Opinion
E077416
07-07-2023
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO HERNANDEZ, Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Adrian R. Contreras, Melissa A. Mandel and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED.
Appeal from the Superior Court of San Bernardino County. Super. Ct. No. FWV1003124 Daniel W. Detienne, Judge.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Adrian R. Contreras, Melissa A. Mandel and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
In 2010, defendant and appellant Eduardo Hernandez pled guilty to carrying a concealed weapon that was stolen (former Pen. Code, § 12025, subd. (a), count 1) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 2), both as misdemeanors (Pen. Code, § 17, subd. (b)). In 2020, he filed a motion pursuant to Penal Code section 1473.7 to withdraw his plea and vacate his convictions on the grounds that his attorney failed to investigate the immigration consequences of his plea, failed to inform him of the actual immigration consequences of his plea, and failed to seek an immigration-safe plea. The trial court denied the motion.
All further statutory references will be to the Penal Code unless otherwise indicated.
Effective in 2012, the Legislature renumbered this statute as section 25400.
Defendant appealed, contending that he did not understand the immigration consequences of his plea. On January 11, 2023, we affirmed the trial court's denial of his section 1473.7 motion to vacate his convictions.
On March 29, 2023, the California Supreme Court transferred the case back to this court with directions to vacate our decision and reconsider the cause in light of People v. Espinoza (2023) 14 Cal.5th 311 (Espinoza). On April 5, 2023, we ordered our decision vacated and set a briefing schedule.
Defendant now contends Espinoza mandates reversal of the denial of his motion. The People argue that Espinoza is distinguishable and does not change the outcome of this case. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report. We note the minute order only indicates the court found that defendant's plea was "based on fact," but did not state a specific factual basis for the plea. We further note the clerk of the San Bernardino County Superior Court was unable to ascertain the identity of the court reporter at the plea hearing; thus, the reporter's transcript from the plea hearing was not available.
Police officers responded to a report of someone hearing gunshots in a residential neighborhood in Ontario. They searched the neighborhood and found defendant standing next to a fence. They asked him to take his hands out of his pockets and approach them. Defendant walked toward the officers, but momentarily sidestepped and hid behind a tree, removed something from his pants, and then resumed approaching the officers. The officers detained him. They searched near the tree and found a handgun with a magazine inside of it. Even though the ground was wet from the prior rain, the gun was mostly dry. The officers arrested defendant and transported him to the police station. Upon booking him, an officer took everything out of defendant's pockets. As the officer grabbed defendant's wallet, he felt something fall out of it. The officer reached back into his pocket and retrieved a plastic baggy that contained six grams of methamphetamine. A records search revealed the gun was a .38-caliber semiautomatic firearm that had been reported stolen over 10 years earlier.
On December 12, 2010, defendant was charged by felony complaint with carrying a concealed weapon that was stolen (former Pen. Code, § 12025, subd. (a), count 1) and possession of a controlled substance (Health &Saf. Code, § 11377, subd. (a), count 2).
On December 28, 2010, defendant entered a plea agreement and pled guilty to counts 1 and 2, which were reduced to misdemeanors pursuant to section 17, subdivision (b). Defendant initialed the box next to the statement: "I understand that if I am not a United States citizen, my plea could result in my deportation, exclusion from future admission to the United States, or denial of naturalization under the laws of the United States." Defendant also initialed the box next to the statement: "I have personally initialed each of the foregoing boxes and I understand each and every one of the rights outlined, and I hereby waive or give up each of them in order to enter my guilty/nolo contendere plea to the above charge(s) and admission(s). No one has used any force or threat against me or anyone close to me in order to make me enter this plea. I am not under the influence of any substance that impacts my ability to understand or waive my rights. I am entering this plea or authorizing my attorney to enter this plea on my behalf either because I am guilty and for no other reason or because the plea is result of pleabargaining." Defendant signed his name on the plea form underneath that statement. He also signed his name under a paragraph which stated, in part: "I consent and agree to the terms of the PLEA BARGAIN and to the entry of same in the minutes of said court, and acknowledge receipt of a copy of this document, . . ." An interpreter signed the agreement, under penalty of perjury, stating that she read the entire agreement to defendant in Spanish.
Defendant's plea counsel also signed the form beneath the statement: "I am the attorney for the defendant, and I have explained to the defendant each of his/her rights, the nature of and defenses to the charge(s), and the consequences of his/her guilty/nolo contendere plea and admission. I personally observed him/her to read, initial, date and sign this document. I consent to the entry of his/her plea and admission." The judge signed the findings, which stated: "1. Defendant and/or his/her attorney appeared in open Court and entered this plea and admission. [¶] 2. Defendant understands the nature of the charge(s) and the consequences of his/her plea and admission. [¶] 3. Defendant has knowingly, intelligently, expressly and voluntarily waived the rights as set forth above. [¶] 4. There is a factual and/or plea bargain basis for the plea."
At the plea hearing on December 28, 2010, defendant pled guilty to counts 1 and 2 as misdemeanors. The minute order indicates the court found that defendant understood the charges, the possible penalties, the rights against self-incrimination, to confront and cross-examine witnesses, to a public and speedy trial, to a jury trial, to have an attorney present at all stages of the proceedings, and "to the Public Defender if indigent and to the compulsory process of the court to subpoena witnesses." The court also found the plea was based on fact. Pursuant to the plea agreement, the court placed defendant on probation for three years under specified terms, including 97 days in county jail.
On March 19, 2021, defendant filed a motion to vacate his convictions pursuant to section 1473.7. He asserted that he qualified for relief because his plea counsel rendered ineffective assistance of counsel (IAC) since he failed to investigate and negotiate an immigration-neutral plea, and improperly advised him of the immigration consequences of his plea. Defendant further argued that even if his counsel's performance did not rise to the level of IAC, he was still entitled to vacate his convictions because "counsel's performance resulted in his failure to meaningfully understand, defend against, or knowingly accept the immigration consequences of a conviction." Defendant claimed he had no idea his convictions subjected him to removal and that remaining in the United States was very important to him since his family lived here, and he had been here for years. He claimed "he did not understand much of what was told to him in court" because he had just graduated from high school, he had cognitive limitations, there was a language barrier, and because the information given to him was complex. Defendant further argued he was prejudiced by his counsel's representation since he would not have accepted a plea to a violation of Health and Safety Code section 11377 had he known it would lead to deportation, and had he known, he "would have made a different choice and even agreed to a longer jail sentence." Defendant stated that following his convictions, he was ordered removed on March 21, 2011. However, on January 6, 2016, the Honorable Judge Jesus G. Bernal of the United States District Court for the Central District of California found that he was unlawfully ordered removed.
In support of the motion, defendant submitted a declaration stating he had lived in the United States since he was seven years old, and it was just him, his mother, and his brother; his stepfather came a few months later. He said his stepfather and mother were together when they were in Mexico, and the stepfather was very abusive toward him and his mother. His stepfather often let him starve and would leave him bruised from beating him. Defendant said he was sexually abused and raped by his stepfather's brother several times in Mexico. Defendant attended elementary school, middle school, and graduated from high school here, and he received special education services during his school years due to a learning disability. While in middle school, he and his girlfriend at the time had a son. Although he and his girlfriend separated, defendant "remained supportive" of his son, who was 14 years old.
Defendant stated that in 2010, he was arrested for carrying a concealed weapon and possession of a controlled substance and pled not guilty. The court appointed him a public defender, and he pled guilty based on his attorney's advice. Defendant stated his immigration status was never discussed, he was never asked about it, his attorney never informed him of any potential consequences his guilty plea would have on his legal status, and he was never presented with any possible alternatives or informed of immigration-neutral pleas.
Defendant attached his plea counsel's case file notes to his motion. His counsel made a handwritten notation on the notes, stating: "[Defendant] says previously deported and undocumented."
Defendant stated that on or around 2013, he was deported and that when he returned to Mexico, he was kidnapped, beaten, and sexually assaulted. He was eventually let go but was threatened that if his kidnappers ever saw him again, they would kill him. Defendant further stated that around 2013, he met and married his current wife, who is a United States citizen. They had a daughter, who was three years old.
The prosecutor filed an opposition to defendant's motion to vacate. He made several arguments, including that the documents from the time of defendant's plea show that he was made fully aware that his plea would make him deportable. The prosecutor noted that since 2010, defendant had been charged with various other criminal offenses.
In 2015, he was convicted of illegally entering the United States after deportation, and the documents from that case showed that he had been deported several times. The prosecution further argued that defendant did not include a completed acknowledgment form from his plea counsel or show that his counsel was personally served; as such, his counsel could not be found ineffective. Furthermore, plea counsel's notes made it clear that he was aware of defendant's immigration status and that his immigration status was discussed. The prosecutor argued that there was no prejudice since defendant had no legal status, which is what made him deportable, rather than his convictions and his other criminal convictions would have made him deportable sooner or later. Defendant filed a reply brief to oppose the prosecutor's arguments.
On July 9, 2021, the court held a hearing on the motion. The court stated that it reviewed the moving and opposing papers, and it received into evidence the attachments, including defendant's declaration and the police report. Defendant testified on his own behalf. He testified that he entered the United States in 1999, when he was seven years old. He lived in Ontario with his mother, brother, and stepfather. Defendant said he went to school here and received special education because he had problems reading and understanding what happened in class. In 2007 when he was 14 years old, his girlfriend gave birth to their son.
Defendant testified that he got married in 2013 to his current wife, and they had a daughter. That same year, defendant was also deported. He testified that in Mexico, he was kidnapped, beaten, and sexually assaulted. Then he returned to the United States. Defendant testified that in 2015, he was convicted in federal court of illegally reentering the United States after being deported. In 2019, he admitted felony evading the police and reckless driving with alcohol.
Regarding the instant case, defendant said he did not recall speaking with defense counsel about his immigration status. He denied knowing that his conviction would be considered an aggravated felony for immigration purposes. Defendant said he did not recall defense counsel ever telling him about immigration-safe pleas. Defendant testified that had he known he was pleading to an aggravated felony, he would not have accepted the plea agreement and would have continued to fight his case or he would have served more time to avoid being deported. Defendant said that in 2010, all his family was in the United States, including his son, and that he had no ties to Mexico. He testified that he had been deported many times, and he kept coming back to the United States because his family was here. On cross-examination, defendant testified that he was undocumented, that he had been deported 11 or 12 times, and he was currently in deportation proceedings due to his undocumented status.
Pursuant to the plea agreement, defendant's convictions were reduced to misdemeanors under section 17, subdivision (b). "Under the Immigration and Nationality Act (8 U.S.C. § 1101 et seq.), '[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable' [citation], and any such deportable alien 'shall, upon the order of the Attorney General, be removed' [citation]." (People v. Patterson (2017) 2 Cal.5th 885, 895.)
The court found that defense counsel's case file notes contradicted defendant's testimony that he did not recall discussing immigration consequences with his counsel, since the notes showed the issue came up. The court found the notes did not affirmatively prove that defense counsel either misadvised defendant about immigration consequences or failed to advise him at all about those consequences. The court stated it needed some kind of objective evidence of that. It then noted that defendant initialed the box on the plea agreement regarding the adverse immigration consequences. The court found defendant likely would have been convicted had he gone to trial because the police found the drugs on his person, in his wallet. It also found there was no evidence of an immigration-safe disposition that was available to defendant. The court concluded that it did not see any error or prejudicial error and denied the motion to vacate.
DISCUSSION
The Trial Court Properly Denied Defendant's Motion
Defendant argues the court's denial of the motion to vacate his conviction should be reversed. He specifically argues that the court erred by not considering his declaration and testimony to be objective evidence and by "requiring evidence from plea counsel for a successful petition." Defendant further asserts that his failure to understand the immigration consequences of his plea was due to his cognitive disabilities, which he proved by his declaration and school records. He finally claims that, under Espinoza, the court erred in relying on the advisement of rights, waiver, and plea form, and that he proved prejudice under a totality of the circumstances. We conclude the court properly denied the motion.
A. Standard of Review
Our Supreme Court recently determined the standard of review for section 1473.7 motion proceedings. In People v. Vivar (2021) 11 Cal.5th 510, 526 (Vivar), the court endorsed the independent standard of review. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. (Id. at p. 527.) When courts engage in independent review, they should be mindful that independent review is not the equivalent of de novo review. (Ibid.) An appellate court may not simply second-guess factual findings that are based on the trial court's own observations. (Ibid.) Factual determinations that are based on the credibility of witnesses the superior court heard and observed are entitled to particular deference, even though courts reviewing such claims generally may reach a different conclusion from the trial court on an independent examination of the evidence, even where the evidence is conflicting. (Id. at pp. 527-528.) In other words, appellate courts should give particular deference to factual findings based on the trial court's personal observations of witnesses. (Ibid.) However, where the facts derive entirely from written declarations and other documents, "there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, '[t]he trial court and this court are in the same position in interpreting written declarations' when reviewing a cold record in a section 1473.7 proceeding. [Citation.] Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." (Id. at p. 528, fn. omitted.)
B. Defendant Has Failed to Establish He is Entitled to Relief
Section 1473.7, which became effective on January 1, 2017 (Stats. 2016, ch. 739), 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 conviction or sentence." (§ 1473.7, subd. (a)(1).) Thus, a defendant is required to demonstrate that he 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." (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75.) However, "[a] finding of legal invalidity, may, but need not include a finding of ineffective assistance of counsel." (§ 1473.7, subd. (a)(1).) In other words, a superior court can make a finding of legal invalidity "if the defendant simply proves by a preponderance of the evidence a '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.'" (People v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia).)
"[S]howing prejudicial error under section 1473.7, subdivision (a)(1) 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. When courts assess whether a petitioner has shown that reasonable probability, they consider the totality of the circumstances. [Citation.] Factors particularly relevant to this inquiry include the defendant's ties to the United States, the importance the defendant placed on avoiding deportation, the defendant's priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible." (Vivar, supra, 11 Cal.5th at pp. 529-530.)
"A defendant must provide '" 'objective evidence'"' to corroborate factual assertions. [Citation.] Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant's immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." (Espinoza, supra, 14 Cal.5th at p. 321; see Vivar, supra, 11 Cal.5th at pp. 530-531.)
1. Defendant Failed to Establish Error on His Counsel's Part
Defendant failed to meet his burden of establishing by a preponderance of the evidence that any prejudicial error on his counsel's part damaged his ability to understand, defend against, or knowingly accept the immigration consequences of his plea. (§ 1473, subds. (a)(1) &(e)(1).) 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.) "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. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." (Lee v. United States (2017) 137 S.Ct. 1958, 1967; see Mejia, supra, 36 Cal.App.5th at p. 872 ["[i]n a postconviction setting, courts should not simply accept a defendant's statement of regret regarding the plea, courts should also 'look to contemporaneous evidence to substantiate a defendant's expressed preferences.' "].)
Defendant has presented no such objective, corroborating evidence here. The only relevant evidence he offers is his self-serving declaration and testimony. Generally, selfserving declarations lack trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 611.) In other words, we are not bound to give full credence to the statements in defendant's declaration because of his obvious interest in the outcome of the proceeding. (See People v. Beck (1961) 188 Cal.App.2d 549, 553.) We note that defendant offered no other contemporaneous evidence (apart from his own declaration) such as a declaration and/or testimony by his plea counsel. (See People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664 (Abdelsalam).)
Furthermore, we find defendant's statements in his declaration that his immigration status was never discussed, and he was never asked about it, to be not credible. The evidence showed that plea counsel made a handwritten notation in his case file notes, stating: "[Defendant] says previously deported and undocumented." Further, that notation appears on the page below the notation for defendant's arraignment and above where counsel wrote the terms of the plea agreement reached. It is reasonable to infer from this evidence that defense counsel was aware of defendant's immigration status and spoke to him about his immigration status before he pled guilty.
In his supplemental brief, defendant states that the first reason the trial court gave for denying his petition was that the court could not say, based on trial counsel's notation in the defense file, that he "got some kind of bad advice or wasn't advised at all," and the court "need[ed] some kind of objective evidence of that." Defendant argues the court erred by not considering his declaration and testimony to be objective evidence. We see no error. The record shows the court considered defendant's motion and declaration and listened to his testimony. However, the court was not required to simply accept defendant's statements as true. (See Mejia, supra, 36 Cal.App.5th at p. 872 ["[i]n a postconviction setting, courts should not simply accept a defendant's statement of regret regarding the plea"].) Rather, defendant was required to provide objective evidence to corroborate his assertions, such as "contemporaneous documentation of [his] immigration concerns or interactions with counsel." (Espinoza, supra, 14 Cal.5th at p. 321.) This he did not do.
Defendant further claims the court erred by "discounting the petition for lack of a declaration from plea counsel," and he asserts that he "cannot be faulted for failing to come up with other contemporaneous evidence." Defendant cites the portion of Espinoza where the court states that "[a] party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel," and "no specific kind of evidence is a prerequisite to relief." (Espinoza, supra, 14 Cal.5th at p. 325.) The record does not indicate that the court "required" a declaration from plea counsel or placed "undue emphasis on the lack of plea counsel declaration," as defendant claims. Rather, the court stated defendant said in his declaration and testimony that his attorney never talked to him about his immigration status or informed him of the immigration consequences of his plea. It then noted the contrary evidence of his plea counsel's written notation, which stated that defendant said he was previously deported and was undocumented. The court remarked, "I do have evidence in front of me that [defendant] brought it up, . . . What I don't have evidence of is what did the attorney do with that? We don't know if he said, Don't worry about it. Doesn't matter. Or no, you're safe with a misdemeanor...." Thus, the court simply pointed out the lack of evidence that plea counsel misadvised defendant about the immigration consequences of his plea; it did not state that a declaration from plea counsel was required.
Moreover, as the court in Espinoza affirmed, "the burden rests with the defendant to establish entitlement to relief" and "the inquiry under section 1473.7 requires consideration of the 'totality of the circumstances.'" (Espinoza, supra, 14 Cal.5th at p. 325.) Although defendant here was not required to submit a declaration from his plea counsel, he did have the burden of proof, and he presented no evidence that his plea counsel was unavailable. (§ 1473.7, subd. (e)(1).)
2. The Court Properly Relied on the Advisement of Rights, Waiver, and Plea Form
Defendant argues that, under Espinoza, the court erred in relying on the advisement of rights, waiver, and plea form to find that he understood the immigration consequences of the plea. However, Espinoza is distinguishable. In that case, the defendant received an advisement pursuant to section 1016.5 that his conviction" 'may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.'" (Espinoza, supra, 14 Cal.5th at p. 318.) The defendant was a lawful permanent resident, and he stated in his declaration that he" 'took the warning to be a general one that the court had to give everyone who pleads guilty.'" (Id. at pp. 317-318.) He did not think it applied to him since he was in the United States legally, and his attorney did not mention that his plea would have immigration consequences. (Ibid.) The Supreme Court found the defendant's declaration credible and concluded the record established that he did not meaningfully understand the immigration consequences of his plea. (Id. at p. 320.) Notably, the defendant's attorney used a Spanish-speaking assistant to communicate with the defendant, and the assistant told him to plead no contest and that" 'everything was going to be fine.'" (Ibid.) The Supreme Court found that the defendant relied on the reassurance of the assistant. (Ibid.)
The evidence in the instant case shows defendant was properly informed about the consequences of his plea and understood them. He initialed the box on the written plea agreement next to the statement: "I understand that if I am not a United States citizen, my plea could result in my deportation, exclusion from future admission to the United States, or denial of naturalization under the laws of the United States." Defendant also initialed the box next to the statement on the plea agreement: "I have personally initialed each of the foregoing boxes and I understand each and every one of the rights outlined, and I hereby waive or give up each of them in order to enter my guilty/nolo contendere plea to the above charge(s) and admission(s) . . . I am entering this plea or authorizing my attorney to enter this plea on my behalf either because I am guilty and for no other reason or because the plea is result of plea-bargaining." (Italics added.) Defendant signed his name on the plea form underneath that statement. An interpreter also signed the agreement, under penalty of perjury, stating that she read the entire agreement to defendant in Spanish.
Moreover, defense counsel signed the written plea agreement stating that he explained defendant's rights to him, and explained the nature of each charge, any possible defenses, and the effects and consequences of the plea. The trial court also signed the written plea agreement, finding defendant knowingly and intelligently waived and gave up his rights, with an understanding of the nature and consequence of the plea. Therefore, not only has defendant failed to present evidence to corroborate his claims that the immigration consequences of his plea were never discussed and he did not understand them, the evidence demonstrates the opposite-that defense counsel did explain the immigration consequences of the plea and defendant understood them. We observe that, in contrast to the defendant in Espinoza, defendant here did not state in his declaration that he took the advisement to be a general one that did not apply to him. He did not have legal status like the defendant in Espinoza, and he had no similar reason to believe the immigration warnings did not apply to him. (See Espinoza, supra, 14 Cal.5th at p. 318.)
Although defendant testified that he had been deported 11 or 12 times before and thus has become familiar with immigration laws and deportation proceedings, we do not know if those deportations occurred before or after the plea in this case.
Furthermore, unlike Espinoza, defendant does not allege, nor does the record disclose, any misadvice. Although he claimed in his declaration that he never discussed his immigration status with his counsel, the court apparently found him not credible, since there was evidence to the contrary. Thus, defendant's claim that the court erred in relying on the written advisements, under Espinoza, has no merit.
3. The Evidence of Defendant's Cognitive Disabilities Did Not Demonstrate That He Misunderstood the Immigration Consequences of his Plea
Defendant also claims his failure to understand the immigration consequences of his plea was due to his cognitive disabilities. However, he presented no objective evidence to corroborate such claim. He did present evidence that he had a learning disability and qualified for special education services, but such evidence just showed that he struggled academically. Although defendant cites to a mental health summary written in 2018, which reflects that he was diagnosed with Borderline Intellectual Functioning, the document simply reports that defendant was receiving services to continue living independently. This evidence did not establish that defendant did not understand the consequences of his plea in 2010. We additionally note the plea judge signed the written plea agreement, finding that defendant knowingly and intelligently waived and gave up his rights. Additionally, the court hearing the section 1473.7 motion observed defendant testify and did not note any intellectual deficiencies. (See ante, § B.2.)
4. Defendant Has Failed to Establish Prejudice
Even if the advisory form was inadequate or defendant did not understand the consequences of his plea, defendant has failed to establish that he was prejudiced. He contends that, under Espinoza, "prejudice is evident" under a totality of the circumstances analysis, in light of his lack of criminal convictions, the immigration expert's declaration that immigration-safe pleas existed, and his long-standing ties to the United States. He asserts that he would not have taken the plea since he came to the United States at a young age, was educated here, was trying to stay employed and support his pregnant girlfriend, and now he has a wife and young daughter. Defendant's declaration contains the only direct evidence presented as to whether he would have taken the plea had he been aware of the immigration consequences. 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.'" (People v. Bravo (2020) 58 Cal.App.5th 1161, 1171, overruled in part on other grounds, as stated in Vivar, supra, 11 Cal.5th at p. 526.) We note defendant stated in his declaration that remaining in the United States was "extremely important" to him, but he did not state that he told his plea counsel his priority was to remain here in order for his counsel to try to mitigate the consequences of the plea.
Defendant did state in his declaration that he would not have pled guilty if he knew he was going to be deported and he would have tried to negotiate another deal or gone to trial, and he would have been willing to accept more jail time. However, defendant failed to present evidence that at the time of the plea, he "had reason to believe an immigration-neutral negotiated disposition was possible." (Vivar, supra, 11 Cal.5th at p. 530.) He offered an expert declaration opining that alternative, nondeportable dispositions could have been negotiated. However, there was no indication in the record that the prosecution was willing to agree to an immigration-safe plea. (People v. Perez (2018) 19 Cal.App.5th 818, 830 (Perez); Abdelsalam, supra, 73 Cal.App.5th at p. 665.) Similarly, there is no suggestion that defendant's counsel did not attempt to negotiate such a disposition. (Perez, at p. 830.)
In addition, the evidence against defendant here was strong. It showed that the police responded to a call of gunshots and observed defendant in the area. When the police told him to walk over to them, he disposed of a gun behind a tree on his way over. The police also retrieved a plastic baggy that contained six grams of methamphetamine from his person. Defendant was charged with felony carrying of a concealed weapon that was stolen (former Pen. Code, § 12025, subd. (a)) and felony possession of a controlled substance (Health &Saf. Code, § 11377, subd. (a)), and he faced up to three years eight months in county jail. (See Pen. Code, § 25400; Health &Saf. Code, § 11377, subd. (a).) Yet, pursuant to the plea agreement, his charges were reduced to misdemeanors, and he was placed on probation, with only 97 days in county jail. Under these circumstances, it is not likely defendant would have risked going to trial, being convicted, and facing more time in custody, as well as the same immigration consequences.
Defendant claims his situation is analogous to that of the defendant in Espinoza, and that, under Espinoza, the prosecution "may have been open to an alternate plea." However, the defendant's circumstances in Espinoza were different, and "the inquiry under section 1473.7 requires consideration of the 'totality of the circumstances,' which necessarily involves case-by-case examination of the record." (Espinoza, supra, 14 Cal.5th at p. 325.) We observe the Attorney General in Espinoza opposed the defendant's motion to vacate his convictions in the proceedings below; however, the Attorney General subsequently reversed his position and agreed that the defendant's evidentiary showing established prejudicial error within the meaning of section 1473.7. (Espinoza, at p. 321.) The Supreme Court found it particularly significant that the Attorney General agreed that the defendant was entitled to relief. (Espinoza, at p. 325.) Here, the Attorney General does not agree that defendant is entitled to relief.
We conclude that Espinoza is distinguishable and does not change the outcome of this case. Defendant failed to meet his burden of establishing by a preponderance of the evidence that his plea counsel erred or that he (defendant) did not understand the immigration consequences of the plea. Because defendant failed to meet his burden of proof, the trial court properly denied the section 1473.7 motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CODRINGTON ACTING P. J. RAPHAEL J.