People v. GonzalezPeople v. Gonzalez
On January 1, 2017, section 1473.7 became effective. That statute allows a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that “[t]he 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.” (
Gonzalez appeals, contending the court erred in denying his motion under
Guilty Plea
In July 2000, Gonzalez was arrested after crossing the border in a vehicle containing 74 pounds of marijuana. He was charged with transportation of marijuana (
Gonzalez ultimately pled guilty to possession of marijuana for sale at a hearing on July 26, 2000 at his arraignment in the high intense drug trafficking area court. At that hearing, two other defendants were present. The court asked the defendants if they could read and understand English. Gonzalez responded in the affirmative. The court then informed the defendants of the potential immigration consequences of a guilty plea: “Each of you should understand if you‘re not citizens of the United States, your guilty plea will affect your status in this country. And it will result in the departure, denial of citizenship or exclusion.”2
The court also asked Gonzalez if he read and understood his change of plea form. Gonzalez answered, “Yes.” Gonzalez‘s change of plea form appears in the record. As
The form also contained the following statement signed by Gonzalez‘s attorney:
“I am the attorney for the defendant in the above-entitled case. I personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea. I personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this form and any addendum. I concur in the defendant‘s plea and waiver of constitutional rights.”
The court subsequently sentenced Gonzalez to custody for 74 days and placed him on probation for three years. After serving his time in custody, Gonzalez was deported on October 6, 2000.
The Motion to Vacate
On August 29, 2017, Gonzalez filed a motion to vacate conviction based on
The People opposed Gonzalez‘s motion, contending Gonzalez could not prove by a preponderance of the evidence that there was a prejudicial error damaging his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea.
At the hearing on Gonzalez‘s motion, Gonzalez‘s counsel offered the testimony of two witnesses: Jose Luis Guerrero and Leticia Gonzalez (Leticia).
Guerrero, who was a deputy public defender at the time, represented Gonzalez when he pled guilty. Guerrero had no independent recollection of Gonzalez‘s case. However, after reviewing his office‘s case management system, he acknowledged that it appeared he had been assigned Gonzalez‘s case in 2000. Guerrero stated that, in 2000, a criminal defense attorney would provide a defendant with a standard immigration advisal,
For example, after Padilla, supra, 559 U.S. 356, the Office of the Public Defender would instruct its attorneys that a defendant who has a permanent record should plead not guilty at the initial arraignment so the attorney can investigate the immigration consequences and then try to obtain a more favorable disposition (relating to immigration if applicable). Additionally, Guerrero confirmed that in 2000, the Office of the Public Defender had no specific policy with respect to how immigration consequences should be investigated or handled. At that time, the custom was for an attorney to advise a defendant consistent with the language on the change of plea form. Guerrero explained it was his practice to review the change of plea form with a defendant and make sure the defendant understood each section before initialing and signing the form.
Also, Guerrero testified that he had no reason to believe that Gonzalez was told anything regarding the immigration consequences of pleading guilty beyond what was
Guerrero stated that he did not believe Gonzalez had much of a defense because he confessed. As such, Guerrero considered the offer from the prosecutor was the best one Gonzalez would receive.
Leticia, Gonzalez‘s wife, also testified at the hearing on Gonzalez‘s motion to vacate. Gonzalez explained that at the time of Gonzalez‘s arrest, they had twins, who were suffering from a variety of ailments and needed frequent medical attention. The income Gonzalez was earning at the time was essential to the well-being of his family because Leticia was not working.
Leticia stated that she attempted multiple times since Gonzalez was arrested to secure legal assistance to help with immigration issues. However, no attorney would help. To the extent an attorney responded to Leticia‘s request for representation, the attorney would inform Leticia there was nothing to be done for Gonzalez. Only after
Leticia testified that she would have supported a longer custody period in 2000 if it allowed Gonzalez an opportunity to stay in the United States legally.
Leticia admitted that, in 2002, Gonzalez was convicted of possession of methamphetamine for sale, criminal threats, and domestic violence. He then was deported shortly after his conviction.3
The parties stipulated that, if called to testify, Gonzalez would state that he would not have pled guilty in this case had he known he was pleading to an aggravated felony guaranteeing his deportation to Mexico with no avenue for relief.
After hearing the witnesses’ respective testimony, the court permitted counsel to argue the matter. In addition to emphasizing Gonzalez‘s family situation, Gonzalez‘s counsel stated that Gonzalez did not appreciate or understand the consequences of pleading guilty. He pointed out that Gonzalez was told he would be deported, but he was not informed that he would be permanently barred from reentering the United States and would never be able to become a citizen. Counsel argued that it was reasonably probable that, if Gonzalez understood the immigration consequences of pleading guilty, he would not have done so. Gonzalez‘s counsel also maintained that in representing Gonzalez,
The prosecutor argued that Gonzalez was properly informed of the immigration consequences of his guilty plea. She also asserted that Gonzalez had not satisfied the evidentiary requirements under
The court denied the motion. In doing so, the court stated that it found Guerrero‘s testimony “more than credible.” The court determined that Guerrero informed Gonzalez on at least two occasions, once in a group setting and another individually, that he would be deported. The court also noted that the change of plea form expressed that a plea of guilty would ” ‘result in removal, deportation or exclusion from admission to this country, and a denial of naturalization.’ ” The court found Gonzalez understood that if he pled guilty, then he would be deported. In addition, the court determined that count 2, which the prosecution dismissed under the plea agreement, carried a four-year sentence and was a factor defense counsel would have considered in negotiating a plea agreement.
DISCUSSION
In Ogunmowo, the court held “[d]e novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant‘s constitutional right.” (Ogunmowo, supra, 23 Cal.App.5th at p. 76.) Such a pronouncement is not controversial. (See People v. Cromer (2001) 24 Cal.4th 889, 894 [courts use independent, de novo review for mixed questions of fact and law that implicate constitutional rights].) However, the court in Ogunmowo implicitly suggested that an appellate court, on direct appeal, can make independent findings of fact, especially when the trial court makes factual findings based on declarations. (Ogunmowo, supra, at p. 79 [concluding the trial court‘s factual determination was not entitled to deference because it was based on statements made in declarations]; ibid. [“The trial court and this court are in the same position in interpreting written declarations.“].) The court based this conclusion on In re Resendiz (2001) 25 Cal.4th 230 (Resendiz). Yet, that case did not involve a direct appeal, but was an original proceeding (petition for writ of habeas corpus). Our high court noted that where the superior court denied habeas corpus relief after an evidentiary hearing and a new habeas petition was filed with the Court of Appeal, the appellate court is not bound
Here, we are not faced with a petition for writ of habeas corpus. Thus, we do not find Resendiz, supra, 25 Cal.4th 230 helpful in establishing the appropriate standard of review. Further, to the extent that the court in Ogunmowo, supra, 23 Cal.App.5th 67 relied on Resendiz to conclude that it could make independent factual findings on a direct appeal, we do not find the court‘s reasoning persuasive. And Gonzalez does not cite to any other case where a court determined that an appellate court should make independent factual findings when addressing an appeal from an order denying a change of plea.
A decision to deny a motion to withdraw a guilty plea rests in the sound discretion of the court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) However, we are mindful that such a motion based on a claim of ineffective assistance of counsel implicates a constitutional right. This is not unique to motions to withdraw guilty pleas. For example, an appellate court reviews a trial court‘s denial of a motion for new trial for an abuse of discretion. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.) Yet, in cases in which a trial court denies a motion for new trial raising ineffective assistance of
A defendant who seeks to vacate a conviction on a claim of ineffective assistance of counsel must establish two things: (1) counsel‘s performance was deficient in that it fell below an objective standard of reasonableness and (2) he or she was prejudiced by that deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).)
Here, Gonzalez maintains if Guerrero advised him consistent with the change of plea form, Guerrero‘s advice would have been “constitutionally deficient.” To this point,
In Padilla, supra, 559 U.S. 356, the United States Supreme Court addressed what constitutes deficient performance under the Strickland test with respect to advising a defendant on the deportation consequences of pleading guilty. In that case, the defendant, a lawful permanent resident, pled guilty to drug charges involving the transportation of a large amount of marijuana in his tractor trailer. The court noted the defendant‘s “crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under
“In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla‘s conviction. [Citation.] . . . Padilla‘s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla‘s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla‘s plea could easily be determined from reading the removal statute, his
deportation was presumptively mandatory, and his counsel‘s advice was incorrect.” (Id. at pp. 368-369.)
The court determined that to provide effective assistance of counsel, “counsel must inform her client whether his plea carries a risk of deportation.” (Padilla, supra, 559 U.S. at p. 374.)
In Rodriguez-Vega, supra, 797 F.3d 781, the Ninth Circuit, following Padilla, concluded where a defendant‘s conviction of a removable offense renders deportation “practically inevitable,” counsel is required to advise his or her client that the “conviction rendered [his or her] removal virtually certain, or words to that effect,” advising of a possibility is not sufficient. (Id. at pp. 786-787, 790.) In other words, “where the law is ‘succinct, clear, and explicit’ that the conviction renders removal virtually certain, counsel must advise his client that removal is a virtual certainty.” (Id. at p. 786, quoting Padilla, supra, 559 U.S. at pp. 368-369.)
The instant matter is not analogous to Padilla, supra, 559 U.S. 356 or Rodriguez-Vega, supra, 797 F.3d 781. Unlike Padilla, Guerrero did not advise Gonzalez that he did not have to worry about the immigration consequences of pleading guilty. Nor did Guerrero run afoul of Rodriguez-Vega. Below, the superior court found that Guerrero told Gonzalez twice that he would be deported if he pled guilty. Substantial evidence supports this finding.
In addition to finding Padilla, supra, 559 U.S. 356 and Rodriguez-Vega, supra, 797 F.3d 781 factually distinguishable from the instant matter, we also conclude they are
Padilla, supra, 559 U.S. 356 changed this as explained in Chaidez v. United States (2013) 568 U.S. 342 (Chaidez). In that case, the United States Supreme Court explained that Padilla had had the effect of suddenly changing the nature of immigration issues from being “collateral consequences” of pleas to something unique, roughly akin to direct consequences. (Chaidez, supra, at p. 349.) The United States Supreme Court concluded that Padilla had created a new affirmative obligation on trial counsel to understand and accurately explain the immigration consequences of a plea to a defendant before the entry of that plea where no such duty had existed before. This rule was not based on prevailing professional standards but, rather, on a determination that immigration consequences were potentially so profound that trial counsel had an obligation to accurately advise their clients about them. (Chaidez, supra, at p. 353.) Therefore, the court in Chaidez held that, under the rules set out in Teague v. Lane (1989) 489 U.S. 288, the Padilla opinion
As such, Guerrero had no affirmative obligation, under Padilla, supra, 559 U.S. 356, to advise Gonzalez of the immigration consequences of his plea at the time that plea was taken. That said, Guerrero did advise Gonzalez that he would be deported if he pled guilty. However, Gonzalez insists that was insufficient because: (1) Guerrero had the obligation to advise Gonzalez that a guilty plea also would result in his exclusion from the United States and the denial of naturalization; and (2) Guerrero had the obligation to negotiate a more immigration favorable plea. Gonzalez nevertheless does not provide any authority that required Guerrero, in August 2000, to provide this type of advice or negotiate this kind of plea. As such, Guerrero‘s representation of Gonzalez did not fall below the then-contemporary reasonable objective standard of practice. Thus, Gonzalez has failed to satisfy the first prong of the Strickland test and his claim of ineffective assistance of counsel must fail.
Perhaps in recognition that Padilla, supra, 559 U.S. 356 does not apply retroactively to his case, Gonzalez also argues that California imposed an independent pre-Padilla duty on trial counsel to inform their clients of the immigration consequences of their pleas. This argument is unavailing.
Gonzalez‘s reliance on recently enacted sections 1016.2 and 1016.3, which were intended to codify both the Padilla requirements and any existing California decisional
Second, section 3 creates a strong presumption that changes to the Penal Code are to be applied prospectively only, unless it is ” ‘very clear’ ” from either the language of the statute or extrinsic sources that the Legislature intended retroactive application. (People v. Brown (2012) 54 Cal.4th 314, 324.) Sections 1016.2 and 1016.3 contain no such statement of legislative intent and, given section 1016.2‘s repeated references to the Padilla decision (559 U.S. 356), it is clear that the Legislature did not intend that sections 1016.2 and 1016.3 apply retroactively. Moreover, we find it telling that, although Gonzalez cites to sections 1016.2 and 1016.3 as support for his position here, he offers no argument that those statutes should be applied retroactively.
Similarly, we conclude Gonzalez‘s reliance on People v. Soriano (1987) 194 Cal.App.3d 1470, People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio), and People v. Bautista (2004) 115 Cal.App.4th 229 (Bautista) is misplaced. In Soriano, the defendant claimed that he asked his attorney if he would be deported if he pled guilty. The attorney
Barocio, supra, 216 Cal.App.3d 99, similarly did not create an independent pre-Padilla duty to advise defendants of immigration consequences of their pleas. In that case, the defendant‘s trial attorney failed to seek a judicial recommendation against deportation. (Barocio, supra, at p. 103.) There was no issue about counsel‘s advice to
Finally, we conclude that Bautista, supra, 115 Cal.App.4th 229 is not helpful to Gonzalez. The evidence in Bautista showed that the defense attorney‘s strategy was simply to bargain for “the most lenient sentence possible.” (Id. at p. 238.) However, an immigration attorney provided a declaration as an expert witness that in at least five cases in which he was personally involved, the prosecutor agreed to allow a defendant charged with drug sales to ” ‘plead upward,’ ” defined as pursuing a negotiated plea for a violation of a greater offense that would carry a longer prison sentence but not result in deportation. (Ibid.) The defense attorney never contemplated such a strategy. (Ibid.) And the expert witnesses opined that the defense attorney‘s representation of the defendant fell below objective standards of reasonableness. (Id. at pp. 239-240.) The appellate court issued an order to show cause to the trial court for a reference hearing to
In summary, this case highlights the difficulties of a motion under
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O‘ROURKE, J.