Opinion
B327279
09-12-2024
THE PEOPLE, Plaintiff and Respondent, v. THUAT MINH PHAM, Defendant and Appellant.
UC Irvine School of Law Immigrant Rights Clinic and Anne Lai for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Filed Date 6/25/24
APPEAL from an order of the Superior Court of Los Angeles County No. KA075040 Rogelio Delgado, Judge. Affirmed.
UC Irvine School of Law Immigrant Rights Clinic and Anne Lai for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Defendant and appellant Thuat Minh Pham appeals from the trial court's order denying his Penal Code section 1473.7motion to vacate his 2006 no contest plea for committing a lewd act on a child under 14 years old (§ 288, subd. (a)). Because defendant has not met his burden of establishing that he did not meaningfully understand the immigration consequences of his plea, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
I. Plea and Sentencing
In a single-count information filed by the Los Angeles County District Attorney's Office on July 5, 2006, defendant was charged with committing a lewd act upon a child (§ 288, subd. (a)), a serious felony within the meaning of section 1192.7, subdivision (c). It was further alleged that the victim of the crime was under the age of 14 years old and that defendant "had substantial sexual conduct with" the victim. (§ 1203.066, subd. (a)(8).)
On August 9, 2006, defendant pled no contest to committing a lewd act upon a child. Regarding the immigration consequences of his plea, defendant was advised at the plea hearing: "If you are not a citizen, . . . a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
Defendant also signed a felony advisement of rights, waiver, and plea form (plea form) and initialed the following advisement: "Immigration Consequences - I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty." (Bolding omitted.) Defendant also initialed that, before entering the plea, he "had a full opportunity to discuss with [his] attorney the . . . consequences of [his] plea"; that he was entering the plea "freely and voluntarily and with full understanding of all the matters set forth in the pleading and in [the plea] form"; that "[n]o one ha[d] made any threats, used any force against [him], [his] family, or loved ones, or made any promises to [him], except as set out in th[e] form, in order to convince [him] to plead . . . no contest"; and that he had "no further questions of the Court or of counsel with regard to [his] plea(s) and admissions in this case."
Defendant was sentenced on November 13, 2006. The trial court noted that it had ordered and had received a section 1203.03 diagnostic report. The report's recommendation was that defendant was "a viable candidate for probation ...."
Section 1203.03 requires the Director of the Department of Corrections to "cause [a] defendant to be observed and examined and [to] forward to the court his [or her] diagnosis and recommendation concerning the disposition of [the] defendant's case." (§ 1203.03, subd. (b).)
The court sentenced defendant to the midterm of six years in state prison; suspended the execution of the sentence; and placed defendant on five years of formal probation, with the condition that he serve 364 days in county jail. Defendant received 215 days of custody credits.
On September 4, 2013, the trial court granted a motion brought pursuant to section 1203.4, "which allows former probationers to move for their conviction to be dismissed upon successful completion of probation terms." (People v. Chatman (2018) 4 Cal.5th 277, 282.) The court ordered that defendant's plea be set aside and vacated, a plea of not guilty be entered, and the information be dismissed. Defendant does not contend that the grant of the section 1203.4 motion has any bearing on the instant appeal.
II. Section 1473.7 Motion
On October 19, 2020, defendant filed a motion to vacate his 2006 conviction pursuant to section 1473.7. Defendant argued that his plea "was legally invalid because he failed to meaningfully understand the adverse immigration consequences of his conviction." In support of the motion, defendant submitted various declarations including his own and that of Sabrina Damast (Damast), an immigration attorney.
At the October 17, 2022, hearing on defendant's motion, defendant's counsel indicated that she was not seeking to introduce two other expert declarations that had been previously submitted. Accordingly, we do not summarize those declarations.
A. Defendant's declaration
Defendant was born in Vietnam in 1988. He came to the United States with his family in 1995, at the age of seven, "as a humanitarian refugee and because [he] suffered from childhood polio." Defendant became a lawful permanent resident of the United States in December 1995.
In 1999, at the age of 11, defendant was placed in foster care after suffering physical abuse from his family. Defendant "did not have a good relationship with his foster family[.]" He witnessed his foster father sexually abuse one of his foster sisters-"the victim in [defendant's] case."
Defendant was an 18-year-old high school senior when he was arrested. He had never been in criminal court before or previously charged with a crime. He pled guilty "on the advice of [his] attorney," but he "did not understand that [he] would be deportable even if [he] completed the terms of the plea offer." He "was under the impression that th[e] plea would not have immigration consequences" and that he would be "protect[ed]" by his green card. Defendant's attorney at the time (plea counsel) did not explain the possibility of negative immigration consequences; instead, plea counsel told defendant that he could go home if he pled guilty and that, "as long as [he] did well on probation, everything would be fine." Plea counsel did not go over the plea form with defendant.
The first time that defendant heard that the plea could result in his deportation was when the judge read his waiver of rights. Defendant "immediately became terrified" and asked plea counsel if that was true. Plea counsel "[waved] [defendant] off and told [him] to just say 'okay.'" Following the plea, defendant asked plea counsel, "'What am I going to do? Will I be deported?'" Plea counsel responded, "'Don't worry, you won't be deported.'"
In December 2008, immigration officers raided defendant's home with guns drawn. Defendant was detained and "realized for the first time that [his] conviction would result in [his] deportation." He was ordered removed in September 2009 and remained detained until October 2010.
Defendant averred that, had he known that his plea would result in his removal from the United States and deportation to Vietnam, he would not have pled guilty. Instead, he would have gone to trial, risked a prison sentence, or "would have sought an alternative plea that would not have such serious immigration consequences." At the time of his plea, defendant "had no relationships in Vietnam" and his "whole life was in the U.S." He remembered being "treated horribly" during his childhood at hospitals in Vietnam; "[g]oing back to Vietnam would have been [his] worst nightmare."
B. Damast's declaration
Damast is an immigration attorney with "a particular expertise in 'crimmigration' law," which is "the intersection of immigration and criminal law, with a focus on the immigration consequences of criminal convictions."
Defendant's 2006 plea "triggered his mandatory deportation under federal immigration law." Although defendant had been released from Immigration and Customs Enforcement custody, he had "still been ordered removed and [was] at risk of being deported at any time." "[B]ut for his guilty plea in this case, [defendant] would not be deportable and would be eligible for naturalization."
According to Damast, "[t]here were several alternative pleas that could have been pursued that would not have rendered [defendant] deportable nor barred him from relief from removal." Specifically, defendant could have pled to a felony violation of section 243.4, subdivision (a) (sexual battery), or section 136.1, subdivision (b)(1) (intimidation of a witness)-each carrying a sentence of 364 days in county jail-or to sections 236/237 (false imprisonment).
Damast did not assert that any pleas to these offenses were ever actually offered to defendant.
III. Hearing
The hearing on defendant's motion took place on October 17, 2022.
A. Trial court's review of the record
The trial court stated that it had reviewed the motion and court file, including the plea and sentencing transcripts. The court read portions of the 2006 plea transcript into the record,which showed that defendant was orally advised that, if he was "not a citizen of the United States this plea will have consequences of deportation, exclusion from admission and denial of naturalization to the United States." The court also considered the written plea form, which advised defendant of the adverse immigration consequences of his plea.
The trial court considered the transcript of the August 9, 2006, hearing during which defendant's plea was taken. That transcript, however, is not included in the appellate record before us.
B. Defendant's testimony
Defendant testified, repeating many of the assertions made in his declaration. He stated that, at the time of his plea, he had no family to care for him in Vietnam; he considered himself an American; and he was afraid to live in Vietnam, where he had been sexually abused. Plea counsel did not tell him that, by pleading guilty, he faced mandatory deportation or would lose his green card. Even though the judge told him that he "might get deported[,]" plea counsel told him not to worry about it. Accordingly, he did not understand that by pleading guilty he would face mandatory and automatic deportation. If he had known, he would not have pled guilty. Following the plea, defendant asked plea counsel if he would be deported. Plea counsel "said that your country won't accept you, that you won't be deported." A year after the plea, in 2007, defendant submitted an application to renew his green card.
On cross-examination, defendant confirmed that, by 2006, English was his primary language and that he "understood it pretty thoroughly[.]"
C. Plea counsel's testimony
Plea counsel did not specifically recall defendant's case. However, he testified that he underlined the immigration consequences in the plea form, which was consistent with his practice to highlight issues that he believed his clients needed to be aware of. His common practice was to interview his clients, find out their residency status, and then advise them on what he thought they should do. It was his routine practice at the time to "caution[]" and "advis[e]" his clients that they could be deported.
In 2006, plea counsel was not aware which countries accepted their citizens if they were ordered removed from the United States. It was "[d]efinitely not" within plea counsel's knowledge at the time to have told defendant that his country would not accept him and that he would not be deported. If defendant had raised a concern about the immigration consequences of his plea, plea counsel would not have told defendant not to worry about it. Nor would he have told a client to "just say 'yes[.]'"
Plea counsel's office was very conscious of immigration issues, and he was instructed that he must advise his clients that they will be deported even before deportation became mandatory. If a client ever raised a concern about immigration consequences, plea counsel would advise the client that it was the client's option whether to accept the plea, and that the client could "always . . . contest it and set it for jury and hopefully prevail."
On cross-examination, plea counsel testified that because of the volume of early disposition cases he handles, his notes in those cases are not very thorough. On redirect examination, plea counsel testified his notes were not the only consequences of the plea that he reviewed with his client, and that he would have reviewed with his client all of the consequences in the plea form.
The trial court noted that it was "kind of unique" that a diagnostic examination was ordered and asked plea counsel if he recalled the discussion of any potential dispositions. Plea counsel responded that with a defendant presenting "no prior history, it would be a stretch to get a diagnostic," but that he had been successful in obtaining one here. Plea counsel agreed that "there was an exploration of potential disposition."
D. Ruling
After entertaining argument, the trial court denied defendant's motion. The court explained:
"I have taken into consideration . . . defendant was 18 years old at the time and had no criminal history, but I also do have to balance that out with the other factors that were presented to me in this case. The fact is that . . . defendant was attending a magnet school here in Pomona. That's usually reserved for people that are high achieving. But without knowing anything about how . . . defendant was at 18, I'm not going to speculate at that. Just want to put it out on the record that defendant was attending a magnet school. He was 18 years old at the time.
"I . . . listened to his testimony and I have listened to [plea counsel]'s testimony, and I do note that on the [plea] form [plea counsel] does circle items that he feels very important that he discusses with his clients and in looking at the [plea] form there are multiple circles of different rights, his constitutional rights.
"When it comes down to the seriousness of the offense, he even wrote in 'strike,' 'violent felony' and when it comes to 'immigration consequences,' he's underlined that.... [D]efendant has initialed each and every box. He was orally advised that he would be deported .... [A]lso the sentence here which was [a] unique sentence because . . . this wasn't something that was some assembly line. There was some discussion and some thought about the fact that . . . the case was sent out for a [Department of Corrections] diagnostic. That just doesn't happen.
"So I know [plea counsel] doesn't have a personal recollection of the case that happened, what, 16 years ago, thereabouts, but it appears to the court that there had to be some discussions, some discussions about some type of disposition. Diagnostics aren't done that often. I can't get past that.
"So I have to believe that there was some discussions regarding disposition.... Also the fact that . . . defendant does take the stand and says he doesn't know, he doesn't remember, he wouldn't have done it. But that strikes a little bit as selfserving now that we're here now. I need to think what happened then and what was advised of . . . defendant then.
"And there were just numerous instances of at least the facts that I have seen, besides the [plea] form, the [district attorney] advising him orally that he would be deported, that I don't believe . . . defendant has met his burden on this case and I'm going to deny his motion.
"There are extreme consequences."
IV. Appeal
Defendant timely appealed from the order denying his section 1473.7 motion.
DISCUSSION
I. Relevant Law
Under section 1473.7, subdivision (a)(1), "[a] person who is no longer in criminal custody may file a motion to vacate a conviction" on the ground that it "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."
To establish the legal invalidity of the conviction, the moving party must show, by a preponderance of the evidence, (1) "that he did not meaningfully understand the immigration consequences of his plea" and (2) "that his misunderstanding constituted prejudicial error." (People v. Espinoza (2023) 14 Cal.5th 311, 319; see also § 1473.7, subds. (a)(1), (e)(1).) Prejudicial error in this context "means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences." (People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar).)
II. Standard of Review
We independently review a trial court's order denying a section 1473.7 motion. (Vivar, supra, 11 Cal.5th at pp. 526-527.) We are "mindful that '"[i]ndependent review is not the equivalent of de novo review ...."' [Citations.]" (Id. at p. 527.) We exercise our independent judgment to determine whether the facts satisfy the rule of law but give deference to factual findings based on the trial court's personal observations of witnesses. (Id. at pp. 527528.) Indeed, "the independent review standard . . . accords substantial weight to the trial court's credibility findings ...." (Id. at p. 524.)
III. Analysis
Applying these legal principles, we conclude that defendant has not established by a preponderance of the evidence that he did not meaningfully understand the immigration consequences of his 2006 plea. Because defendant has not established error, we need not reach the parties' arguments regarding whether defendant established prejudice. (See People v. Williams (1997) 16 Cal.4th 153, 248 ["As there was no error, we need not consider defendant's arguments respecting prejudice"].)
The record reflects that defendant was advised in 2006 of his rights and of the consequences of his plea-including an unequivocal advisement that he would be deported. He was advised at the plea hearing on August 9, 2006, that if he was not a citizen, his conviction "will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization ...." (Italics added.) Defendant also initialed next to an advisement on his plea form that, if he was not a citizen, he "must expect [his] plea of guilty or no contest will result in [his] deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty." (Italics added.) And, during the section 1473.7 hearing, defendant testified that, at the time of the plea, English was his primary language and that he "understood it pretty thoroughly[.]"
Certainly, these advisements and defendant's English fluency do not preclude a finding that defendant did not meaningfully understand the immigration consequences of his plea. (See People v. Lopez (2021) 66 Cal.App.5th 561, 578 ["A proper advisement by the court does not foreclose the possibility of relief when counsel provides inaccurate or incomplete advice regarding immigration consequences"]; People v. Camacho (2019) 32 Cal.App.5th 998, 1011, fn. 8 [defendant who had been advised his plea "'will result' . . . in adverse immigration consequences, . . . presented sufficient evidence of his lack of understanding such that the [trial] court's advisement [could not] be taken as irrebuttable proof that [the] defendant likely would have entered his plea notwithstanding those consequences"].) But, even if not dispositive, they provide strong contemporaneous evidence that defendant did, in fact, understand the immigration consequences of his plea, including that he faced mandatory deportation. Defendant does not sufficiently counter this evidence.
In his filed declaration and live testimony, defendant asserted that plea counsel failed to go over the plea form with him and did not explain the negative immigration consequences of the plea. According to defendant, when he heard during the plea hearing that the plea could result in his deportation, plea counsel dismissed his concerns and "told [him] to just say 'okay.'" Plea counsel subsequently told defendant not to worry and that he would not be deported.
While plea counsel did not specifically recall defendant's case, he testified that he had underlined the immigration consequences on the plea form, which he did to highlight important issues. This is also consistent with what plea counsel testified was his routine practice: To "caution[]" and "advis[e]" his clients that they could be deported. Plea counsel denied that he would have ever told a client not to worry about immigration consequences and "just say 'yes[.]'" Rather, if a client ever raised a concern about immigration consequences, he would advise the client that taking the plea was optional and the charge could always be contested.
Faced with conflicting live testimony from defendant and plea counsel, the trial court made an adverse credibility finding against defendant, referring to his testimony as "self-serving." We are required to give "substantial weight to the trial court's credibility findings ...." (Vivar, supra, 11 Cal.5th at p. 524.)
Doing so-and considering the express warnings defendant was given, defendant's comprehension of English, plea counsel's routine practices, and the favorable sentence defendant received-we conclude that defendant has not met his burden of establishing error. (See People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664 (Abdelsalam) ["A defendant seeking to set aside a plea must do more than simply claim he did not understand the immigration consequences of the plea. The claim must be corroborated by evidence beyond the defendant's selfserving statements"].)
Defendant resists this conclusion with three arguments.
First, defendant asserts that the trial court erred by treating the generic immigration warnings defendant received on the plea form and at the plea hearing "as dispositive of whether [defendant] had established error under [section] 1473.7." We disagree. The court expressly stated that it was "balanc[ing]" various evidence it had been presented. Nothing in the record rebuts the presumption that the court was aware of and properly followed the established law in determining error under section 1473.7. (See Evid. Code, § 664; Abdelsalam, supra, 73 Cal.App.5th at p. 662 ["In the absence of evidence to the contrary, it is presumed the court was aware of and applied the proper burden of proof"].)
Second, defendant argues that the trial "court erred by failing to give any weight" to defendant's testimony, which he contends was corroborated by the lack of notes by plea counsel regarding immigration consequences. Defendant further asserts that the court did not make express or implied credibility determinations and that the court's reference to defendant's "self-serving" testimony is not entitled to deference because "the court engaged in no direct or meaningful examination of [defendant's] testimony."
We are not persuaded. The trial court was not required to provide a detailed explanation of its credibility findings or specify how each piece of evidence factored into its decisionmaking. In the absence of evidence to the contrary, we assume that the court followed the law and considered all admissible evidence. (Evid. Code, § 664.) Further, that the court did not ultimately rule in defendant's favor does not mean that the court failed to consider or give any weight to defendant's testimony.
Finally, defendant argues that the trial court assumed matters not in evidence-specifically that defendant was a high achiever because he attended a magnet school and that, in light of the section 1203.03 diagnostic report, some discussion and contemplation of the plea must have occurred. Defendant reads too much into extemporaneous statements by the court. Regarding defendant's attendance at a magnet school, the court expressly declined "to speculate" about its meaning. As for the diagnostic, the court did not state or imply that it bore on the issue of whether defendant meaningfully understood the immigration consequences of his plea. Moreover, we have based our independent review only on matters properly in evidence.
DISPOSITION
The order denying defendant's section 1473.7 motion is affirmed.
We concur: LUI, P. J., HOFFSTADT, J.