Opinion
E071865
10-01-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHN G. UKPONG, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1404619) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, John G. Ukpong, pled no contest to assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) Defendant was sentenced to two years in prison. Four months after his conviction, the United States Department of Homeland Security (DHS) and United States Immigration and Customs Enforcement (ICE) took defendant into custody and began removal proceedings. Defendant subsequently filed a motion to withdraw his plea, which the trial court denied. Defendant appealed the denial of this motion.
All further statutory references are to the Penal Code.
On appeal, defendant argues he received ineffective assistance of counsel because his appointed counsel did not inform him of the immigration consequences of his plea. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts concerning defendant's underlying offense and preconviction events are taken from the police report and the declarations filed in support of and in opposition to defendant's motion to vacate. The parties stipulated that the police report and preliminary hearing transcript (which was not included in the record on appeal) formed the factual basis for defendant's plea.
On the evening of September 26, 2014, defendant and Jane Doe were at defendant's home. Around two or three o'clock during the morning of September 27, Doe decided she wanted to leave, but defendant refused to drive her home. Doe attempted to call someone to pick her up, but defendant took her cell phone.
Doe then attempted to get off of the bed, but defendant repeatedly shoved her down. Defendant began to strike Doe with both an open hand and closed fist. He also held her down by her throat so she could barely breathe. This struggle lasted 15 to 20 minutes and left bruises on Doe. Eventually defendant relented and Doe went to sit in a chair while he verbally berated her. At some point, Doe lay back down on the bed.
An hour or two later, Doe was lying on her stomach on the bed dressed in pants and a blouse. Defendant put his hands on her buttocks and attempted to pull her pants down. She grabbed the waist of her pants to try to prevent him from taking her pants off, but defendant eventually flipped her onto her back and was able to pull them off. Defendant forced Doe's legs apart, pulled off her underwear, and sexually penetrated her. Doe did not speak or otherwise resist after defendant penetrated her for fear of further violence. After defendant stopped his assault, Doe took photographs of her injuries.
Doe reported the incident to the police about a month later, on October 24, 2014.
On January 2, 2015, the San Bernardino County District Attorney charged defendant by information with forcible rape (§ 261, subd. (a)(2)) and infliction of corporal injury on a person in a dating relationship (§ 273.5, subd. (a)). Defendant proceed to trial by jury. On January 7, 2016, after hearing the People's case, defendant withdrew his not guilty plea and pled no contest to assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).)
Before going on the record to change his plea, defendant signed a change of plea form. This form required defendant to initial 21 separate paragraphs acknowledging that he understood the potential consequences of his plea. This included a 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 will result from a conviction of the offense(s) to which I plead guilty/no contest." Defendant also initialized a paragraph acknowledging "I have had sufficient time to consult with my attorney," and that "[m]y lawyer has explained everything on this Declaration to me, and I have had sufficient time to consider the meaning of each statement."
When taking the plea, the court asked defendant if he initialed every relevant paragraph of the plea form "after reading, understanding, and discussing each paragraph with [his] attorney?" Defendant responded "[y]es." The court then asked: "Did you understand everything on [the form]?" Defendant responded that he did. Defendant confirmed that he had gone over every portion of both the printed and handwritten portions of the form with his attorney. He also confirmed he had enough time to discuss his case with his attorney. Finally, the court asked defendant whether he understood that "if you are not a citizen of [the] United States, the consequences of conviction will include deportation, exclusion from admission to the United States, or denial of naturalization . . . ?" Defendant responded that he did understand. Based on this examination, the court accepted defendant's guilty plea. In exchange for his guilty plea, defendant was sentenced to two years in prison. With credit for time served the sentence was deemed served in full and defendant was released.
On May 3, 2016, defendant was detained by ICE and charged with being an aggravated felon (8 U.S.C. § 1227(a)(2)) and being convicted of a crime of violence carrying a sentence of greater than a year (8 U.S.C. § 1101(a)(43)). DHS and ICE began removal proceedings against defendant.
On October 2, 2018, defendant filed a motion seeking to vacate his conviction under section 1473.7. In support of this motion, defendant submitted a declaration on his own behalf. His sister also submitted an unsigned declaration, to which she attached, among other items, text messages between herself and defendant's trial attorney, Salvador S.
The People filed a written opposition to this motion. In support of their opposition, the People submitted a declaration from Salvador S.
According to Salvador S.'s declaration, he engaged in plea negotiations with the People prior to trial, eventually obtaining an offer to allow defendant to plead to felony false imprisonment. Salvador S. advised defendant to accept this bargain because his "research showed that it would not have adverse deportation consequences." Defendant rejected this plea bargain "because he was going to school to become a licensed vocational nurse . . . and did not want to have a felony conviction," and because he "was not worried about immigration consequences whatsoever." After trial commenced, this deal was no longer on the table. Instead, Salvador S. "tried to lessen the immigration consequences by negotiating for a non-domestic violence offense . . . and making sure that [defendant's] girlfriend was not named as the victim of the offense." Salvador S. "made sure [defendant] knew that his plea to assault . . . would make him deportable."
The court held a hearing on this motion on October 19, 2018. Defendant and his sister testified at the hearing. Defendant's testimony at the hearing was largely in accord with Salvador S.'s characterization of events. Defendant confirmed that at some point prior to trial the People offered to allow defendant to plead to felony false imprisonment. Defendant also confirmed that he rejected this deal because he was attempting to become a nurse and feared a felony conviction would prevent him from becoming certified. This was despite the fact that defendant understood a conviction for felony false imprisonment would not result in his deportation. After the People offered the assault plea, defendant asked his counsel whether this plea would result in deportation. Salvador S. responded that defendant had "'lost the chance'" for an immigration-neutral plea when he refused the false imprisonment plea bargain. However, Salvador S. told him that the new plea would "mitigate the affect [sic] of immigration consequences," in part because the plea would not require a domestic violence victim to be named. Defendant also admitted that he took the assault plea because after he heard the evidence against him, he believed that it showed he had committed a crime. Nevertheless, defendant claimed that Salvador S.'s advice led him to believe that pleading to assault would mean he had less than a 100 percent chance at deportation. Salvador S. never told defendant the plea would result in mandatory deportation.
Defendant confirmed that he read and understood the plea form and that the court advised him of the immigration consequences of the plea. But defendant claimed that when he asked Salvador S. about this, Salvador S. told him this was something the judge advised in every case.
Defendant's sister testified that the reason they hired Salvador S. was to avoid defendant's deportation. She also said that Salvador S. had informed them a plea to assault would help to mitigate immigration consequences.
Salvador S. was subpoenaed to testify but did not appear. The trial court determined that Salvador S.'s testimony was unnecessary because "everybody agrees what [Salvador S.] did. . . . [H]e was trying to lessen the immigration consequences." In particular, the court felt that Salvador S.'s testimony was unnecessary because "the bigger problem . . . is in the prejudice prong," and not necessarily in whether Salvador S. acted ineffectively.
After hearing the testimony and considering the evidence submitted in support of and in opposition to defendant's motion, the trial court denied defendant's motion. Defendant timely appealed.
III. DISCUSSION
Defendant argues his motion to vacate should have been granted because he was ineffectively assisted by his counsel, Salvador S. Specifically, defendant claims that Salvador S.'s assistance did not meet either the Sixth Amendment standard for assistance of counsel nor the lower standard under section 1473.7 because he failed to advise defendant of the near certainty that defendant's guilty plea would result in his deportation. We disagree. A. Standard of Review
Review of a motion to vacate a plea based on alleged ineffective assistance of counsel implicates a constitutional right and is therefore a mixed question of fact and law. (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.) Under these circumstances, "[w]e independently review the order denying the motion to vacate . . . ." (Ibid.) This standard requires that "[w]e 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." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.)
However, where a motion under section 1473.7 is based on statutory error or a deprivation of statutory rights, abuse of discretion is the appropriate standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 ["A decision to deny a motion to withdraw a guilty plea '"rests in the sound discretion of the trial court"' . . . ."].) As we discuss below, because defendant fails to establish that reversal is necessary under the less deferential mixed question of law and fact standard, it is unnecessary to review his claims under the abuse of discretion standard. B. Defendant Did Not Meet His Burden to Prove Ineffective Assistance of Counsel and Prejudicial Error Under Section 1473 .7
Section 1473.7, subdivision (a)(1) allows anyone not in criminal custody to file a motion to vacate a conviction if "[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 . . . ." (§ 1473.7, subd. (a)(1).) "Ineffective assistance of counsel . . . is the type of error that entitles the defendant to relief under section 1473.7." (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 75.)
"The Sixth Amendment guarantees a defendant the effective assistance of counsel at 'critical stages of a criminal proceeding,' including when he enters a guilty plea." (Lee v. United States (2017) ___ U.S. ___, ___ [137 S.Ct. 1958, 1964].) "'"In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating . . . that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.'"'" (People v. Salcido (2008) 44 Cal.4th 93, 170.) "'"If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice . . . ."'" (Ibid.)
The burden of proof the defendant must meet in order to establish his entitlement to relief under section 1473.7 is a preponderance of the evidence. (§ 1473.7, subd. (e)(1).)
1. Defendant Does Not Establish His Trial Counsel Did Not Provide Effective Assistance
Defendant argues he has proven his counsel's representation was deficient under section 1473.7 because his counsel did not affirmatively advise him that his plea would result in deportation. We disagree.
In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme Court held that criminal defense attorneys have an affirmative duty to advise their clients of the potential deportation consequences of any plea. (Id. at p. 374 ["[C]ounsel must inform her client whether his plea carries a risk of deportation."].) The court acknowledged that immigration law can be complex and that "[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." (Id. at p. 369.) "But when . . . federal immigration law specifies in 'succinct, clear, and explicit' terms that a criminal conviction will result in deportability . . . a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea." (People v. Patterson (2017) 2 Cal.5th 885, 898, citing Padilla v. Kentucky, supra, at pp. 368-369.)
The California Penal Code now explicitly incorporates the Supreme Court's decision in Padilla. In 2015, the Legislature enacted sections 1016.2 and 1016.3, which respectively state that "[i]t is the intent of the Legislature to codify Padilla v. Kentucky and related California case law . . . ," and that "[d]efense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition . . . ." (§§ 1016.2, subd. (h), 1016.3, subd. (a).)
Here, the law was and is clear that defendant's plea would subject him to mandatory removal. Defendant pled guilty to an "aggravated felony" under federal immigration law, namely, "a crime of violence . . . for which the term of imprisonment [is] at least one year." (See 8 U.S.C. § 1101(a)(43)(F).) "[A] noncitizen convicted of such an offense is subject to mandatory deportation." (Lee v. United States, supra, ___ U.S. at p. ___ , citing 8 U.S.C. § 1227(a)(2)(A)(iii).) Federal immigration law is thus sufficiently "succinct, clear and explicit," about the consequences of pleading to a violent assault with a two-year sentence.
Substantial contemporaneous evidence, including defendant's plea form and statements on the record, support the finding that defendant was properly advised that his plea would result in deportation. On defendant's plea form, he initialed a paragraph affirming that he "had sufficient time to consult with [his] attorney," and that his "lawyer . . . explained everything on this Declaration to [him], and [he] . . . had sufficient time to consider the meaning of each statement." When questioned by the court on the record, defendant reiterated that he had enough time to discuss his case with his lawyer and he had gone over every portion of both the printed and handwritten portions of the form with his attorney.
These contemporary, corroborating pieces of evidence thus support the notion that Salvador S. reviewed the entire plea form with defendant and advised him on the same, including reiterating the advisement that if defendant was "not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which," he pled. Even without more, this advisement succinctly and clearly explained that deportation would (not could or may) result from defendant's plea and conviction.
Defendant argues that a bare advisement by the court or on a plea form that immigration consequences will result from a plea is no substitute for advice from counsel. But that is not the circumstance here. In this case, there is substantial evidence to conclude that Salvador S. advised defendant that deportation would be a consequence of defendant's plea. That Salvador S. may have done so in the process of reviewing defendant's plea form with him does not change that Salvador S. gave him the proper advice in addition to the advisements by the court and on the plea form.
Moreover, Salvador S.'s declaration specifically attests that he "made sure [defendant] knew that his plea to assault . . . would make him deportable." This is consistent with defendant's account of events, in which Salvador S. informed him that an immigration-neutral plea deal was off the table and that the new plea merely mitigated, rather than foreclosed, immigration consequences. The parties also agree that Salvador S. affirmatively recommended taking an earlier plea offer because it would not have any immigration consequences, and that defendant rejected the offer anyway. These actions constitute substantial evidence to conclude that Salvador S. was aware of defendant's immigration status and advised him correctly that his plea would result in deportation.
Accordingly, defendant has not demonstrated that his trial counsel's representation damaged his "ability to meaningfully understand . . . or knowingly accept the actual or potential adverse immigration consequences of [his] plea," by a preponderance of the evidence. (§ 1473.7, subd. (a)(1).)
2. Any Error By Defense Counsel Was Not Prejudicial
Though we find that defendant does not meet his burden to show ineffective assistance of counsel, even "'"[i]f a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice . . . ."'" (People v. Salcido, supra, 44 Cal.4th at p. 170.) "To establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 78.) A defendant establishes prejudice where he shows that "'"it is 'reasonably probable' the defendant would not have pleaded guilty if properly advised."'" (People v. Martinez (2013) 57 Cal.4th 555, 562, quoting People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.)
"[T]he test for prejudice considers what the defendant would have done, not what the effect of that decision would have been . . . ." (People v. Martinez, supra, 57 Cal.4th at p. 564.) Indeed, a court can find it reasonably probable a defendant would have rejected a plea even if his only other option was a slim chance of victory at trial. (Lee v. United States, supra, ___ U.S. at p. ___ [finding prejudice where it was reasonably probable defendant "would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a 'Hail Mary' at trial."]; see also People v. Mejia (2019) 36 Cal.App.5th 859, 871 ["[A] 'prejudicial error' occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial . . .—had the person known that the guilty plea would result in mandatory and dire immigration consequences."].)
Because we review the trial court's application of the law de novo, it is not necessary to decide whether the trial court applied the wrong prejudice standard in reaching its decision. Nevertheless, we note that the trial court did appear to apply the correct standard, despite defendant's contentions otherwise. In deciding the motion, the trial court found "by a preponderance of the evidence that [defendant] was bound and determined to take this deal . . . that it was so critical to him after this evidence had been presented to sort of cut and run, that . . . even if [Salvador S.] did misadvise him a bit, it's hard to think that [defendant] would have done anything but cut and run even had he known." It also found explicitly that "by preponderance of the evidence . . . [defendant] . . . would have not continued in the trial even if . . . it had been explained." This is consistent with the standard for prejudice in this matter, which focuses on what the defendant would have done had he been properly advised. (People v. Martinez, supra, 57 Cal.4th at p. 564.) The trial court's determination that defendant likely would have "cut and run" even if he was fully advised of the consequences is an assessment of the defendant's actions and not an assessment of his chances at trial. Thus, it is clear that the trial court found that it was reasonably probable that defendant would have taken the plea even if he had been properly advised.
In order to satisfy his burden to prove prejudice, "the defendant must provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised. It is up to the trial court to determine whether the defendant's assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances." (People v. Martinez, supra, 57 Cal.4th at p. 565.) In determining whether a defendant meets this burden, "[c]ourts 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. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." (Lee v. United States, supra, ___ U.S. at p. ___ .)
Defendant does not satisfy his burden. The record contains sufficient evidence to conclude that defendant's decision to accept the plea was made with full knowledge of the immigration consequences of his plea and he nevertheless chose to accept the plea bargain.
Immigration consequences were not defendant's focus in determining whether or not he would proceed to trial. The parties agree defendant rejected an earlier plea offer that would have avoided immigration consequences because defendant was concerned about his career. In other words, this is the rare case in which there is a motion to vacate a conviction where defendant was offered and rejected a plea agreement that would have completely avoided any immigration consequences, and opted instead to proceed to trial on far more serious charges that would most certainly result in deportation if convicted. These actions demonstrate that immigration consequences were not defendant's primary consideration in accepting or rejecting any plea offer, and that further advice on this front was not reasonably probable to change his decisionmaking.
In fact, defendant only accepted the plea bargain and pled guilty to assault by means of force likely to produce great bodily injury after he heard the People's case and realized he risked conviction, a longer sentence, sex offender registration, and deportation for forcible rape. Defendant admits he took this plea because he felt that the People's case showed he had committed a crime. The trial court aptly noted that sometimes it is not possible to get an immigration and deportation free deal and the defendant "wanted no part of this trial after hearing the People's case, rightfully so probably." Under these circumstances, it is not reasonably probable that with different advice defendant would have continued in the ongoing trial and foregone the opportunity to plead guilty, receive time served, and avoid sex offender registration.
Both the complaint and information advised defendant that a conviction for forcible rape would require defendant to register as a sex offender pursuant to section 290.
Moreover, defendant admitted that Salvador S. informed him that he "'lost the chance'" at avoiding immigration consequences when he rejected the original plea offer. Defendant read and understood the plea form with his attorney, which included an advisement that "deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which I plead . . . ." The court gave him the same advisement and he acknowledged it on the record. Defendant proceeded fully aware of these consequences.
Thus, defendant has not proven by a preponderance of the evidence that he would have continued in trial if he were advised differently.
The only evidence defendant did not understand his plea and would not have taken the plea had he understood is his own declaration. However, "a defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." (In re Alvernaz (1992) 2 Cal.4th 924, 938.) Defendant points to no contemporaneous evidence in the record that corroborates the claims in his declaration. Indeed, much of the contemporaneous evidence, as well as defendant's own testimony, indicate that no amount of additional advice would have caused him to reject the plea.
Because defendant has not proven by a preponderance of the evidence that he was prejudiced by his counsel's alleged errors, he is not entitled to relief.
IV. DISPOSITION
The order denying defendant's section 1473.7 motion to vacate is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.