People v. BravoPeople v. Bravo
INTRODUCTION
On June 24, 1997, defendant Estaban Zarate Bravo pleaded guilty to and was convicted on a plea bargain agreement of: a felony violation of domestic violence (
On December 11, 2018, defendant filed a motion to vacate the judgment pursuant to
II
FACTUAL BACKGROUND
The record does not contain the facts underlying defendant‘s pleas and convictions. This background will focus on what procedural facts can be gleaned from the record surrounding defendant‘s claim that he was inadequately admonished as to the immigration consequences of his guilty plea during the plea bargain process, such that his plea agreement was not entered into willingly, intelligently, and voluntarily, to justify vacating the judgment.
Defendant is a native of Mexico and Spanish is his first language. He appeared in custody at a hearing on June 24, 1997, at which he pleaded guilty to both counts with the use of an interpreter. He was admonished as to his rights, and initialed acknowledgment on a form provided therefor.2 These rights included the right to a speedy trial; to face and cross-examine witnesses; to ask the court to compel witnesses to attend trial; against self-incrimination; and to be represented by a lawyer. He then initialed the statement that “I understand that when I enter a plea of guilty, I waive, or give up each of the rights as stated above.”
Immediately following that recitation and waiver, the form enumerates the “Consequences of Plea,” stating, ”In addition to the consequences discussed in open court, and on page two of this form, I am further aware that my guilty plea to a felony
The immediate advantage of his plea was that defendant was to be released from custody that same day so that he could return to his construction job without being fired and could therefore support his spouse and their child.3 Of more immediate importance,
Defendant now contends that at the time he executed the plea agreement, pleading guilty to
At the time he prepared his declaration, which he executed on November 19, 2018, he was under the belief that no copy of the plea agreement existed. The trial court found a copy in its files and provided notice and copies of the agreement to the parties, which is the source of the terms quoted above. Defendant, by counsel, then acknowledged that the admonishment had been given and that he had initialed and signed the appropriate blocks on the plea bargain form:
“[Defense Counsel]: [¶] . . .[¶] At the time that Mr. Bravo took the plea, it‘s our position that he entered the plea but he failed to understand the consequences or knowingly understand that the immigration consequences of a guilty plea would result in him not being able to adjust his status to a permanent resident at the time as it is today. [¶] He does recall, as I reviewed the plea form with Mr. Bravo outside in the hall, receiving that immigration admonishment. However, it is clear he—
“[The Court]: The one he claims he didn‘t receive in his declaration?
“[Defense Counsel]: Right. He—he now recalls it as I showed it to him that those are his initials. He doesn‘t really remember seeing it, but he did say that those were his initials.
“[The Court]: Also have his signature, which is the same one on the current declaration.
“[Defense Counsel]: Well, the main issue is that that may prevent us from going forward with a 1016.5 motion. However, it will still allow us to go forward on the 1473.3 motion. And with that one, our contention again is that he did not fully understand the consequences as he pled. [¶] And I will submit based on that, Your Honor, that it is not—it was not that Mr. Bravo was not given the proper admonishment, that it was going to reflect a harsh consequence to his immigration status and that‘s what‘s affected him right now.”
Defendant further contends that had he known these consequences, he would not have executed the plea agreement but would have relied on his defenses and gone to trial.
III
DISCUSSION
A. Standard of Review
To the extent that a defendant seeks review of the denial of a motion to vacate a plea based on violation of a constitutional right, such as ineffective assistance of counsel under the Sixth Amendment, such a violation would implicate a mixed question of law and fact and therefore we would independently review the denial. (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116; see People v. Vivar (2019) 43 Cal.App.5th 216, 224, review granted Mar. 25, 2020, S260270.4) Here, however, defendant explicitly eschews any claim of ineffective assistance of counsel. Although he relies on People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76, to argue an independent review or de novo standard of review, Ogunmowo addresses a mixed question of law and fact based on a claim of ineffective assistance of counsel that is absent here. Instead, defendant specifically relies simply on the statutory language of
B. Defendant‘s Claim
Defendant contends that his guilty pleas were not voluntary, knowing nor intelligent and that this court should grant his motion to vacate judgment pursuant to
At issue is whether, at his plea hearing on June 24, 1997, he was adequately advised of the immigration consequences of his plea of guilty to the charges of spousal abuse and child abuse. Because a claim such as defendant‘s may be brought without invoking ineffective assistance of counsel, he is not limited to having to prove prejudice under the Strickland v. Washington (1984) 466 U.S. 668 (Strickland) standard, which requires a showing that counsel‘s representation fell below an objective standard of reasonableness (id. at p. 688) and demonstrate prejudice with a showing that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different,” meaning “a probability sufficient to undermine
Whether based on one or both Penal Code sections, we find defendant‘s claim to be without merit and affirm the trial court.
C. The Trial Court‘s Rulings
As to defendant‘s argument under
The trial court, ruling on defendant‘s motion to vacate, found that, “The 1016.5 does fail. [¶] It‘s clear in the written advisement that Mr. Bravo initialed next to the applicable portions and signed the document, and the court minutes, which are attached to each of Mr. Bravo‘s motions as well as part of the court file, indicate that at the time Judge Thierbach took the plea, he found that he understood the constitutional rights, the
As to defendant‘s argument under
In this case, the trial court addressed both prongs of
Notwithstanding the trial court‘s findings, defendant again argues that his guilty plea was not voluntary, knowing, and intelligent because he failed to understand the immigration consequences, citing People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798 [“When, as here, the accused entered his plea of guilty without knowledge of or reason to suspect severe collateral consequences, the court could properly conclude that justice required the withdrawal of the plea on motion therefor. [Citation.]“]. Yet, the advisement required under
Defendant‘s only declaration in this record is the one he executed for his motion to vacate in superior court. There, however, defendant stated in absolute terms, “The Court and the Prosecution did not convey to me any immigration consequences attached to this plea. I was not admonished about the immigration consequences pursuant to
Much of defendant‘s focus is on his
However, it remains unclear whether Ruiz and other recent cases should be applied retroactively to plea bargain cases, like this one, that go back decades. Ruiz based its analysis in part on (People v. Patterson (2017) 2 Cal.5th 885 (Patterson).) Patterson, in turn, relied on the United States Supreme Court‘s decision in Padilla v. Kentucky (2010) 559 U.S. 356. As Justice Yegan observed in his dissent in Ruiz, “No California Supreme Court case says that Patterson is retroactive, but the rule articulated in Padilla, is not retroactive. (Chaidez v. United States (2013) 568 U.S. 342, 358.) So, why should Patterson be retroactive? I am ever faithful to the rule of Auto Equity Sales, Inc. vs. Superior Court (1962) 57 Cal.2d 450, 455, but Patterson does not resolve or even mention retroactivity. It declares a new procedural rule and I would not apply it retroactively.” (Ruiz, supra, 49 Cal.App.5th at pp. 1070-1071 [Yegan, J., dis. opn.].) We would further observe that Patterson is not even a
Defendant‘s declaration contains the only direct evidence presented as to whether he would have taken the plea in 1997 had he been aware of the immigration consequences he claims counsel never gave him. 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; see In re Hernandez (2019) 33 Cal.App.5th 530, 547 (Hernandez) [” ‘[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. [Citation.]’ “]; People v. Mejia (2019) 36 Cal.App.5th 859, 872 (Mejia) [“[i]n a postconviction setting, courts should not simply accept a defendant‘s statement of regret
Defendant points to no contemporaneous evidence in the record to independently corroborate the attestation in his declaration. (Hernandez, supra, 33 Cal.App.5th at p. 547.7) In fact, the sole contemporaneous evidence involved here is the plea bargain agreement and its advisement of rights, which the trial court produced after defendant declared that he had not been advised of the immigration consequences, that he raises here. His attestation that he had received no such admonition at all in his declaration was proven false by the presence of the plea bargain form and then by defendant‘s admission he had been so admonished.
Defendant could have provided contemporaneous evidence to support his claim that he had not been understandably admonished as to his immigration consequences. Such evidence could have included a declaration or testimony by his then defense counsel, David Ross, or the interpreter who signed the plea bargain form, Elias Uribe, or the hearing transcript from the June 24, 1997 hearing on his plea. He produced none of
Defendant‘s declaration does contain statements to be considered in the context of contemporaneous evidence. Chief among these are his assertions of his family in the United States and his need to support them: “At the time of this conviction hearing, I was working full-time in construction and I was learning many new carpentry skills. I had a young family to take care of that included my one-year old son . . . , his mother, my live-in girlfriend and she was caring for them on a full-time basis. I was the sole financial provider in the household. All of them depended on my income and my job. If I returned to work within the same week of my plea, I would not lose my full-time job for abandonment and I could resume paying the bills. [¶] . . . Additionally, because my bills
Aside from the trial court already finding the declaration not credible, these statements do not avail defendant. They simply emphasize that he elected to take the plea bargain to obtain release and return to his girlfriend and son and resume his job. There is nothing to substantiate his claim that had he known of the ultimate immigration consequences, he would have refused the plea bargain.9 In fact, although the statements are in the declaration, counsel did not address them in either the motion to vacate in the trial court, nor in the March 19, 2019 hearing, nor did defendant testify. (Mejia, supra, 36 Cal.App.5th at pp. 864-865 [defendant testified at
To the extent that defendant now appears to address his family status in 1997 in his opening brief on appeal, he states that the ultimate immigration consequences “manifested at a time when he had a 1-year old son, his child‘s dependent mother as a live-in girlfriend and a promising career in carpentry. Had he known the true
Accordingly, we find that the trial court did not abuse its discretion in discrediting defendant‘s declaration, nor his current argument that he did not understand the admonitions, in the face of the sole contemporaneous evidence—his initials and signature on the plea forms—that he did understand.
Defendant also claims error in the trial court‘s analysis of his
The trial judge stated, as quoted supra, that defendant raised two issues with regard to
Defendant claims he never raised actual innocence, but simply articulated his defenses in his declaration to show that had he been aware of the immigration consequences, he would not have taken the offered plea agreement but would have relied
Our review of the trial court‘s ruling is that it followed the language of section 1473.7 itself. Subdivision (a) provides two reasons that a person no longer in custody who seeks his conviction vacated may obtain relief. First, that 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.” Second, that “[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.” (
Defendant‘s claims are without merit.
IV
DISPOSITION
The judgment of the trial court is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
I concur:
McKINSTER
J.
Defendant Esteban Zarate Bravo was not advised that a crime to which he pled guilty carried the consequence of mandatory deportation. Nevertheless, he has not demonstrated prejudice as needed to vacate that conviction under Penal Code section 1473.7.1 The majority opinion therefore reaches the correct result, and I join the disposition. In my view, however, the majority‘s discussion obfuscates or is simply wrong about the section 1473.7 analysis in several respects, both in general and as applied to the record of this case. I therefore respectfully concur separately.
I
LEGAL BACKGROUND
Deportation is a mandatory consequence of a California guilty plea when the defendant pleads to a crime defined as an “aggravated felony” under federal immigration law. (See Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188 (Moncrieffe); Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1211 [“removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here“];
Those consequences follow a defendant‘s plea to an aggravated felony, but they do not accrue if the defendant pleads guilty to a crime that is not classified for special immigration treatment. Determining whether a California crime is a federal “aggravated felony” can be complicated because it demands that the state crime be “viewed in the abstract” to determine whether it is a “categorical match” for a federal offense “that serves as a point of comparison.” (Moncrieffe, supra, 569 U.S. at p. 190; Torres v. Lynch (2016) 136 S. Ct. 1619, 1623 [describing list of federal crimes that serve as points of
A decade ago, the United States Supreme Court recognized the significance of the consequences of a defendant‘s plea to a crime, such as an aggravated felony, by which he forfeits all defenses to deportation. Padilla v. Kentucky (2010) 559 U.S. 356, 360 held that the Sixth Amendment‘s guarantee of effective counsel requires lawyers to advise their clients if a guilty plea would make them “subject to automatic deportation.” The court recognized that immigration law had changed over the years such that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants.” (Padilla v. Kentucky at p. 364, fn. omitted.) Where a defendant faced deportation as a “presumptively mandatory” consequence of his plea (id. at p. 357) the court held that his counsel was ineffective in failing to advise him of that risk (id. at p. 374). The court noted that an informed counsel could work toward “avoiding a conviction for an offense that automatically triggers the removal consequence.” (Id. at p. 373.)
Our Legislature has codified Padilla‘s holding in our statutory law. Effective January 1, 2016, the Legislature enacted section 1016.2 as a part of legislation intended “to codify Padilla v. Kentucky and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.” (
Effective a year later, the Legislature enacted section 1473.7, which allowed out-of-custody defendants to file a motion to vacate their conviction because it was “legally invalid due to prejudicial error damaging the [defendant‘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.” (
For the first two years that section 1473.7 was in effect, California courts “uniformly assumed” that a defendant challenging a conviction under the section must meet the constitutional standards for demonstrating ineffective assistance of counsel. (People v. Camacho (2019) 32 Cal.App.5th 998, 1005.) That meant showing that counsel‘s performance fell below an objective standard of reasonableness based on norms prevailing at the time of the plea. (Ibid.)
Effective January 1, 2019, however, the Legislature amended section 1473.7 to “provide clarification to the courts.” (Stats. 2018, ch. 825, § 1, subd. (b).) It stated that section 1473.7 “shall be interpreted in the interests of justice and consistent with the
II
DISCUSSION
In 1997, defendant pled guilty to one crime that was a federal aggravated felony and one that was not. His conviction on a violation of section 273.5 (domestic violence) is classified as an aggravated felony under federal immigration law (United States v. Mata-Jimenez (9th Cir. 2019) 749 Fed. Appx. 664, 665), so it renders him subject to mandatory deportation and ineligible for discretionary relief. On the other hand, his conviction on section 273a (child cruelty) is not an aggravated felony (Ramirez v. Lynch (9th Cir. 2016) 810 F.3d 1127, 1138), and it alone would not make deportation mandatory.
In today‘s appeal, defendant claims that relief is warranted under section 1473.7 because he was not properly informed of the mandatory immigration consequences of his section 273.5 plea, and that he would have acted differently had he known.3
Cognizant of the legal background presented in section I above, I will discuss four areas of analysis where I differ from the majority opinion.
A. Standard of Review
The standard of review on the appeal from an order on a section 1473.7 motion is unsettled following the Legislature‘s 2019 amendments to that section. I think the better view is that those amendments do not alter the standard of review that existed before them, by which an appellate court independently reviews the trial court‘s ruling, rather than defers to it. (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1132-1133 [applying independent review in section 1473.7 appeal].)
The majority‘s choice to adopt an abuse of discretion standard (maj. opn., ante, at pp. 7-8) is defensible in theory. In my view, however, it is incongruous to have a court review independently a defendant‘s section 1473.7 argument predicated on ineffective assistance of counsel, and then switch to deferential review for a backup argument that the same assistance was legally invalid under similar, but statutory, standards. (Under any standard, of course, we defer to a trial court‘s credibility findings, if any.) It seems to me that if we are to independently review a section 1473.7 motion where it raises constitutional violations, we also should be charged with independent review of legal
B. Retroactivity
I am unaware of any authority that suggests that section 1473.7 cannot apply to past convictions; on its face, its only application is to allow a person to seek to vacate a past conviction by guilty plea. (
The majority nevertheless presents as a serious question whether the “new right” in section 1473.7 “should be applied retroactively to plea bargain cases.” (Maj. opn., ante, at pp. 13-15 [italics omitted].) After suggesting that retroactivity—an issue not raised by the parties—“remains unclear,” the majority concludes that it need not decide it, since defendant‘s appeal lacks merit anyway. (Id. at pp. 14-15.)
The majority here cannot be referring to the familiar arguments in many California cases about the retroactivity of statutes. Cases commonly must address whether a provision that is silent as to its retroactive effect should be applied to past adjudications. Here, however, there is no question that section 1473.7 is intended to apply to past convictions; that is all it does. There is no interpretive issue in this regard.
Instead, the majority apparently labels as “retroactivity” an argument that is considerably more eccentric: a claim that the Legislature lacks the power to affect prior convictions. It may be difficult to find support for this position, but if the majority wishes to sua sponte suggest the idea, it ought not be so artful. It should be clear about
The main case that the majority cites, People v. Ruiz (2020) 49 Cal.App.5th 1061, correctly applies section 1473.7 to permit a defendant to challenge an old conviction where she was not informed that the conviction made her deportation mandatory. The majority relies on the dissent in that case, which lacks the force of law and, at least in part, stated that it simply does not like what the Legislature did by enacting section 1473.7. (People v. Ruiz, supra, at p. 1071 [Yegan, J., dissenting] [“The sanctity of a 30-year-old superior court final judgment should not be sacrificed. . . . The Legislature should not alter the timeliness rule.“].)
The majority‘s misleading characterization of its discussion of an open issue of “retroactivity” is concerning, as the discussion suggests, without quite deciding, an unsupported, novel claim about the limits of legislative authority that was not raised by any party and that, even in the majority‘s analysis, has no bearing on the disposition of this appeal. In my view, the majority‘s discussion of “retroactivity” is simply wrong.
C. The Error in Advisement
Section 1473.7 “allows a noncitizen defendant to vacate a guilty plea if he or she ‘did not understand the true implications of the plea deal before accepting it and where the defendant suffered prejudice. The key to the statute is the mindset of the defendant and what he or she understood—or didn‘t understand—at the time the plea was taken, and not whether their attorney technically provided [ineffective assistance of counsel].‘”
When defendant pled guilty to a violation of section 273.5, he admitted a federal aggravated felony that carried the consequence of mandatory deportation. The advisement on his plea form, however, was much more equivocal. He was told through the generic advisement-of-rights form that if he was not a citizen of the United States, his conviction “may” subject him to deportation. As our Supreme Court recognized, this advisement is not adequate. (People v. Patterson, supra, 2 Cal.5th at pp. 895-896 [“the standard section 1016.5 advisement that a criminal conviction ‘may’ have adverse immigration consequences ‘cannot be taken as placing [the defendant] on notice that, owing to his particular circumstances, he faces an actual risk of suffering such.‘“]; see
In this regard, the trial court erred in its reasoning. The court denied defendant‘s section 1473.7 claim solely because defendant had initialed the advisement on the advisement form. (Maj. opn, supra, at p. 10.) Thus, the trial court found that a section 1016.5 advisement that defendant “may” be subject to deportation sufficed, even though defendant faced not just the possibility of deportation, but mandatory deportation. The People do not defend this reasoning on appeal, and they do not argue that there was no error defendant‘s advisement at the time of the plea. Instead, the People simply argue that any error was not prejudicial.
The majority opinion, however, fails to acknowledge the trial court‘s error. The majority also does not acknowledge that the People have advanced no argument that defendant was adequately advised. Instead, the opinion relegates to a footnote the established principle that a “may” advisement is not adequate for those facing mandatory deportation. (Maj. opn., ante, at p. 11, fn. 6.) The footnote then asserts that defendant has not “met the standard to support a claim that he was not so advised,” asserting that this will be discussed later. (Ibid.) What the majority concludes on the matter later seems to be this: “the trial court did not abuse its discretion in discrediting defendant‘s
There are at least four problems with the majority‘s reasoning here. One is that the trial court never determined that defendant was advised of the mandatory deportation consequences of his plea. It only found (erroneously) that the advisement on the plea form was adequate to advise him. As to whether defendant was advised—beyond section 1016.5—that his guilty plea carried mandatory deportation consequences, there is no finding by the trial court to defer to, even assuming deferential review is the correct standard (as discussed above, I do not believe it is).
A second problem is the trial court did not generally “discredit[]” defendant‘s declaration, as the majority puts it. The trial court found that defendant was in fact informed of the immigration consequences of his guilty plea, based solely on the advisement form. But the trial court did not even mention defendant‘s declaration in its brief ruling, quoted entirely by the majority. (Maj. opn., ante, at p. 10.) There is no reason for us to conclude that the trial court “found defendant‘s declaration not credible” (maj. opn., ante, at p. 13; accord, id. at p. 18), rather than simply finding defendant was wrong about whether he had been given a section 1016.5 admonition.
Third, even if a defendant wrongly declared—long after his guilty plea—that he not had been given the section 1016.5 admonition through the advisement form, I do not believe that alone, without more, would be an appropriate basis for discarding his declaration in its entirety as uncredible. Such a mistake could equally well be a lack of
Fourth, even before a written copy of his plea agreement was located, defendant in fact acknowledged that he was given a written advisement of immigration consequences, rather than denying it as the majority intimates. Defendant in his declaration stated that nobody at the hearing “issued or explained the PC § 1016.5 admonition. None of the attorneys instructed the interpreter to explain any of these consequences to me in Spanish. He did not explain the clause in the written plea, presented in English and in legal terminology, that was meant to inform me of these consequences.” (Italics added.) Thus, even before the plea agreement was located—and apparently relying on his memory of proceedings two decades earlier—defendant declared that he had been given a written advisement of immigration consequences, simply asserting that the English was not explained to him at the hearing or otherwise. In my view, this acknowledgment that there was a written immigration advisement, even absent proof of it, is at least somewhat to defendant‘s credit. Once the plea form was found, counsel represented that defendant did not remember the form, but acknowledged that his initials were on it. (Maj. opn., ante, at p. 6.) These events do not warrant the characterization that the majority gives them. (See, e.g., maj. opn., ante, at p. 12 [“defendant reversed his declaration attestation and admitted he had been admonished“].)
D. Prejudice
To receive relief under section 1473.7, is not enough for a defendant to show that he did not understand the mandatory deportation consequences of the charge to which he pled guilty. He must convince the trial court that it is “reasonably probable” that “if properly advised, [he or she] would have rejected an existing plea offer in the hope or expectation that he or she might thereby negotiate a different bargain, or, failing in that, go to trial.” (People v. Martinez (2013) 57 Cal.4th 555, 569, 567 [standard for section 1016.5].)
The majority‘s repeated emphasis on the need for “contemporaneous evidence” could be misleading to the extent it implies a need to exhume evidence that existed at the time of the plea. There may be no such evidence where the inquiry is counterfactual. Rather, to evaluate prejudice a court needs evidence about the defendant, prosecution, and case at the time of the plea.
It would be significant if we could determine that the parties likely could have agreed to an immigration-neutral plea; that is, one that did not carry mandatory deportation as a consequence. (See
Thus, to demonstrate prejudice due to the possibility of an immigration-neutral plea disposition, defendant might have addressed such questions as the following. How would the prosecution have responded if, at the time of the plea, defendant had offered to plead to section 273a only, with the same total sentence that he received in this case? What about two counts of 273a with that sentence? What about a plea to felony spousal battery in violation of section 243, subdivision (e), instead of his section 273.5 plea?5 What if he had offered to plead to any of these charges, communicating that he would go to trial on section 273.5 only? Could he have avoided mandatory deportation in this way?
Defendant did not introduce evidence that bore on such questions in trial court. Doing so might, for example, involve developing evidence about the pleading practices at the time from the prosecutor or defense attorney who handled the case or, instead, contemporaries of theirs. Instead, defendant simply asserted in his declaration that his attorney did not “explore any immigration neutral charges,” though it is not even clear how defendant would know that. On this dimension of the prejudice
Moreover, defendant‘s declaration emphasizes that his priority at the time was to get out of jail as quickly as possible to return to his job and support his family. Although defendant has argued generally that such considerations would have been outweighed by understanding the immigration consequences of his conviction, his declaration does not expressly discuss how the costs of rejecting the plea—the potential sentence he faced, his ability or lack thereof to make alternative arrangements for his family, and so on—would have factored into his analysis. In my view, to make the required showing, a defendant needs not only to recite the benefits of the rejecting the plea offer, but also to grapple with the potential costs of doing so. (See Martinez, supra, 57 Cal.4th at p. 568.) A court would need to evaluate the credibility of that sort of testimony to make the difficult counterfactual determination a section 1473.7 motion presents.
To determine that it is reasonably probable that defendant would have rejected the plea offer, a court would need to consider not only defendant‘s ties to the United States and his family situation, but to consider them in light of the consequences of his rejecting the plea and proceeding to trial. Without evidence of the probability of an alternate disposition, and without evidence of both the negative and positive consequences of the plea and how the defendant would have weighed them, a defendant cannot support a showing that it is reasonably probable that, if properly advised, he would have rejected the section 273.5 plea offer “in the hope or expectation that he or she might thereby
On the record we have, defendant has shown error, but not prejudicial error.
RAPHAEL
J.