THE PEOPLE, Plaintiff and Respondent, v. MOHAMMED ABDELSALAM, Defendant and Appellant.
B307375
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed 1/6/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. KA115170)
Katharine Eileen Greenebaum, under appointment by the Court of Appeal for Defendant and Appellant.
Appellant Mohammed Abdelsalam pled guilty to making criminal threats and stipulated to a local custody commitment. The trial court orally told appellant that, as a result of the conviction, he would be deported. He was also advised in writing that he would be deported. His attorney reviewed the immigration consequences of the plea with appellant. Appellant orally acknowledged that he understood the immigration consequences of his plea, and stated that he would “wait for immigration.” Now that deportation proceedings have, as predicted, been initiated, appellant claims he never understood that he would be deported and should therefore be allowed to withdraw his plea. The trial court denied the motion to withdraw the plea, finding it unsupported by the record. We affirm.
FACTUAL BACKGROUND
In 2017, appellant came to the United States on a fiance visa. His fiancee, Mona, did not know that appellant planned to divorce her once he gained citizenship through the marriage. Mona discovered a record of appellant‘s plan on his phone, as well as evidence of appellant‘s relationships with other women. A message on appellant‘s phone said in part, “[l]et me just get ahold of the marriage certificate, as soon as I become legal, I can divorce her and she can go F herself.” Mona broke off their relationship and pending marriage, reported appellant‘s conduct to the Immigration and Customs Enforcement (ICE) fraud tip line, and notified the police. When Mona confronted appellant with what she learned, appellant was upset and fought physically with her over his phone, which she kept because it contained evidence of appellant‘s intended fraud. Appellant injured Mona, and she filed for and received a temporary restraining order that was served on appellant. Appellant violated the restraining order, burglarized Mona‘s house, threatened her, and assaulted Mona at her office after hiding in the trunk of her car with a knife.
Appellant was charged in a five-count information with injuring a cohabitant, receiving stolen property, two counts of disobeying a domestic relations
Appellant thereafter was detained by ICE, which initiated deportation proceedings. Appellant then filed a motion to vacate his plea. The initial motion was denied without appellant‘s presence or counsel, and without a hearing. This court reversed and remanded for a hearing. Counsel was appointed and filed a new motion to withdraw the plea. After argument, the motion was denied. On appeal, appellant argues he did not meaningfully understand the adverse immigration consequences of his plea.
A. Advisals During Taking of Plea
Appellant was assisted by an Arabic interpreter and by his counsel when he entered a change of plea. As part of the written plea agreement, appellant initialed next to the 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.” (Italics added.) Appellant also initialed next to the statements: “Prior to entering into this plea, I have had a full opportunity to discuss with my attorney the facts of my case, the elements of the charged offense(s) and the enhancement(s), and defenses that I may have, my constitutional rights and waiver of those rights, and the consequences of my plea,” and “I have no further questions of the Court or of counsel with regard to my plea(s) and admission(s) in this case.” Appellant signed the written plea agreement stating he had read and initialed each paragraph and discussed them with his attorney. His initials meant that he had read, understood and agreed with what was stated; that the nature of the charges and possible defenses to them and the effect of any special allegations and enhancements had been explained to him; and that he understood and waived his rights in order to enter into the plea.
Appellant‘s trial counsel signed the written agreement stating that she reviewed the form with her client; that she explained appellant‘s rights to appellant and answered all of his questions with regards to his rights and the plea; that she discussed the facts of the case with appellant and explained the
At the plea hearing, appellant‘s trial counsel was specifically asked by the trial court “have you had sufficient time to discuss immigration consequences with your client?” She replied “yes.” The trial court further asked, “do you believe your client understands the immigration consequences?” Trial counsel responded: “I explained them to him.” During the plea colloquy in court, appellant orally stated he had a chance to discuss the charges and any defense with his counsel; that he went over the plea form with counsel with the help of an interpreter; and that by initialing next to the statements on the plea agreement he was indicating he understood what was said. Appellant was also orally advised: “If you are not a citizen of the United States your plea will result in your deportation, denial of naturalization and amnesty, and exclusion from the United States.” (Italics added.) Appellant responded, “[y]es, I understand. But I‘m just going to wait for immigration.” Appellant further stated no one made any promises or threats to him to get him to enter into the plea, and that he entered into the plea freely and voluntarily. The trial court accepted the plea, finding appellant was entering into the plea freely and voluntarily, with an understanding of the nature and consequences of the plea.
B. Appellant‘s Motion to Withdraw His Plea
After deportation proceedings were initiated, appellant filed a motion to withdraw his plea pursuant to
Appellant also appended his declaration in which he declared he came into the United States to marry the victim and because he was afraid of being a Jehovah‘s Witness in Egypt, a country of Muslims; that once in the United States he gave the victim $94,000 as a down payment on her house and $11,000 in jewelry; that the victim made up stories and arrested him for a crime he knew nothing about; that the victim made up the charges to get him deported and to take the house and jewelry; that counsel never told appellant
DISCUSSION
I. Section 1473.7 and the Standard of Review
In 2019, the Legislature amended
“[S]howing prejudicial error under
Our Supreme Court recently determined the standard of review for
II. The Trial Court Is Presumed to Have Applied the Proper Standard of Proof
Appellant argues the trial court erred because “the court never stated what it believed appellant‘s burden was and what standard it had used to make its determination.” Appellant further argues the court did not use the preponderance of the evidence standard when determining whether appellant would have accepted the plea and whether appellant meaningfully understood the adverse immigration consequences of his plea.
Neither
Appellant cites to no case or statute that required the court to state that the burden of proof argued by both parties was, in fact, the standard utilized by the court. Appellant has failed to rebut the presumption that the court was aware of and properly followed the law.
III. Appellant Was Fully Advised of the Immigration Consequences of His Plea
Appellant argues trial counsel failed to advise him of the adverse immigration consequences of his plea, and that he did not meaningfully understand these consequences. The record does not support this contention.
During the taking of the plea, appellant was told orally and in writing that he will be deported. Not that he “might” be deported, or that he “could” be deported. Appellant‘s argument that he was not aware of the mandatory nature of the deportation flies in the face of the mandatory language used to describe the likelihood of deportation. Appellant is not entitled to simply ignore the admonitions he was given about the consequences of the plea, and argue that he unilaterally assumed he would be treated in direct contravention of what he was advised orally and in writing.
When asked if he understood that his plea “will result in your deportation,” appellant replied, “[y]es, I understand. I‘m just going to wait for immigration.” Appellant argues this response supports his contention that he did not understand. But he directly said he understood. And the comment that he would “wait for immigration” makes perfect sense. He was being sentenced to 364 days of custody, with custody credits of 220 days. He would need to finish serving the balance of his custody while waiting for “immigration”
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 self-serving statements. For example, in Camacho, the court found “defendant‘s claims of error were supported by his former attorney‘s undisputed testimony . . . that he misunderstood the potential immigration consequences . . . and he did not explore possible alternatives to pleading to an aggravated felony.” (Camacho, supra, 32 Cal.App.5th at p. 1009.) In Vivar, the Supreme Court noted that defendant presented counsel‘s e-mail correspondence and handwritten notes to establish that she did not “advise him as to the actual immigration consequences of a plea to the drug charge or any other plea.” (Vivar, supra, 11 Cal.5th at p. 519.) Our Supreme Court has stated that a defendant‘s claim that “he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.‘” (In re Resendiz (2001) 25 Cal.4th 230, 253 (disapproved on other grounds, Padilla v. Kentucky (2010) 559 U.S. 356, 370), quoting In re Alvernaz (1992) 2 Cal.4th 924, 938; see also, People v. Duarte (2000) 24 Cal.4th 603, 611; People v. Mejia (2019) 36 Cal.App.5th 859, 872; In re Hernandez (2019) 33 Cal.App.5th 530, 547.) “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 (2013) 57 Cal.4th 555, 565 (Martinez).)
Here, appellant offered no contemporaneous evidence such as an affidavit and/or testimony by trial counsel, or counsel‘s files, notes, or email correspondence. This is a case unlike Vivar, where the written advisal informed defendant he “may” be subject to deportation, and counsel stated “possible” deportation was discussed with defendant. (Vivar, supra, 11 Cal.5th at p. 519.) Appellant has presented no independent evidence that he was told anything other than that he would be deported.
The defendant in Vivar had lived in the United States for 40 years. (Vivar, supra, 11 Cal.5th at p. 530.) Appellant, by contrast, had just arrived here. And he was admitted on a fraudulently procured fiance visa, with an intent to gain citizenship by deception. In the short time he was here, appellant engaged in conduct that got him arrested for stalking, assaulting, burglarizing and threatening the person who had made his presence here possible. She wanted him deported. Deportation agents literally sat in on his preliminary hearing. He faced 10 years in prison, and now claims he would have somehow avoided deportation and rejected the plea agreement that resulted in only a few months of additional custody.3
Appellant has also 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 did not offer an expert declaration opining that alternative, nondeportable dispositions would have been available and acceptable to the prosecutor. (People v. Olvera (2018) 24 Cal.App.5th 1112, 1118.) His counsel now engages in speculation that he could have pled to burglary, without any citation from the record indicating that disposition would have been entertained by the prosecutor. And the issue is whether appellant had reason to believe a nondeportable disposition was available. He did not present a declaration from trial
The trial court also indicated the testimony at the preliminary hearing demonstrated the People could have filed additional and even more serious charges. Thus, if appellant had rejected the plea and insisted on a trial, although he “would for a period have retained a theoretical possibility of evading the conviction that rendered him deportable and excludable, it is equally true that a conviction following trial would have subjected him to the same immigration consequences.” (In re Resendiz, supra, 25 Cal.4th at p. 254; see also Martinez, supra 57 Cal.4th at p. 564 [whether a more favorable result was not reasonably probable is a factor for the trial court to consider when assessing the credibility of a defendant‘s claim that he would have rejected the plea bargain if properly advised].)
Appellant has not explained why anyone would reasonably have expected that ICE would forgo deportation proceedings against someone who admitted in writing they were temporarily getting married solely to obtain citizenship. Appellant has not shown that even if he had made an error in entering into the plea, it was “prejudicial” within the meaning of the statute.
At its core, this case comes down to answering the question: Can a defendant be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported? Our answer under the facts of this case is “no.” The trial court properly denied appellant‘s motion to vacate his conviction pursuant to
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.