Opinion
A157268
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. LAURA WOOLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 59605734)
In 1996, defendant Laura Woolen pleaded no contest to committing a lewd and lascivious act upon a child (Pen. Code, § 288, subd. (a)) and committing a forcible lewd and lascivious act upon a child by a caretaker (§ 288, subd. (b)(2)). In 2013, the United States began deportation proceedings against her, which are continuing today. She appeals the denial of her motion to vacate her 1996 felony convictions under section 1473.7 due to alleged error affecting her ability to understand and accept the possible immigration consequences associated with her no contest plea. With some reluctance, we must affirm.
All further statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
A. Defendant's Background
Woolen is a 69-year-old citizen of Mexico who became a lawful permanent resident of the United States in or about 1992. She has continuously lived in the United States since 1992 and currently resides in Florida. Since her conviction, she has travelled back and forth from Mexico to the United States without difficulty for nearly two decades. After attempting to re-enter the United States in 2013, Woolen was detained and placed into deportation proceedings based on her 1996 felony convictions. Except for these two felony convictions, Woolen has led an otherwise law-abiding life.
According to the opening brief, Woolen is "currently married to a United States citizen . . . who is dependent upon her for the daily necessities of life." The record, however, indicates that she is in "a serious relationship" with a "handicapped" man who is dependent on her for his daily needs.
B. Underlying Offenses and No Contest Plea
The record of Woolen's no contest plea and the circumstances of her underlying offenses are less than clear. The 23-year span between Woolen's no contest plea and her motion to vacate under section 1473.7 resulted in the loss of records and transcripts, including police reports, preliminary hearing transcripts, and probation reports. Additionally, the plea hearing was not transcribed and the reporter's notes from that hearing have been destroyed. (See Gov. Code, §§ 68150-68153). Suffice it to say, in 1996 Woolen was charged with sexually abusing an eight-year-old girl for whom she was a caretaker.
On July 23, 1996, Woolen entered a no contest plea to violating section 288, subdivision (a) [lewd and lascivious act upon a child] and to violating section 288, subdivision (b)(2) [lewd and lascivious act upon a child by force by caretaker] as part of a plea agreement. Per that agreement, the district attorney agreed, in exchange for the no contest plea, that Woolen would be sentenced to a 120-day county jail term recommended to be served in home detention, followed by three years' felony probation. As part of her no contest plea, Woolen signed a written change of plea form in which she, among other things, waived certain rights. The form was also signed by Woolen's retained trial counsel, Patrick Clancy.
As relevant here, the plea form contained the following immigration advisement: "I understand that if I am not a citizen of the United States, conviction of a crime could result in my deportation, denial of my re-entry to the United States and denial of my application for citizenship." (Italics added.) Woolen initialed this paragraph. In addition to Woolen initialing this paragraph and signing the change of plea form, Clancy signed the form as well. In doing so, Clancy acknowledged that he was Woolen's attorney, he personally observed her initial and sign the form, and he concurred with the entry of Woolen's plea.
The minute order from the plea hearing noted the presence of a Spanish interpreter. The trial court sentenced Woolen according to the plea agreement. Woolen's probation was subject to various terms and conditions, including that she register as a sex offender pursuant to section 290. As part of this condition, Woolen was admonished that if she "moves to Mexico and then returns to California, she is to register within 30 days of her return." Woolen was further advised that upon completion of her 120-day sentence, she "may move to Mexico . . . . If she moves to Mexico, she is to report to Probation Department here in California every month and provide them with her current address."
C. Immigration Proceedings and Motion to Vacate
From the time of her convictions, Woolen travelled back and forth from Mexico to the United States without incident for approximately 17 years. However, in 2013, when attempting to return to her Florida home, she was arrested by the Department of Homeland Security and placed in removal proceedings. For the next five years, Woolen's immigration counsel in Florida tried without avail to obtain immigration relief for her. In August 2018, Woolen's immigration counsel advised her to seek post-conviction relief in California.
In December 2018, Woolen filed a motion to vacate her 1996 convictions pursuant to section 1473.7. In her motion, she argued trial counsel Clancy was constitutionally ineffective because he did not advise her of the immigration consequences of her plea. Along with her motion, Woolen submitted a declaration in which she asserted that neither Clancy nor the court advised her about the immigration consequences of her plea at the time and that, had she known of those consequences, she would have gone to trial because she was innocent. She explained that being an "immigrant caretaker . . . accused by a wealthy local family" she was in a "bad situation" as there was a chance the jury "might believe the little girl [.]" She further averred that she was "willing to accept the probation sentence and home detention to avoid the risk and expense of trial even though [she] was innocent because [she] was unaware" of the immigration consequences. Woolen stated that she did not ask Clancy about the possible immigration consequences because she had no idea there were any such consequences.
Due to her limited income and the significant expense of travelling from Florida to California, Woolen and her post-conviction attorney requested that she be allowed to appear through counsel. The trial court heard the matter on the papers.
Following argument by counsel, after reading the briefs and reviewing the defense exhibits, including the plea form and minute order, the trial court denied Woolen's motion to vacate her convictions. It found that the plea form indisputably advised Woolen of the possible adverse immigration consequences of deportation, denial of re-entry, and exclusion from citizenship. The trial court acknowledged that it was unclear whether the judge taking the plea orally advised Woolen of the immigration consequences. In any event, the trial court noted the caselaw was quite clear that the plea form itself could satisfy a court's obligation under section 1016.5. The trial court found that the flexible travel conditions in the probation order did not constitute a "green light" indicating that Woolen was "immigration safe." In support of this conclusion, the trial court noted that there was "no affirmative evidence that her attorney, the judge, probation officer, anyone told her that just because we don't have a problem with you moving . . . means that the feds can't come in and deport you. And, in fact, the form advises you that the feds can come in and deport you and deny reentry."
The trial court was not persuaded by Woolen's "self-serving" declaration that she would have gone to trial had she been properly advised about the immigration consequences of her plea. Given the severity of the charges against Woolen, the trial court remarked that the grant of probation was "quite unusual[,]" as was a 120-day sentence to be served not in custody but on home detention. The trial court further noted that "[n]ot every defendant who is facing a strong possibility of getting deported will spit in the eye of [a] 120[-]day [home detention] sentence offer when by going to trial they could get 10 years in prison. They might roll the dice, take their chances, do their time, and then live their life . . . in Mexico . . . or wherever it is" because it means "not doing 10 years of hard time."
The trial court concluded there was no legal error regarding the immigration consequences of Woolen's plea, and even if the record could establish such error, Woolen had not met her burden of establishing prejudice as the court was unconvinced that she would have rejected the plea and gone to trial.
II. DISCUSSION
Woolen argues the trial court should have granted section 1473.7 relief here because: 1) the trial court erred by denying her motion to vacate on the ground that compliance with section 1016.5 barred relief under section 1473.7; 2) her attorney was deficient in failing to adequately advise her of the immigration consequences; 3) she established prejudicial error as she would not have accepted the plea had she been properly advised; and 4) her plea was not knowing, intelligent, and voluntary since she was unaware of the adverse immigration consequences. A. Standard of Review and Applicable Law
When reviewing an order denying a section 1473.7 motion, "[w]e 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 [prejudicial error]." (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.)
Section 1473.7 authorizes a person who is no longer in criminal custody to move to vacate a "conviction or sentence. . . [¶] [w]here 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. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1).)
Thus, a party asserting error based on an attorney's erroneous advisement need not prove the elements of a claim for ineffective assistance of counsel. (See People v. Camacho (2019) 32 Cal.App.5th 998, 1008.) Rather, a defendant seeking relief under section 1473.7 must show "prejudicial error" which is "not limited to the Strickland test of prejudice, whether there was [a] reasonable probability of a different outcome in the original proceedings absent the error." (Camacho, at p. 1008.) The question is not whether the defendant would have received a more favorable outcome in the case overall or whether the defendant would have been convicted of the same crimes even if she had proceeded to trial. (Id. at pp. 1009-1012.) Instead, the focus is whether, if aware of its immigration consequences, the defendant would have rejected the plea. (Ibid.) To show prejudice, a defendant must establish by preponderant evidence that she would not have entered the plea had she known about the adverse immigration consequences. (Id. at p. 1011-1012.)
Strickland v. Washington (1984) 466 U.S. 668.
To determine whether a defendant would not have pled guilty, a court must examine the record for corroboration and consider the likelihood of success at trial, the potential consequences after a trial compared to the consequences flowing from the guilty plea, and the importance of immigration consequences to the defendant. (See Lee v. United States (2017) 582 U.S. ___, ___, [137 S.Ct. 1958, 1966-1967].) In this context, courts should also "look to contemporaneous evidence to substantiate a defendant's expressed preferences." (Id. at p. 1967 [petition to set aside guilty plea based on incorrect advice regarding immigration consequences pursuant to 28 U.S.C. § 2255]; see People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he [or she] would have pleaded but for his [or her] attorney's deficiencies." (Lee, supra, 582 U.S. at p. ___ .) B. Challenge to Trial Court Procedure
Woolen contends the trial court erred in denying her motion to vacate on the mistaken ground that her receipt of the statutory section 1016.5 advisement in her plea agreement barred relief under section 1473.7. The record, however, belies this claim of error. Rather, the trial court correctly noted the advisement in the plea form was sufficient to fulfill the statutory requirements of section 1016.5 and further verbal admonishment by the sentencing judge was not required. (People v. Araujo (2016) 243 Cal.App.4th 759, 762; People v. Ramirez (1999) 71 Cal.App.4th 519, 521 [" '[A] validly executed waiver form is a proper substitute for verbal admonishment by the trial court' "].)
People v. Patterson (2017) 2 Cal.5th 885, cited by Woolen, does not compel a different result. In Patterson, our high court reversed an order denying a motion to withdraw a guilty plea under section 1018 based solely on the trial court's advisements that the defendant " 'may' " suffer immigration consequences. (Patterson, at p. 889.) In contrast, here, the trial court did not hold that compliance with section 1016.5 barred Woolen from seeking to withdraw her no contest plea. Rather, the trial court examined the merits of Woolen's section 1473.7 motion to vacate her plea and determined that she failed to meet her burden of showing either legal error or prejudice. C. Claim of Deficient Performance
Woolen's sexual offenses constituted aggravated felonies that were deportable offenses under federal law. (8 U.S C. § 1227(a)(2)(A)(iii) ["Any alien who is convicted of an aggravated felony at any time after admission is deportable"]; 8 U.S.C. § 1101(a)(43)(A) [aggravated felony included "sexual abuse of a minor"].) Woolen argues Clancy's representation was deficient because he failed to research the actual immigration consequences of her plea and advise her that her plea would make her deportable.
Although defense counsel now have an affirmative duty to investigate and correctly advise a criminal defendant regarding the immigration consequences of a plea (and thus could be deemed constitutionally ineffective for failing to discharge that duty) (Padilla v. Kentucky (2010) 559 U.S. 356, 360 (Padilla)), no such duty existed at the time Woolen entered her plea in 1996. Back then, defense counsel had a more limited duty not to misadvise a defendant regarding the immigration consequences of a plea. (In re Resendiz (2001) 25 Cal.4th 230, 247, abrogated in part on other grounds in Padilla, at p. 370; People v. Soriano (1987) 194 Cal.App.3d 1470, 1481-1482 (Soriano).) Thus, Woolen's argument that her attorney's representation was deficient because he did not affirmatively research and advise her about the immigration consequences of her plea and sentence lacks a basis in the law applicable at the time of her plea.
Woolen offers two reasons why her attorney was required, even in 1996, to investigate and advise her regarding the immigration consequences of her plea. First, she cites the United States Supreme Court's decision in Padilla, supra, 559 U.S. 356. But Padilla was not decided until 2010, and the Supreme Court subsequently held that Padilla's expansion of the Sixth Amendment right to the effective assistance of counsel does not apply retroactively to defendants whose convictions were final before Padilla was decided. (Chaidez v. United States (2013) 568 U.S. 342, 344, 357-358 (Chaidez).)
Second, Woolen cites Soriano, supra, 194 Cal.App.3d 1470 and People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio) as authority for the proposition that California courts recognized a duty to research and advise criminal defendants regarding immigration consequences back in 1996. To be sure, Soriano and Barocio contain language that supports Woolen's position: Soriano criticized the defense attorney in that case for "not mak[ing] it her business to discover what impact [the defendant's] negotiated sentence would have on his deportability" and for not "adequately advis[ing]" the defendant "of the immigration consequences of his plea" (Soriano, at pp. 1480, 1482), and Barocio noted that Soriano, if "[c]onstrued broadly," "require[d] defense counsel to . . . research the specific immigration consequences of the alien defendant's guilty plea" (Barocio, at p. 107). But that was not Soriano's holding. Rather, Soriano held that defense counsel must research immigration consequences and provide advice when asked by a defendant about such consequences. (Soriano, at p. 1482.) As discussed, the obligation to affirmatively advise defendants of immigration consequences came years after Woolen's no contest plea with the United States Supreme Court's ruling in Padilla. (Padilla, supra, 559 U.S. at pp. 365, 369; Chaidez, supra, 568 U.S. at pp. 352-354.)
Because in 1996 Woolen's attorney was under no affirmative duty to investigate or provide advice regarding the immigration consequences that would flow from the probationary sentence Woolen actually received, his failure to do so was not deficient performance. Moreover, as Woolen acknowledges that she did not ask Clancy about the immigration consequences of her plea, any duties he had under Soriano were not triggered. People v. Vivar (2019) 43 Cal.App.5th 216 (Vivar), a recently decided case brought to our attention shortly before this case was argued, is not to the contrary. In that case, the defendant, unlike Woolen, told defense counsel that he was "very worried about possible deportation." (Id. at p. 222.) Under these circumstances, defense counsel's failure to advise Vivar about the immigration consequences of his plea constituted ineffective assistance. (Id. at pp. 225-226.) Nevertheless, the appellate court found no prejudice because Vivar failed to establish that had he been properly advised of the adverse immigration consequences, he would not have pled guilty. (Id. at pp. 228-230.) If anything, we read Vivar to cut against Woolen's position in this case. D. Claim of Prejudice
Even were we to find deficient performance by Woolen's attorney, her motion would still fail. No contemporaneous evidence corroborates Woolen's claim that she would not have entered a no contest plea had she known the immigration consequences. (Lee, supra, 582 U.S. at p. ___ .) The trial court did not abuse its discretion in implicitly giving little weight to Woolen's self-serving declaration that she would have gone to trial had she been properly advised of the immigration consequences of her plea. (In re Alvernaz (1992) 2 Cal.4th 924, 945 [petitioner's self-serving declaration insufficient in and of itself to establish prejudice].) Woolen avoided a possible 10-year prison sentence and received an incredibly lenient sentence of three years' probation and a 120-day term of home detention. As the trial court noted, this sentence was "quite unusual" given the severity of the charges.
In her declaration, Woolen avers that she took the plea deal even though she maintained her innocence "to avoid the possibility of going to prison" if she lost at trial. This admission—coupled with the fact that she did not ask Clancy about immigration consequences—suggests that immigration consequences were not of paramount importance to her in 1996. (Cf. United States v. Bonilla (9th Cir. 2011) 637 F.3d 980, 985 [defendant's wife asked investigator and attorney if defendant would be deported, demonstrating importance of immigration consequences to defendant].) That the probation order left open the possibility that Woolen could move to Mexico further suggests that, at least in 1996, remaining in the United States was not her primary objective. The record shows that, despite her professed innocence, Woolen was willing to enter a no contest plea in order to avoid the risk of going to prison. The primary objective of avoiding a prison sentence is reflected in the fact that she signed a form acknowledging that her no contest plea could result in deportation, denial of re-entry to the United States, and denial of citizenship.
Woolen insists that if she had known about the mandatory immigration consequences, she would have insisted on an immigration-neutral plea. Woolen's claim that such a disposition could have been negotiated is pure speculation without support in the record. Woolen's speculation that another disposition could have been negotiated " 'is not evidence, less still substantial evidence.' " (People v. Waidla (2000) 22 Cal.4th 690, 735.) Moreover, despite apparent conversations between Woolen's post-conviction attorney and Clancy, Woolen did not offer testimony or a declaration on behalf of the latter attorney. Woolen has not offered sufficient evidence of her insistence on obtaining an immigration-neutral plea or going to trial. (See Vivar, supra, 43 Cal.App.5th at pp. 229-230 [no prejudice where record contained sufficient evidence that defendant prioritized drug treatment over potential immigration-neutral plea].)
We are not unsympathetic to Woolen's plight; having lived in the United States for over two decades, deportation at this time, combined with her advanced age, presents extremely dire immigration consequences to her. However, the test for prejudice considers what the defendant would have done at the time of the plea had she been advised of the immigration consequences, not the subsequent consequences. (See People v. Martinez (2013) 57 Cal.4th 555, 564.) At the time of her no contest plea, Woolen had been in the United States just about four years; she was a 44-year-old immigrant who faced a hefty prison sentence if convicted. Over time, as federal immigration enforcement policy changed, the prospect of deportation for someone in Woolen's position no doubt grew more likely. The question here is whether anything in the record shows she was unwilling to take the risk that that might happen when she entered her plea.
All these years after the fact, unfortunately, we see no affirmative support in the record for Woolen's contention that she would have declined to do so. We are mindful that motions for relief based on alleged violations of immigration protections are almost always made years or even decades after the underlying criminal convictions. The passage of time in this case has not worked in Woolen's favor. While there is nothing to suggest a lack of diligence on her part, it remains her burden, as an appellant, to establish her claims of prejudicial error, based on the record on appeal and based on the facts, not speculation. (See, e.g., People v. Stephenson (1974) 10 Cal.3d 652, 661 [claims of error "must be a demonstrable reality and not a speculative matter"].) She has not carried her burden of establishing that her life situation in 1996 was such that she would have rejected the otherwise quite favorable terms of her plea bargain in order to avoid potential adverse immigration consequences in the future. E. Challenge to the Voluntariness of the Plea
Finally, Woolen argues her no contest plea should be vacated because she did not "meaningfully understand" the mandatory immigration consequences of her plea. She contends that because Clancy failed to tell her the "whole truth[,]" her plea was not knowing, intelligent, and voluntary.
Preliminarily, to the extent Woolen purports to challenge the constitutionality of her 1996 plea, her time for challenging the adequacy of her Boykin/Tahl advisements has long since passed. (See, e.g., People v. Cole (2001) 88 Cal.App.4th 850, 854; § 1237.5.) Moreover, in compliance with the then-existing law, the plea form expressly advised her she could be deported and/or denied re-entry if she was not a citizen of the United States. Nothing more was required.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Similarly, to the extent Woolen appears to argue alternately she could withdraw her plea under section 1018 for mistake, ignorance, or inadvertence, the time for making such a motion lapsed over two decades ago. (See § 1018 ["On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted"].)
III. DISPOSITION
The order denying Woolen's motion to vacate her 1996 no contest plea is affirmed.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.