in the country so long." ' " (Id. at p. 359.) The United States Supreme Court concluded that it was not difficult to find deficiency since the consequences of the defendant's plea "could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect." (Id. at p. 369.) The Supreme Court stated that to provide effective assistance of counsel, "we now hold that counsel must inform [the] client whether [the] plea carries a risk of deportation." (Id. at p. 374.)
Padilla is not instructive here since defendant pled guilty approximately 17 years before the opinion in Padilla was issued. In Chaidez v. United States (2013) 568 U.S. 342 (Chaidez), the Supreme Court concluded that Padilla "announced a new rule" by imposing an obligation on trial counsel to understand and accurately explain the immigration consequences of a plea to a defendant before the entry of that plea. (Chaidez, at pp. 352-354, 357-358; Padilla, supra, 559 U.S. at p. 369.) Furthermore, the Supreme Court held that Padilla could not be applied retroactively to cases that were final at the time the opinion in Padilla was issued. (Chaidez, at p. 358.) Therefore, defendant's plea counsel here had no affirmative obligation in 1993 to research and advise defendant of the actual immigration consequences of his plea. (Id. at pp. 357-358.)
In any event, defendant failed to meet his burden of establishing by a preponderance of the evidence any prejudicial error on his plea counsel'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 specifically claims his counsel failed to inform him of any immigration consequences of his plea, failed to investigate the impact of the plea on his immigration status, and failed to explore any alternate disposition of the case. The only evidence he offers that is relevant to his claims is his self-serving declaration. We note the ease with which a defendant may claim his counsel erred. (See In re Alvernaz (1992) 2 Cal.4th 924, 938.) 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 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. In his declaration, he alleged that his counsel did not advise him of the immigration consequences of his plea. He also stated he had been employed at his job for the last 16 years, he met his wife (a naturalized United States citizen) in 1997, they had three children, and they bought a home. The exhibits attached in support of his motion were his marriage certificate, his wife's certificate of naturalization, their children's birth certificates, a letter from his employer, and the deed to his home. He subsequently filed a supplemental brief in support of his motion, stating that he was currently in removal proceedings. He attached as exhibits the immigration court's order dated July 11, 2017, and a letter regarding the briefing schedule from the Board of Immigration Appeals. All the events established by these exhibits occurred years after defendant pled guilty. Therefore, the evidence defendant presented, while compelling, is not relevant to the claims regarding his plea counsel's alleged deficiencies.
We realize that defendant was not able to obtain a declaration from his plea counsel, since counsel passed away. In his reply brief, defendant asserts that he "cannot be faulted for [his counsel's passing]" and states that he did not have access to any other evidence from his plea counsel (e.g., case files). Defendant proceeds to argue that the People were "equally unable to present any evidence contradicting [his] declaration." However, defendant had the burden of proof, not the People. The unfortunate circumstance of his plea counsel's passing does not relieve him of that burden. (§ 1473.7, subd. (e)(1).)
We specifically note defendant's contention that his plea counsel rendered deficient representation by failing to negotiate an "alternate disposition of the case." To the extent he means that his counsel should have negotiated an immigration safe plea, "there is no evidence, only speculation, that an 'immigration safe' plea could have been negotiated." (People v. Tapia (2018) 26 Cal.App.5th 942, 955 (Tapia).) Moreover, there is no evidentiary support that his plea counsel did not attempt to negotiate an alternative disposition. (Ibid.)
Furthermore, we note the evidence produced by the People indicates that deportation was an anticipated consequence of defendant's plea. Such evidence included the probation report, which showed that defendant reported he was in the United States illegally. The probation department added conditions stating: "If deported, do not enter the USA illegally," and if defendant was deported, the condition that he report to the probation officer immediately or upon release from custody be suspended during the period of deportation. The evidence also showed defendant was committed to the custody of the sheriff for 365 days (minus custody credits) as part of his probation, and was then released directly to the border patrol and presumably deported. Moreover, as the People point out, despite his awareness of the added probation conditions regarding deportation, defendant apparently did not move to withdraw his plea before being placed on probation.
Ultimately, defendant's self-serving declaration alleging his plea counsel's deficiencies is not corroborated by anything else in the record. 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."].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MENETREZ
J.