THE PEOPLE, Plaintiff and Respondent, v. MOISES FERNANDO DIAZ, Defendant and Appellant.
B307726
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 3/9/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. A042932)
Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
FACTS AND PROCEDURAL HISTORY
The Robbery2
On March 11, 1989, Diaz and two other men robbed the victim, who was working alone as a cashier at a Shell gasoline station. The men lured the victim to the restroom where Diaz held a knife to his neck while the other men stole cash and items from the store. Just after the robbery, Diaz was arrested nearby with a knife in his pocket that had blood on the tip. The victim identified Diaz as the person who held a knife to his neck, and identified the knife as the weapon that Diaz held to his neck during the robbery.
At the plea colloquy on May 22, 1989, defense counsel relayed to the court that Diaz had “two requests.” First, Diaz wanted to counter the prosecution‘s offer of three years in prison, and “would be willing to plead to two years if he could get a forthwith [that day].” Second, if the counter-offer was not accepted, Diaz wanted to have bail reduced.
The trial court discussed the plea with Diaz and his counsel:
“The Court: . . . [W]e did discuss this matter and the District Attorney made an offer of mid term, plus one year, and I told you that if Mr. Diaz wanted to enter a plea today, based on the fact that he is only a little over 18 years old and has no serious adult record, I would sentence him to low term, plus the one year, which is three. [¶] That‘s bargain basement, Mr. Diaz. It isn‘t going to get any better. [¶] So if you don‘t want to take that, then, fine. We will just hold the matter on the trial calendar.
“The Defendant: What about half the time for the weapon, the commission of the crime, which will be six months?
“The Court: You got my bottom offer, Mr. Diaz. It is two plus one. It isn‘t going to get any better.”
Diaz inquired regarding the number of custody credits he had accrued. He next asked the court if the $17 that he had in his wallet when he was arrested would be returned to him. The court discussed the matter of the procedure that must be followed to have the $17 returned to Diaz with counsel at length. Diaz stated, “Somebody got the money, and I want it. Simple as that.”
The prosecutor next informed Diaz of his constitutional rights, which Diaz stated that he understood and wished to waive.
The prosecutor advised Diaz: “If you are not a citizen of the United States, your conviction in this case of this offense, which is a felony, could bring about your deportation or exclusion from the United States. You could be denied any right or privilege to enter this country lawfully or to become naturalized as a citizen. [¶] Of course, if you are now a citizen, this would not apply to you.”
The prosecutor asked if Diaz had been provided adequate time to speak with his attorney, and Diaz stated that he had.
Diaz pleaded no contest to second degree robbery (
Diaz was sentenced to three years in prison, consisting of the low term of two years for the robbery and one year for the personal use of a weapon enhancement.
At the sentencing hearing on June 6, 1989, the trial court initially sentenced Diaz to the mid-term of three years, plus a stayed one-year term for the weapon use enhancement. Diaz conferred with his attorney sotto voice. Diaz‘s attorney then stated that Diaz‘s plea was for the low term of two years, plus one year for the weapon use enhancement. The trial court responded that it was happy to impose either sentence, but that Diaz was “going to do three years either way.” Diaz stated that he wanted “it to be stated that it is the low term.” The trial court set aside its prior pronouncement and resentenced Diaz as requested. The trial court stated that if Diaz wished to withdraw his plea, the court would permit him to do so, “[a]nd then if you are convicted, you can do six [years].” Diaz asked if the court could run the one-year sentence concurrently with the two-year sentence. The trial court responded, “no.”
Motion to Withdraw the Plea
On May 21, 2020, Diaz moved to withdraw his plea pursuant to
The motion averred that Diaz was a citizen of Mexico. He was brought to the United States by his mother in 1976, when he was six years old. He became a temporary resident of the United States on September 21, 1987, at the age of 16. At the time his plea was taken, Diaz was 18 years old and held a temporary
At the May 22, 1989 plea hearing, Diaz was represented by Deputy Public Defender Norman Katsuo Tanaka, who is now deceased. Diaz declared that Tanaka never discussed the potential immigration consequences of his plea with him or told him that he was pleading to an aggravated felony that would subject him to mandatory deportation, exclusion, and permanent ineligibility for citizenship. Tanaka did not ask where he was born or inquire regarding Diaz‘s immigration status. Diaz would not have knowingly accepted a plea that jeopardized his ability to legally remain in the United States with his mother.
Although he was advised that the plea could have adverse immigration consequences if he was not a citizen, Diaz did not believe that the consequences would apply to him because he was not an undocumented immigrant. He believed that the advisement only applied to people who were in the country illegally.
As a result of pleading no contest to the robbery, Diaz was classified as an “aggravated felon.” Diaz‘s conviction of an aggravated felony rendered him permanently deportable, excludable, and ineligible for citizenship in the United States. When he was processed in prison, immigration officials advised him that although he had been convicted of a deportable offense, which also caused him to lose his temporary resident status, he would not be deported because he had been in the United States since childhood.
In 1995, Diaz moved to Oklahoma for a “fresh start.” In Oklahoma, he was employed consistently and started a family.
In 2013, Diaz was deported on the basis of his robbery conviction, but he illegally re-entered the United States within six months to care for his mother, who was ill. Diaz‘s mother died on August 25, 2014. Diaz remained in the United States after his mother‘s death. He started his own business in Oklahoma and purchased multiple properties, which he managed.
On May 12, 2020, Diaz was taken into custody by agents of the Immigration and Customs Enforcement Agency in Oklahoma. At the time he filed the motion, Diaz was facing imminent deportation. However, if the trial court granted the motion and vacated Diaz‘s plea, his immigration attorney could file a motion to reconsider in immigration court seeking rescission of his 2013 Administrative Removal Order. If Diaz no longer had an aggravated felony on his record, his attorney would have a chance to argue for legal readmission before an immigration judge.
Diaz agreed to immediately plead no contest to count 2, a violation of
Supplemental Brief in Support of the Motion to Vacate
On May 27, 2020, Diaz filed supplemental briefing in support of his motion to vacate. In the brief, Diaz first informed the court that he was in federal criminal custody for an alleged illegal re-entry, contrary to his previous statements. He argued that his motion was timely because the “clock on timeliness” did not begin to run until the amendments to
On June 18, 2020, Diaz filed a second supplemental brief in support of his motion to vacate. Diaz reported that his new immigration attorney explained that robbery with a sentence of less than 5 years was not an aggravated felony when Diaz pleaded no contest to the crime in 1989. The brief specifically retracted all arguments made with respect to that issue. Instead, Diaz asserted he became immediately deportable at the time of his plea because robbery was a crime of moral turpitude. Diaz‘s new immigration attorney had explained to him that, if immigration officials informed him that he would not be deported when released after his 1989 and 1993 incarcerations because he had entered the country as a child, it would have been based solely on prosecutorial discretion. Diaz had no legal basis for remaining in the United States.
Diaz declared that Tanaka never asked about his immigration status and never informed him that he would be pleading to a crime of moral turpitude, which would lead to his deportation. He argued that an advisement that he could face adverse immigration consequences was insufficient because deportation was not merely a possibility; it was mandatory.
Diaz‘s attached declaration stated that Tanaka represented him in the robbery case, and did not ask about his immigration status. Tanaka did not inform Diaz that pleading guilty would make him ineligible to obtain permanent resident status. Tanaka did not inform him that robbery with a use of a knife allegation was a crime of moral turpitude that would render him deportable. If Diaz had known of the consequences, he “would
Opposition to Motion to Vacate
On July 13, 2020, the People filed an opposition to the motion to vacate. The People argued that (1) Diaz was not eligible for relief under
The Trial Court‘s Ruling
At a hearing on July 16, 2020, the trial court heard the motion to vacate the plea despite the fact that Diaz was in federal custody in the interest of fairness—whether the proper vehicle for vacating the plea was habeas corpus or a motion pursuant to
The trial court first found that Diaz‘s motion to withdraw his plea was timely because Diaz was living in Oklahoma when the California law took effect and may not have been aware that relief was available.
However, given the facts and the strength of the case against him, the trial court found it would be highly unlikely that Diaz would be charged with a lesser crime that did not have the same immigration consequences.
It was also unlikely that Tanaka would not have discussed the immigration consequences of Diaz‘s plea with him. The plea was taken two months after the arrest, which gave Tanaka ample time to review Diaz‘s case thoroughly. The probation and police reports would have alerted Tanaka to the fact that Diaz was born in Mexico and that it would be necessary to address the immigration consequences of the plea.
The trial court noted that Diaz was confrontational at the plea hearing, and appeared to have knowledge of the judicial system. Diaz was aware that his temporary status would be expiring in eight to ten months. The court would expect such a proactive defendant to ask about the immigration consequences of his plea.
The trial court stated that although Diaz had proven he was currently facing deportation, he had not shown whether he was facing deportation as a result of the 1989 robbery plea, rather than that the plea was just one factor among others. The crux of Diaz‘s problem appeared to be that he illegally entered the United States. Diaz had also suffered a felony DUI
Defense counsel responded that the plea could be viewed as the cause of the current deportation because if Diaz had not been deported based on his robbery conviction in 2013, he would not have re-entered the country illegally. With respect to the felony DUI conviction, felony DUI is a crime of moral turpitude for purposes of impeachment under state law, but not for immigration purposes under federal law.
The trial court ruled that Diaz failed to prove that his attorney did not adequately discuss the immigration consequences of his no contest plea with Diaz. The court found Diaz‘s declarations were self-serving. They appeared to be pattern declarations with wording that resembled the language in the motion. The court concluded that defense counsel remedied the problem to some extent by offering Diaz‘s handwritten declaration, but stated: “I‘m just not putting a lot of weight on his declaration.” The court noted that Diaz did not mention the DUI convictions he sustained in Oklahoma in the first declaration. The court stated, “I don‘t know if I‘m getting a complete picture [from Diaz‘s declarations].” Moreover, Diaz‘s argument that his attorney could not have told him about the adverse immigration consequences of making the plea because if he had, Diaz would have sought a different resolution was “the circular argument of the end proves the hypothesis.”
The trial court noted that there was a lack of evidence regarding Tanaka and what he knew and did, because he was deceased. Diaz did not prove his attorney‘s “pattern of practice” regarding immigration consequence advisement. The police report stated Diaz was from Mexico, so Tanaka should have been
The trial court stated that, subsequent to making the plea, Diaz was advised of the potential immigration consequences of pleading no contest six times and took a plea each time. Diaz definitely would have become aware of the immigration consequences of his plea when he was deported in 2013. The court noted that, although it was not denying the motion for untimeliness, its analysis took into account that Diaz knew he was facing deportation, but took no steps to address the situation.
If the case had gone to trial, there would not have been a lesser included offense to robbery of which the jury could find Diaz guilty. The court could not “see any reasonable argument that he would have been able -- had he gone to trial, gotten a lesser or better deal, a lesser sentence, lesser charge, and given the amount of evidence against him, that he would have prevailed at trial. It just kind of goes into my factoring as to was it logical when he took the offer that he took. I think it was.” The plea court had advised Diaz that he could face immigration consequences, and that is exactly what happened—Diaz remained in the United States for over 20 years before he was deported.
The court noted that Diaz was asking it to remove a strike offense from his record. Doing so would lead to the inequitable result that a defendant who was illegally in the country could have a strike erased while another defendant who was lawfully in the United States could not.
The court found that the evidence that Diaz would not have taken the plea was not “uncontroverted” as defense counsel asserted. Rather, there was a lack of evidence, as neither Tanaka
DISCUSSION
Legal Principles
As pertinent here,
The defendant, as the moving party under the statute, has the burden to establish prejudicial error by a preponderance of the evidence. (
“[S]howing prejudicial error under
“[W]hen the moving party relies on a mistake of law under
Analysis
We agree with the trial court‘s findings that Diaz‘s declarations were self-serving and not credible.
The evidence does not support Diaz‘s assertions that his attorney did not inquire about his immigration status or advise him of the adverse consequences of his plea, or that Diaz himself did not believe that the District Attorney‘s advisement applied to him.
Diaz knew he had temporary resident status that would soon expire and an upcoming appointment to obtain permanent resident status that he would necessarily miss if incarcerated. Although he was legally in the country at the time he pleaded no contest, he knew that he would lose his legal status if he made
If Diaz‘s attorney had not spoken to him about immigration consequences prior to Diaz making the plea, it seems highly unlikely that Diaz would not have consulted him when Diaz was advised of the potential dangers by the District Attorney just prior to pleading no contest. Diaz was aggressive in his self-advocacy at the plea hearing. He asked multiple questions, spoke directly to the court several times, and attempted to bargain directly with the court as well. Diaz persevered in his efforts to obtain what he wanted, whether it was the significant benefit of a lesser sentence or the return of $17. It is simply not believable that he would leave his immigration status to chance without discussing it with his attorney. The more logical conclusion is that Diaz did, in fact, discuss deportation with Tanaka, knew it would be nearly impossible to avoid, and decided that the slim possibility of success at trial was not worth the risk that he would serve six years in prison.
Moreover, Diaz declared that he was processed by immigration officials prior to being imprisoned for his 1989 conviction, and that they informed him he had been convicted of a deportable offense and would lose his legal resident status (although he would not be deported despite his illegal status).
We further conclude that Diaz has failed to show he was prejudiced—i.e. that there was a reasonable probability Diaz would have rejected the plea agreement if he had correctly understood its actual or potential immigration consequences.
In addition to Diaz‘s declarations, there was contemporaneous objective evidence in his favor. Diaz had entered the country as a six-year-old child; deportation would have separated him from his mother and from the country where he had spent two-thirds of his young life. These are compelling reasons for Diaz to wish to remain in the United States legally.7
We cannot conclude that they are sufficient to meet his burden when weighed against other considerations, however. There is very strong evidence that Diaz made an informed decision to accept the plea bargain that he was offered. There was no other plea offer available to Diaz, as is evident from the plea colloquy and the sentencing hearing. The court stated that
The charges against Diaz were serious, and given his role in the robbery there was not a lesser charge that he could plead to. The benefit of the no contest plea was significant. If he went to trial and lost, he would face six years in prison—twice as much time as he served by pleading no contest.
Diaz‘s criminal history prior to the plea is largely unknown, but the record does not aid his cause. The plea court noted that Diaz stated that he was in juvenile hall the prior year, from which the court inferred he had sustained a prior juvenile petition. Additionally, at sentencing, the plea court stated, “Mr. Diaz, let me just add, that with your attitude, I hope that you live to serve out your three years. When you get up to prison, you are going to find out you are playing with the big boys.” Diaz responded, “I have been there before.” Diaz has not offered evidence that further supports or refutes that he had a prior criminal history.
Finally, Diaz‘s priorities in plea bargaining appear to have been singularly focused on reducing his sentence, with no reference to his immigration status, which would not have been preserved even if his attempts to bargain with the court had been successful. The factors that undermine his credibility, which we
The record demonstrates that Diaz could not have bargained to maintain his legal status. The only way he could have hoped to remain in the country legally is to have taken the case to trial. The chance of his success, while not a consideration in and of itself, would necessarily have factored into his decision. That chance was slim. Diaz was positively identified by the victim as the man who held a knife to his neck, and he was arrested just after the robbery occurred with a bloody knife in his pocket, which was also identified by the victim as the weapon used. The possibility that Diaz was willing to elevate immigration consequences to paramount importance and risk trial by jury in the hope of an acquittal is exceedingly low. When
DISPOSITION
We affirm the trial court‘s order denying Diaz‘s motion to vacate his robbery plea.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.